Filed 11/29/18 In re A.P. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Kern County. Raymonda B. Marquez, Judge.

Susan M. O’Brien, under appointment by the Court of Appeal, for Defendant and Appellant.

Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Maria N. (mother), is the mother of five children. The two youngest girls alleged that mother’s boyfriend, Rafael G., touched them in an inappropriate, sexual manner. The juvenile court sustained Welfare and Institutions Code[1] section 300 petitions filed on behalf of the two girls. Mother contends the evidence was insufficient to support the juvenile court’s jurisdictional findings. Mother also contends the juvenile court erred in removing the girls from her custody at disposition. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Section 300 petitions were filed on behalf of two of mother’s daughters, A.P. (A.) and P.P. (P.) on April 19, 2017. As to P., the petition alleged that P. was at risk of serious physical harm pursuant to section 300, subdivision (a) because mother hit P. with various objects, including a belt. Section 300, subdivision (d) allegations alleged that P. had been sexually abused by mother’s boyfriend, Rafael, and that mother was aware of the sexual abuse but continued to allow Rafael to have access to P. As to A., the petition alleged section 300, subdivisions (a) and (d) allegations. It was alleged that A. was at risk of suffering physical harm because of the physical abuse of P. It also was alleged that A. had been sexually abused by Rafael and that mother continued to allow Rafael to have access to A., even though mother was aware of the abuse.

The social study prepared for the detention hearing stated that on April 16, 2017, one of the girls told their aunt that Rafael was “doing nasty things” to them. They reported being touched inappropriately “on their vagina area and their butt.” They also told the aunt mother hits them with a belt. P. told her aunt that Rafael “kisses me like an adult and touches my privates.” A. stated Rafael “does this to me” and started to cry. P. also stated Rafael put his hand inside her and his “privates in back” of her. A. said Rafael put his “privates” “where I do number two.” The girls indicated Rafael had done this several times. The aunt contacted law enforcement.

A forensic interview of the two girls was completed on April 18, 2017. P. indicated that Rafael kissed her on the lips, took out his “private” and put it on A.’s “privates.” P. said Rafael also “took out his weenie and put it in my private and didn’t let me go.” P. told her mother what happened. P. also reported being hit with a belt and another object by mother; she had a mark on the back of her right leg.

In A.’s forensic interview, she indicated mother hits the children with a belt and a sandal. A. reported Rafael taking off his underwear “and taking out his private.” She “felt” Rafael’s private as he was behind her and “pushing it in there.” A. said Rafael pulled her shorts down to do this. A. reported her mother had allowed Rafael to move back into their home.

The social worker contacted Rafael on April 18, 2017. He declined to speak with the social worker and referred her to his attorney. The social worker spoke with mother on April 18. After telling mother what the girls had reported in their forensic interviews, mother was asked if she believed the girls. Mother stated, “[N]o.” Mother questioned why the girls did not report Rafael to someone at their school or church “if they were being sexually abused.”

The social worker notified mother the girls stated they previously told mother about the sexual abuse. Mother denied being told. Mother wanted the children “medically checked.” Mother acknowledged hitting all her children with a belt.

The detention social study disclosed that mother’s boyfriend, Rafael, had a substantial criminal history, with at least seven convictions.

This social study also noted mother had been the subject of multiple referrals to the Kern County Department of Human Services (department) over the years. In 2004, the referral was found inconclusive; in 2007, the referral for general neglect was substantiated. Four referrals made in March 2011 alleging general neglect and emotional abuse were evaluated out or eventually deemed unfounded. A referral made in April 2011 alleged general neglect and physical abuse of the children; it was deemed unfounded. A referral made in August 2011 alleged physical and emotional abuse; it was deemed unfounded.

A referral again was made in November 2011, alleging general neglect and physical abuse. Despite the children reporting that mother hits them with a belt and an adult reporting the children had been left alone, the department deemed the referral unfounded. A referral received in August 2012 alleged the children were left alone at night and physically abused by mother; the referral was deemed unfounded.

