In re Kenneth B.

Filed 3/28/07 In re Kenneth B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County. Margaret S. Henry, Judge. Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant Terry T.

Joseph T. Tavano, under appointment by the Court of Appeal, for Appellant S.T.

Raymond G. Fortner, Jr., County Counsel, and Larry Cory, Assistant County Counsel, for Plaintiff and Respondent.

______________________________

Terry T. and the minor S.T. appeal the orders declaring S.T. and his younger adopted brother Christian T. dependents of the juvenile court, pursuant to Welfare and Institutions Code^[1]section 300, subdivisions (a), (b), (d), and (j) and the findings under section 361 that substantial danger existed to the physical and emotional well-being of the minors, and no reasonable means existed to protect them without their removal from Terry T.s custody. Appellants claim sufficient evidence did not support the courts jurisdictional findings and dispositional orders. Terry T. also claims the juvenile dependency court erred in making findings under section 366.21, subdivision (e) immediately after the disposition hearing. Appellants claims lack merit. The court did not err in concluding Terry T. had inappropriately disciplined the minors and had sexually abused the minors older adopted brother Kenneth B. In addition, the court did not err removing the minors from Terry T. under section 361. Sufficient evidence existed to support the courts finding Terry T. still posed a substantial risk of harm to the minors because he had yet to address the sexual abuse alleged in the petitions. Finally, Terry T. has not shown he suffered any prejudice from the court making findings under section 366.21, subdivision (e) at the conclusion of the disposition hearing. Consequently, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In February 2006, the minors, Kenneth B. (then age 17), appellant S.T. (then age 13) and Christian T. (then age 11) came to the attention of the Department of Children and Family Services (DCFS) when Kenneth B. reported to the Los Angeles County Sheriffs Department that appellant Terry T., who adopted the minors,^[2]had orally copulated Kenneth B. on several occasions in the past.^[3]

When he was first interviewed by the social worker Kenneth B. stated on three occasions Terry T. sexually abused him. Specifically, Kenneth B. stated that when he was 12 years old Terry T. came into his bedroom where he was watching television, removed his shorts and touched his penis. Terry T. then put a pillow over his face and performed oral sex on him for about five minutes. Kenneth B. stated the second incident was similar and occurred a couple of weeks later. Kenneth B. stated the third incident occurred when he was 16 years of age. According to Kenneth B., Terry T. came into his bedroom where Kenneth B. was playing a video game, and Terry T. performed oral sex on him for approximately 10 minutes. According to Kenneth B., he did not tell anyone about the sexual abuse at that time because he felt ashamed and afraid.^[4]

Kenneth B. also reported Terry T. had physically abused him and the other minors. He said once in 2003 or 2004, Terry T. hit him in the chest with a closed fist. Kenneth B. denied Terry T. ever hit him with a belt or other object. According to Kenneth B., he had seen Terry T. hit S.T. with a belt at least three different times, and on one occasion he hit S.T. for approximately 10 minutes. Kenneth B. had also witnessed Terry T. hitting Christian T. with a belt; the last incident was in December 2005. On that occasion, Terry T. hit Christian T. on the buttocks with a belt and Christian T. was also hit on the arm which resulted in bruises, for which Christian T. received medical treatment. Kenneth B. also told the social worker Terry T. would call the children derogatory names. Kenneth B. told the social worker Terry T. was very controlling, and would not let him go on any outings.

Kenneth B. told the social worker of a conversation he had with Terry T. in which Terry T. told Kenneth B. if he made any allegations of sexual abuse against him, Terry T. would be released from jail before DCFS could find a placement for Kenneth B. Kenneth B. also stated that Terry T. said he would not be believed because he had a history of telling lies. Kenneth B. admitted to the social worker that he did in fact have a history of lying and that he told a lot of lies when he was younger.^[5]Kenneth B. further stated that he overheard Terry T. telling the social worker Terry T. was HIV positive. Kenneth B. said since that time he had been afraid of contracting that disease. Kenneth B. also stated he was prompted to report the abuse because of an argument he had with Terry T. concerning Kenneth B. visiting his biological father.^[6]