In August 2012, another referral was received. It was reported that mother hits them with a belt and objects, threatens them if they should tell, and stated mother calls at least one child inappropriate names such as “culera,” meaning “asshole.” The department deemed the referral unfounded as to mother.

The detention social study noted the two girls had been placed in a temporary shelter. This social study opined that the girls should be removed from mother’s custody as they would be at risk if they were to remain in mother’s home.

The initial detention hearing was held on April 20, 2017. The department submitted the matter based on the detention report. Mother denied the allegations of the petition but submitted the matter on the issue of detention. Presumed father, C.P., asked that the girls be placed with their paternal aunt.

The juvenile court admitted the social study into evidence and based upon the social study, found there was a prima facie showing the girls came within the provisions of section 300. The juvenile court also found there was “no reasonable means to protect the children’s physical or emotional health without removing the children from the parent’s physical custody.” The girls were ordered detained from their mother.

On May 9, 2017, the juvenile court gave the department discretion to place the girls with their paternal aunt.

The matter apparently was referred to mediation. Mother planned to contest the jurisdictional allegations.

The social study prepared for the May 30, 2017 jurisdiction hearing[2] contained detailed statements from A. and P. regarding the sexual abuse by Rafael and mother’s physical abuse. It also reported that mother admitted hitting the girls with a belt. P. showed the social worker the marks and bruises on both her legs where mother had hit her with a belt. P. did not want to return to mother’s home because Rafael was there and because mother hit her with a belt; she wanted to live with her aunt. A. also indicated she did not want to return to mother’s home because of Rafael. Both girls indicated they had told mother what Rafael did to them, but mother continued to allow him in the home.

In the jurisdiction social study, the social worker reported speaking with mother about the allegations against Rafael made by A. and P. Mother told the social worker she did not believe the girls. Mother claimed the girls’ father was behind the allegations against Rafael and that father was “manipulative.”

The social worker interviewed mother’s three other children. All three of them denied ever seeing Rafael engage in any inappropriate conduct with either A. or P. They did, however, admit that mother hits her children with a belt.

The social study contained detailed information from the report prepared by the police department after their interview of A. and P. regarding the sexual abuse by Rafael. The police report concluded by recommending that Rafael be charged with two counts of violating Penal Code section 288, subdivision (a), lewd and lascivious acts on a minor, and a violation of Penal Code section 273a, subdivision (a), child endangerment. The police report also recommended that mother be charged with child endangerment.

The jurisdiction social study concluded with the recommendation the allegations of the petition be found true.

On May 30, 2017, an initial jurisdictional hearing was held. The matter was continued for a contested hearing on August 22, 2017.

A supplemental social study filed on July 26, 2017, summarized and repeated the information about sexual abuse, failure to protect, and physical abuse that was contained in the prior social studies. At the time this supplemental social study was filed, A. was nine years old and P. was seven years old.

The supplemental social study dated August 16, 2017, prepared for the continued jurisdiction hearing, repeated the allegations that the girls had been sexually abused and that mother had failed to protect the girls. This social study asked that the allegations of the petition regarding sexual abuse by Rafael and mother’s failure to protect the girls from Rafael be found true. It also requested that the allegations of physical abuse be dismissed without prejudice.

The matter was continued from the August 2017 hearing date. Eventually, the matter was before the juvenile court for a contested jurisdiction and disposition hearing on March 1, 2018. The juvenile court had before it the petition and the social studies, including the supplemental social study reports. The department moved to dismiss the allegation pertaining to physical abuse and submitted the matter based on the social studies as to the allegations of sexual abuse and failure to protect.

The social worker, Christina Alegria, was called to testify by mother’s counsel. Counsel asked Alegria if prior referrals to the department found it “highly [probable] that the children’s father” had manipulated the situation to generate one or more of the prior referrals. Alegria responded that she had no personal knowledge of the prior referrals, but the file did so state with respect to two of the earlier referrals.