The detention report also indicated the social worker interviewed S.T. S.T. denied any sexual abuse and stated his belief Kenneth B. was lying about the abuse. S.T. stated that Kenneth B. had been talking about wanting to move in with his biological siblings, and that Kenneth B. did not want to do his chores and had been complaining about not getting enough money from Terry T. S.T. believed Kenneth B. made up the story of sexual abuse because he wanted to move-in with his sister. Christian T., who suffers from ADHD and had significant developmental delays^[7]was also interviewed. He also denied any sexual abuse, and he denied ever seeing Terry T. touch anyone else inappropriately. He stated, however, Terry T. whipped him with a belt and he was taken to the hospital to be treated. The social worker noted that DCFS had a record of the December 2005 incident, and had substantiated allegations of abuse in that case. The detention report also indicates the social worker interviewed Terry T. and he denied ever touching the minors in an inappropriate manner. Kenneth B. was removed and placed him in a foster home. On February 7, 2006, a 12-count petition was filed on behalf of Kenneth B. and S.T. pursuant to section 300, subdivisions (a), (b), (d), and (j).^[8] The allegations under subdivision (a) (serious physical harm), as subsequently sustained by the court, alleged that Terry T. had used inappropriate physical discipline on each of the minors which endangered physical, and emotional health, safety and well being and put them at risk of harm. The sustained allegations under subdivisions (b) (failure to protect) and (d) (sexual abuse) both centered on the claims Terry T. sexually abused Kenneth B. Finally, the allegations under subdivision (j) (abuse of sibling) were premised on both the claims of inappropriate physical discipline and the alleged sexual abuse, and alleged that the abuse and discipline created a detrimental home environment that placed the minors and their siblings at risk of harm.

On February 9, 2006, the court ordered the boys detained and family reunification and monitored visitation for Terry T.^[9] With respect to services the court ordered the DCFS to provide referrals to sex abuse counseling, anger management, parent education and individual counseling.

The DCFS interviewed the minors and Terry T. in preparation for the jurisdiction and disposition report. Terry T. conceded that he had lost his temper and hit the minors with a belt, but also stated that the discipline occurred over a span of three years and that he had reported the incidents to the social workers and had received counseling. The report also noted that Terry T. had been physically, emotionally and sexually abused as a child and had been in therapy since 1991. The report further indicated that Kenneth B. had no interest in returning to live with Terry T. Both S.T. and Christian T. wanted to return to Terry T.s home, though Christian T. indicated that he was fearful of Terry T. and was afraid he might be disciplined by Terry T. The report also stated the view and assessment that Terry T. had taken responsibility for the physical abuse and was enrolled in a parenting and anger management class. It noted that Terry T. had always been very cooperative, and was not a vindictive person. The report concluded: [Terry T.] probably took on more that he could handle in a short period of time considering the minors problems and [Terry T.s] personal history. Anyone of these minors would stress out a person without an abusive history. [Terry T.] is to be commended for the job hes done with [S.]T.[^[10]] In actuality, hes done a good job with all the minors.

At the contested jurisdictional hearing in May 2006, the social worker who prepared the jurisdictional/dispositional report testified. While she conceded that she had not interviewed Kenneth B. in depth about the sexual abuse claims, she had observed discrepancies between what Kenneth B. had told the police and the first social worker about the sexual abuse. She also testified in accord with the report ‑‑ that Terry T. had been cooperative and forthright, she had been trying to get the minors released to Terry T. and that in her view Terry T. did not pose a risk of danger to the minors.