Alegria was asked if she investigated whether father manipulated A. and P. into making the current allegations. Alegria responded that father did not visit regularly and did not have a close relationship with A. and P. and she “did not think that [father] could manipulate them” into making the allegations.

When Alegria was asked whether she had “anything other than what the children said themselves to indicate that these allegations are true,” Alegria responded that she had the “forensic interview.” Counsel replied that the forensic interview was “[w]hat the children said” and Alegria replied “[r]ight.”

On cross-examination Alegria testified that father apparently was unaware of the girls’ allegations against Rafael until the police were called. The officer asked father directly about the history of referrals to the department and father “stated that he is not making this up.” Alegria also testified that the girls’ version of events was consistent each time they were interviewed. Alegria also noted that mother had been admonished not to talk with the girls about the sexual abuse allegations, but mother had disregarded the admonishment and spoken with the girls about the allegations.

Mother’s counsel called mother to testify. Mother testified she had five children, three of whom were currently living with her. Mother testified she was first notified of the sexual abuse allegations against Rafael when she went to pick up A. and P. from their aunt’s house in April of 2017. Mother testified Rafael had lived with her while they were in a relationship commencing around August 2015 and ending around August 2016. Mother was not concerned about the way Rafael interacted with A. or P. and neither A. or P. had ever complained about Rafael to her, except sometimes that she was “spending more time with Rafael.”

Mother testified she was concerned that father was manipulating A. and P. to make the allegations because “he’s never left me alone, and he’s always kept bothering me.” Mother testified that Rafael was never alone with A. and P., even when mother and Rafael were living together. Mother did not believe the girls were “sexually touched and abused” by Rafael and claimed the girls admitted to her they lied about the sexual abuse during a supervised visit, but no one else heard them admit to lying. Mother testified she was not in a current relationship with Rafael and would not allow him around A. and P. if they were returned to her.

Cr.P. (Cr.), one of A. and P.’s older siblings, was called to testify. Cr. testified she did not have any concerns about Rafael or his behavior toward her sisters.

Another sibling, Elmer, also was called to testify. Elmer testified he never had any concerns A. or P. were being mistreated or sexually abused by Rafael.

The child A., was ten years old at the time of the jurisdiction hearing. She was afraid to testify with her parents in the courtroom. The parents were excluded from the courtroom pursuant to section 366.26, subdivision (h)(3)(a). A. testified that while she was laying down, Rafael “got on top” of her and “put his private part where I go number two.” A. told her mother about what Rafael had done when mother got home from work. A. testified that Rafael sexually molested her five times; twice in her home and three times in his home. She told her aunt about Rafael when she saw her aunt at Easter

At the conclusion of testimony, mother’s counsel argued that the “sole evidence” of the sexual abuse allegations came from A. and P., and there was no physical or other corroborating evidence. Counsel asked the juvenile court to find the allegations of the section 300 petition not true. Counsel argued that father was manipulating the girls into making the accusations against Rafael. Counsel stated that if the two girls were returned to mother’s custody, mother would not allow Rafael to be around her children.

Father’s counsel asked the juvenile court to find the allegations true. A.’s testimony was “very compelling,” yet mother did not believe A. and P. had been molested and variously maintained that father or the aunt manipulated the girls. Father’s counsel argued mother would not follow through on assurances to keep Rafael away from her children. Furthermore, mother had not enrolled in any component of her case plan.

Minors’ counsel asked the juvenile court to sustain the allegations of the section 300 petition. Minors’ counsel argued that mother’s testimony and prior statements had been inconsistent, making mother’s testimony “not creditable.”

The department pointed out that the juvenile court was not required to find with a “certainty” that the sexual abuse of A. and P. occurred, only that it is “more likely than not.” There did not have to be “medical evidence” for it to be found true. The department argued that A. and P. were credible, both in A.’s testimony and the forensic interviews of both girls. The department found mother to be less credible and noted that mother had maintained the girls were lying before any investigation had been done. Neither of the girls had recanted their statements. The department also noted that during her forensic interview, if the interviewer started to misstate a fact, A. corrected it; A. did not “just [go] with it because she could have.”

The juvenile court took the matter under submission and set a hearing for March 14, 2018, to deliver its ruling. In articulating its decision, the juvenile court noted that the police officer who took the statements of A. and P. believed them to be telling the truth; there is no evidence that anyone “encouraged” the girls to make accusations against Rafael; and A.’s and P.’s “credibility and truthfulness has only been questioned by their mother in her disbelief of the allegations.”

The juvenile court found Cr.’s testimony at the jurisdiction hearing to be inconsistent with her prior statements. In addition, the juvenile court found mother’s statements about Rafael and when and whether he was living in her home were inconsistent; the police department found mother to be uncooperative when they were trying to investigate; and the police assessed mother’s statements as inconsistent.

The juvenile court found mother’s testimony about the girls recanting their allegations of sexual abuse at a supervised visit, where no one else was informed of or heard the alleged recantations, to be “wholly incredulous.” On the other hand, the girls’ statements to police, in the forensic interview, to the social worker, and in A.’s testimony were “consistent.”

The juvenile court found the allegations of the section 300 petition true. The juvenile court proceeded immediately to disposition and mother’s counsel asked for a contested disposition hearing. The matter was continued to April 25, 2018, for a contested disposition hearing.

At the continued disposition hearing, counsel for mother called the social worker, Alegria, to testify. Alegria testified the department had a concern about providing family maintenance services to mother and sending the girls home to live with mother because of mother “failing to protect her children from sexual abuse and failing to believe her children.” In addition, Alegria cited to the fact that mother had not enrolled in the components of the case plan the department had asked mother to enroll in nearly one year ago, with one exception, and the department was uncertain whether mother had continued contact with Rafael.

The social worker testified she was relying on the interviews of the girls by law enforcement, the forensic interviews of the girls, and A.’s testimony in court in concluding that mother failed to protect. Mother was resistant to participating in any classes to learn how to recognize and protect her daughters from sexual abuse.

Mother also testified at the continued disposition hearing. Mother claimed that the only available classes were offered during her work hours and she was unable to attend. Mother felt that A. and P. would be safe if they were returned to her home. Mother would be willing to have frequent visits by the department to her home and with her children if custody was returned to her.

The juvenile court received the social studies and supplemental social studies into evidence.

Mother’s counsel argued for a return of custody with family maintenance services. Counsel for the minors argued that mother has not been truthful and did not believe “the girls will be safe to go home.”

The department argued the girls would be in danger of further sexual abuse because of mother’s denial. The department noted mother had not completed the courses she was required to complete under her case plan.

The juvenile court found that mother “doesn’t believe the girls” and wanted the girls “to admit that it didn’t happen.” The juvenile court found the statements of the girls to be “competent evidence.” The juvenile court stated it “has found that the girls are competent witnesses and found that their statements were credible and sufficient to find that the allegations were true.” The juvenile court concluded it was “hard” to find the girls would be safe if returned home because mother denies “that any harm ever occurred.” The juvenile court also noted that mother refused to sign consent forms for the girls to receive mental health counseling.

The juvenile court also found that mother failed to complete required classes, even though the department provided bus passes and classes were available during the period of time mother was not working.

The juvenile court found that there was “clear and convincing evidence that there is a substantial danger to the girls’ emotional and physical well-being” and there were “no reasonable means to protect … emotional and physical or emotional health without removing them from the physical custody of their mother.” The juvenile court also found that mother “has made no progress toward alleviating or mitigating the [causes] for the children’s placement in out-of-home care.”

The juvenile court ordered the girls removed from the physical custody of mother and that family reunification services be offered.

Mother filed a notice of appeal on April 25, 2018.

DISCUSSION

Mother contends substantial evidence does not support the jurisdictional finding or the removal order at disposition.