Kenneth B. also testified at the hearing. He restated the details of the three incidents of sexual and physical abuse. He admitted he had a history of lying, and did not report the sexual abuse because he thought no one would believe him. He also told the court that while he lived with Terry T. he was home schooled and limited in his ability to interact with others and engage in outside activities. He testified that while he did not witness any sexual abuse of his adopted brothers he was concerned for their future safety and wanted to see Terry T. punished for what he had done to him. Kenneth B. testified on one occasion he told S.T. about the oral copulation and that S.T. seemed unconcerned about it. Kenneth B. further testified he believed he could ask to be removed from Terry T.s home without making any allegations of sexual abuse; he stated he did not believe he had to fabricate claims against Terry T. in order to leave.

S.T. testified at the hearing. He denied that Terry T. had sexually abused him, but stated that Terry T. had struck him with a belt on four occasions a few years before. He testified that on one occasion in 2004 that when Terry T. struck him the beating had left a mark that was still present on his arm. This notwithstanding, S.T. told the court that he wanted to return home with Terry T., that he felt safe with Terry T. and had thrived in his home. S.T. testified that he did not believe Kenneth B.s claims and testified that when Kenneth B. told him about an incident of oral copulation, Kenneth B. told him it involved a girl, not Terry T. He stated that he would report any abuse if it happened in the future.

Terry T. also testified at the jurisdictional hearing. He admitted being a strict parent and stated that Kenneth B. had been complaining about the restrictions in the home and having to do chores. He stated Kenneth B. had been talking about wanting to move out. Terry T. admitted striking S.T. with a belt in 2003 and hitting Kenneth B. on one occasion, and calling the boys derogatory names. He nonetheless denied all of the sexual abuse claims. He told the court he was currently attending an anger management course, a parenting class, and attending AA six times a week. He stated he had taken a parenting class before and conceded he had struck the boys even after completing the first course.

At the end of the presentation of the evidence the court indicated its view that it found Kenneth B. to be a credible witness and believed that he was telling the truth. The court observed that Terry T.s demeanor while Kenneth B. testified was inappropriate and not, in the courts view, consistent with the behavior of a parent who had been falsely accused of abuse. The court noted that Terry T.s demeanor served to reinforce the courts view that Kenneth B. had been truthful. The court also observed that it was appalled when Terry T. testified that he was not interested in reunifying with Kenneth B.; the court commented that Terry T.s conduct did not appear to be fatherly. Nonetheless the court took the matter under submission so that she could review the reports and inconsistencies in Kenneth B.s allegations.

The next court day the court announced its ruling. The court stated that it believed the inconsistencies between what Kenneth B. told the police and the social worker were explainable based on the manner in which police officers take notes and based on Kenneth B.s manner of speaking very quickly. The court stated it had discounted the views of the social worker who testified because she had not conducted an in depth interview of Kenneth B. The court reiterated its view from the day before that Kenneth B. seemed more credible than Terry T., further noting that while Kenneth B. testified he had tears in the corners of his eyes. The court stated it had no question about Kenneth B.s veracity and believed he had told the truth. The juvenile court found the allegations as amended^[11]in the petitions to be true and declared the minors to be dependents of the juvenile court under section 300, subdivisions (a), (b), (d) and (j). The court ordered the DCFS to prepare a supplemental report containing recommendations from S. T.s and Christian T.s therapists concerning whether the boys could return home with Terry T. and specifically with respect to Christian T., address his continued fear of Terry T. The court also requested a supplemental report to address Terry T.s progress in his programs.

At an interim hearing on June 29, 2006, the court indicated it had received an interim report concerning Terry T.s progress. In the report it stated that Terry T. had completed a parenting and anger management class. The report also attached a letter from Terry T.s therapist who had been treating him on an individual basis since 2000. In the letter the therapist stated that she had worked with Terry T. over the years on anger management and parenting issues, that he had always been open about his anger issues. She believed that Terry T. always put the needs of the children first and never had any reason to suspect that Terry T. was sexually abusive to any of the children. She stated she had an expertise in domestic violence and had worked in the field as a therapist for thirty years and could recognize the subtle clues of abusive behavior. She conceded that sexual abuse presented a different issue than those she had been working on. At the hearing the court stated that it appeared Terry T. had yet to make any progress concerning the sexual abuse claims and it did not appear Terry T. had received any counseling on those issues. The court referred to the therapists letter, stating that the court could not understand how the therapist could be treating Terry T. with respect to the sexual abuse claims since the therapist did not believe Terry T. had committed the abuse.