Standard of Review

Jurisdictional findings are reviewed for substantial evidence; we do not reweigh the evidence or exercise independent judgment. (In re D.C. (2015) 243 Cal.App.4th 41, 51.) The standard of review for a disposition order is also substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) An appellate court does not substitute its judgment for that of the juvenile court. (In re Cole C. (2009) 174 Cal.App.4th 900, 918.)

On a challenge to the sufficiency of the evidence to support the jurisdictional findings and dispositional order, we review the record to determine whether substantial evidence supports them. In so doing, we draw all reasonable inferences from the evidence to support the juvenile court’s findings and orders; we review the record in the light most favorable to the court’s determinations; and we defer to the court on issues of fact and credibility. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

The appellant, in this case mother, has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) Evidence from a single witness can be sufficient to support the findings. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

Jurisdiction may rest on a single finding. (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127.) The juvenile court’s jurisdictional findings are based on a preponderance of the evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) The substantial evidence standard is a difficult hurdle to overcome; if there is any substantial evidence, an appellate court must affirm. (D.M., supra, at p. 1128.)

Jurisdictional Findings

Subdivision (d) of section 300 provides that a minor comes within the jurisdiction of the juvenile court if “[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, … 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 or guardian knew or reasonably should have known that the child was in danger of sexual abuse.”

We may affirm the juvenile court’s finding of jurisdiction over the child if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.) Here, the juvenile court found true the allegation that the girls had been sexually abused. The juvenile court also found true the allegation that mother failed to protect the children from sexual abuse when she knew, or reasonably should have known, the children were in danger of sexual abuse.

Mother contends the evidence is insufficient to support these true findings because the evidence submitted at the jurisdictional hearing was contradictory and inconsistent. Mother’s argument ignores the sufficiency of the evidence standard. The question before us is not whether some contradictory evidence exists, but whether substantial evidence supports the juvenile court’s determination. “The power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. [Citation.] All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express independent judgment on the evidence.” (In re A.A. (2008) 167 Cal.App.4th 1292, 1313 [italics added].)

In this case, there is substantial evidence that supports the juvenile court’s determination. A. testified at trial that while she was laying down, Rafael “got on top” of her and “put his private part where I go number two.” A. told her mother about what Rafael had done when mother got home from work. A. testified that Rafael sexually molested her five times; twice in her home and three times in his home.

The juvenile court also had before it the section 300 petition and the social studies, including the supplemental social studies. Juvenile courts may consider the social studies, and the hearsay statements contained therein, as evidence. (§ 355, subd. (b); In re I.C. (2018) 4 Cal.5th 869, 885-886.) A party may object to admission of hearsay statements contained in a social study. (§ 355, subd. (c)(1).) No one objected to admission into evidence of the social studies and the hearsay statements contained therein.

The jurisdictional social study contained detailed information from the report prepared by the police department after its interview of A. and P. regarding the sexual abuse by Rafael. The police report concluded by recommending that Rafael be charged with two counts of violating Penal Code section 288, subdivision (a), lewd and lascivious acts on a minor, and a violation of Penal Code section 273a, subdivision (a), child endangerment. The police report also recommended that mother be charged with child endangerment.

The social worker also interviewed A. and P. regarding the sexual abuse by Rafael and mother’s physical abuse. The social worker included in the jurisdiction social study a report of the interview. P. did not want to return to mother’s home because Rafael was there and because mother hit her with a belt; she wanted to live with her aunt. A. also indicated she did not want to return to mother’s home because of Rafael. Both girls indicated they had told mother what Rafael did to them, but mother continued to allow him in the home.

The results of the forensic interview also were included as part of the social studies. A forensic interview of the two girls was completed on April 18, 2017. P. indicated that Rafael kissed her on the lips, took out his “private” and put it on A.’s “privates.” P. said Rafael also “took out his weenie and put it in my private and didn’t let me go.” P. told her mother what happened.

In A.’s forensic interview, she reported Rafael taking off his underwear “and taking out his private.” She “felt” Rafael’s private as he was behind her and “pushing it in there.” A. said Rafael pulled her shorts down to do this. A. reported her mother had allowed Rafael to move back into their home.