The contested disposition hearing occurred approximately two weeks later on July 14, 2006.

Terry T.s therapist testified concerning his treatment. She testified that while she had taken some courses and attended some seminars concerning sexual abuse she did not have any background in treating those accused of sexual abuse. She stated that as of the hearing she and Terry T. had discussed the sex abuse allegations a few times. She testified Terry T. was still denying the allegations, but felt she could make progress on them with him. The therapist conceded that Terry T. had physically abused the children even after she had worked with him on anger and parenting issues. She testified that, in her view, Terry T. did not pose a risk of harm to S.T. and Christian T. if they were released to him. She also opined that because more eyes were watching the situation and the boys were aware of the prior claims, that the risk of future incidents of abuse was decreased. She believed that S.T. could be safely returned home, and Christian T. could slowly be reunited, since he was more fragile.

Rather than removal, Terry T. argued the court should order less restrictive alternatives including, that family preservation services remain in place and that all parties undergo counseling; allow S.T. to return with unmonitored visits for Christian T.

The court stated it found by clear and convincing evidence that a risk existed to the minors pursuant to section 361 and that there were no reasonable alternatives to protect the children without removing them. Specifically, the court found Terry T. continued to pose a substantial risk to the children because he had yet to deal with the sexual abuse issues. The court expressed its view that Terry T.s therapist was not qualified to treat him for the issues and that he had made no progress on them. Thus, the court stated that the risk of sexual abuse remained. The court ordered Terry T. to participate in individual therapy with a qualified therapist. In the courts view, Terry T. was not an out of control pedophile and so the court did not order him to participate in the Child Sexual Abuse Program (CSAP), which in the courts view, might be too conservative about returning the children to Terry T. The court expressed its view that the children would most likely be returned to Terry T. at some point and was anxious to have them returned. Nonetheless, the court believed Terry T. needed more time to deal with the sex abuse issues. The court suggested that after approximately three months of therapy it would be appropriate to have additional evidence concerning Terry T.s progress and whether he continued to pose a risk. The court also stated it was appropriate to continue unmonitored day visitation for the minors and Terry T. The court rejected the request for unmonitored overnight visits until the court heard additional evidence concerning Terry T.s progress in sex abuse treatment. The court set a scheduled progress hearing for October 2006.

At the conclusion of the dispositional hearing, the court and counsel agreed that because the sixth-month review date was only two weeks away, they would immediately proceed to the six-month, section 366.21, subdivision (e) review findings, which the court made based on the evidence and arguments then before it.

Terry T. and S.T. appeal.

DISCUSSION

A parent may seek review of both the jurisdictional and dispositional findings on an appeal from the dispositional order. (In re Cynthia D. (1993) 5 Cal.4th 242, 249.)

At the jurisdictional hearing the juvenile court determines whether the allegations in the petition that the minor comes within section 300 (and therefore within the juvenile courts jurisdiction) are true. The courts jurisdictional findings must be based on a preponderance of the evidence. (Id. at p. 248; see Welf. & Inst. Code, 355.) If the court finds jurisdiction under section 300, it declares the child a dependent of the juvenile court and proceeds to the disposition phase, where the court considers whether the child should be removed from the parents.

The guidelines and limitations for removal of a child from the custody of the parents are set forth in section 361. Section 361 provides, in pertinent part:

(c) A dependent child may not be taken from the physical custody of his or her parents . . . whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5) . . . :

(1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. . . . (Welf. & Inst. Code,  361, subd. (c).)

At the dispositional phase of dependency proceedings the burden of proof is clear and convincing evidence. (See Welf. & Inst. Code, 361; In re Sheila S. (2000) 84 Cal.App.4th 872, 881.)

On appeal, the substantial evidence test is the appropriate standard of review for both the jurisdictional and dispositional findings. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) Under the substantial evidence test, appellate review is circumscribed. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734 [appellate court must examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defers to the lower court on issues of credibility of the evidence and witnesses].) It is our duty to determine whether the courts dispositional order is supported by substantial evidence. The term substantial evidence means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. (See In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm. With these principles in mind, we examine appellants contentions.

On appeal, S.T. argues neither the juvenile courts jurisdictional findings nor the dispositional order are supported by sufficient evidence. Terry T. joins in these arguments and asserts additional, albeit identical claims as to Christian T. Terry T. also argues the courts findings at the section 366.21, subdivision (e) proceeding are not based on sufficient evidence. As we shall explain, none of these claims has merit.

I. Jurisdictional Findings

A. Section 300, subdivisions (a) and (j)physical discipline of the minors.

Section 300, subdivisions (a) & (j) provide:

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:

(a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the childs parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the childs siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, serious physical harm does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury. (Welf. & Inst. Code,  300, subd. (a).)

(j) The childs sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child. (Welf. & Inst. Code,  300, subd. (j).)

Here the court sustained allegations supporting 300, subdivision (a) and two allegations under subdivision (j) concerning Terry T.s use of inappropriate physical discipline on the minors.^[12]

Before this court appellants assert the DCFS failed to demonstrate the incidents of physical discipline alleged resulted in serious physical harm or caused a substantial risk of serious harm as required by section 300, subdivision (a). Appellants assert that nearly all of the incidents occurred two to three years prior to the minors detention and that there was no evidence Terry T. posed any current risk to them. They urged there was no reason to believe the inappropriate discipline might continue in the future, especially in view of the parenting classes Terry T. had taken. They also assert that those few prior incidents did not cause any serious harm.

In our view, sufficient evidence supported the courts findings under section 300, subdivisions (a) and (j) that Terry T. used inappropriate physical discipline. Terry T. concedes he used inappropriate discipline; he admitted to striking the minors. We are not impressed with appellants attempt to downplay the seriousness of the incidents (especially that concerning S.T. and Christian T.), or the effort to suggest the incidents happened in the distant past. The DCFS presented evidence Terry T. struck each of the children with either his closed fists or a belt. S.T. testified on four occasions between 2003 and 2004, Terry T. struck him with a belt. According to Kenneth B. some of the beatings lasted between 10 and 15 minutes. One of S.T.s injuries was still visible in 2006, two years after it was inflicted. He beat Christian T. at least two times. The last beating occurred only two months before the children were detained; Christian T. had to go to the hospital and receive treatment as a result of that incident. Based on the nature of the incidents sufficient evidence supported the conclusion at the jurisdictional hearing Terry T. continued to pose risk of harm to the minors. We observe the inappropriate discipline occurred notwithstanding evidence Terry T. was participating in ongoing individual therapy concerning anger and parenting issues, and after he had completed at least one parenting course. Given that these incidents occurred notwithstanding the ongoing therapy we are convinced the children were at a continued risk. In view of all of the evidence, we cannot say the court erred in its jurisdictional findings as to the minors under section 300, subdivision (a).

B. Section 300, subdivisions (b) (d) & (j)sexual abuse of Kenneth B.

Section 300, subdivisions (b) & (d) provide, in pertinent part:

(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.

(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 or guardian knew or reasonably should have known that the child was in danger of sexual abuse. ( 300, subds. (b) & (d).)