There was testimony contradicting the evidence from A. and P., including from mother and an older sibling, Cr. Both mother and Cr. claimed there was no basis in fact for A.’s and P.’s reports of sexual abuse. However, the juvenile court found Cr.’s testimony at the jurisdiction hearing to be inconsistent with her prior statements. In addition, the juvenile court found mother’s statements about Rafael and when and whether he was living in her home were inconsistent; the police department found mother to be uncooperative when they were trying to investigate; and the police assessed mother’s statements as inconsistent. Furthermore, the juvenile court found mother’s testimony about the girls recanting their allegations of sexual abuse at a supervised visit, where no one else was informed of or heard the alleged recantations, to be “wholly incredulous.”

On the other hand, the juvenile court found the girls’ statements to police, in the forensic interview, to the social worker, and in A.’s testimony to be “consistent.” The juvenile court found the statements of the girls to be “competent evidence.” The juvenile court stated it “has found that the girls are competent witnesses and found that their statements were credible and sufficient to find that the allegations were true.” As the Supreme Court has noted, “ ‘[T]here are particular difficulties with proving child sexual abuse: the frequent lack of physical evidence, the limited verbal and cognitive abilities of child victims, the fact that children are often unable or unwilling to act as witnesses because of the intimidation of the courtroom setting and the reluctance to testify against their parents.’ ” (In re I.C., supra, 4 Cal.5th at p. 886.)

Reviewing the record in the light most favorable to the court’s determinations and deferring to the juvenile court on issues of fact and credibility, it is readily apparent there is substantial evidence supporting the jurisdictional findings. (In re A.A., supra, 167 Cal.App.4th at p. 1313.)

Disposition Order

Mother contends the evidence is insufficient to support the disposition order because the department failed to consider alternatives other than removal from mother’s home to protect the children. The juvenile court found the department had made reasonable efforts to avoid removal of the girls from mother’s home.

The disposition order removed A. and P. from mother’s care and ordered reunification services be provided to mother. A juvenile court has broad discretion to determine what would best serve and protect the child’s interests and to fashion a disposition order in accordance with this discretion. (In re A.L. (2010) 188 Cal.App.4th 138, 142-146.)

To remove a minor from the parent’s care at disposition, the juvenile court must find that there is a substantial danger to the physical health, safety, protection, or emotional well-being if the minor were returned home. (§§ 342, 361, subd. (c)(1).) The parent need not be dangerous, and the minor need not actually be harmed before removal is appropriate; the focus is on avoiding harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)

The juvenile court found that mother “doesn’t believe the girls” and wanted the girls “to admit that it didn’t happen.” The juvenile court concluded it was “hard” to find the girls would be safe if returned home because mother denies “that any harm ever occurred.” The juvenile court also noted that mother refused to sign consent forms for the girls to receive mental health counseling. The juvenile court also found that mother failed to complete required classes and had made minimal progress in her case plan.

Moreover, the department did make reasonable efforts to avoid removal of the girls from the home. A case plan was established for mother, providing that she attend classes on parenting and preventing sexual abuse of her children; mother failed to attend and participate in some instances and in other instances, attended nonapproved classes. The social worker testified mother was resistant to participating in any classes to learn how to recognize and protect her daughters from sexual abuse. Mother refused to cooperate with the department in obtaining mental health counseling for A. and P. and continued to be in denial that A. and P. had been molested.

As we noted, there is substantial evidence supporting the section 300, subdivision (d) findings, all of which remained unaddressed because mother: (1) had failed to participate in the services required by her case plan; (2) made minimal progress toward complying with her case plan; (3) was consistent in her belief that the girls had been manipulated into making accusations against her boyfriend; and (4) did not believe the girls had been sexually molested.

Here, the juvenile court removed the girls from mother’s home and ordered reunification services. Such a disposition protects the girls’ interests. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)

DISPOSITION

The jurisdictional findings and disposition orders are affirmed.