The factual allegations asserted under subdivisions (b), (d) and (j) are substantially identical and concern the allegation Terry T. sexually abused Kenneth B.^[13]

Appellants assert sufficient evidence did not support the courts findings under section 300, subdivisions (d), (b) and (j) that Terry T. had sexually abused Kenneth B. (and that therefore the other minors were at a risk of harm as a result of the alleged abuse). While they recognize the sufficiency of the evidence standard of review gives great deference to the juvenile dependency courts factual findings, appellants nonetheless maintain the evidence presented, namely Kenneth B.s testimony concerning the abuse was legally insufficient. They assert evidence Terry T. sexually abused Kenneth B. was unbelievable, and incredible. Appellants point out: (1) Kenneth B. had a history of telling lies, including lies concerning his caretakers; (2) inconsistencies in the description of the sexual abuse (i.e., the number of incidents, when they occurred and what transpired) reported to the social worker, the police and at the jurisdictional hearing; and (3) Kenneth B. had a motive to lie about Terry T.Kenneth B. wanted to move out to live with his biological family and he did not want to follow Terry T.s rules. In view of these circumstances appellants maintain the juvenile court erred in crediting Kenneth B.s claims of abuse. We cannot agree.

The juvenile dependency court was privy to all of the matters appellants described and notwithstanding them, the court determined Kenneth B. was telling the truth. In our view, the trial court did not err. First, with respect to Kenneth B.s history of lying, we note that from his first interview with the social worker to his testimony at the jurisdictional hearing Kenneth B. was always forthright about his history of dishonesty; and from this candor the court could glean he was telling the truth about Terry T. Second, concerning the claim Kenneth B. had motive to lie, Kenneth B. acknowledged he wanted to move out, but his desire to leave does not prove Kenneth B. would fabricate a claim of abuse to do so. It would not be unreasonable for an abuse victim to be motivated to come forward so that he or she could be removed from the situation. In addition, Kenneth B. testified that he knew he could leave Terry T.s custody without fabricating a story of abuse; he knew he did not have to lie about Terry T. to be removed from the home. Finally, with respect to the inconsistencies in Kenneth B.s reports of abuse, the juvenile dependency court indicated it examined the evidence and determined that they were not significant or did not exist based on the manner in which police officers prepare their reports and Kenneth B.s manner of speaking. The trier of fact is particularly well suited to make such an assessment of the evidence and we are not in a position to second guess it. Furthermore, the most conspicuous inconsistency concerning the number of incidents was reasonably explained by Kenneth B. He testified that based on advice from the police officer (that one of the alleged incidents of abuse was actually not a complete act and thus did not qualify as an incident) Kenneth B. told the social worker Terry T. had abused him only three times rather than it was four.

There is nothing about Kenneth B. or his version of events that is so glaringly implausible or unbelievable such that we are persuaded that the court erred in its determination. The dependency court explicitly grounded her decision on what she saw at the hearing; the court explained why it believed Kenneth B.he seemed credible to the bench officer, while Terry T.s denials and demeanor seemed untrustworthy. We defer to the dependency courts determination on such matters. (See People v. Parrison (1982) 137 Cal.App.3d 529, 536 [the trial court is vested with the power to judge the credibility of witnesses . . . weigh the evidence and draw factual inferences]; In re P.A., supra, 144 Cal.App.4th at p. 1344 [in the context of dependency proceedings, issues of fact and credibility are questions for the trier of fact.].) At most appellants have shown conflicts in the evidence existed. The juvenile dependency court, however, is the proper entity to resolve those conflicts and make those credibility determinations. Appellants have not shown the lower courts jurisdictional findings exceeded the bounds of reason. In view of all of the foregoing, we conclude sufficient evidence supported the trial courts jurisdictional findings under section 300, subdivisions (b), (d) and (j).

II.                Dispositional Order

Appellants claim that even if this court determines the juvenile dependency courts exercise of jurisdiction was proper the courts dispositional order cannot stand because it was not supported by sufficient evidence. Specifically they assert: (1) the court did not have clear and convincing evidence that a return to Terry T. posed a substantial danger to the physical health and emotional well-being of the children as required by section 361, subdivision (c)(4); and (2) the court failed to make the requisite findings under section 361, subdivision (d)that there were no other reasonable means of protecting the children other than removal from Terry T.s custody. We examine these contentions in turn.

A. Evidence of Risk

Appellants assert there was insufficient evidence that Terry T. presented a substantial risk of harm to S.T. and Christian T. They point out the DCFS social worker and the Terry T.s therapist thought there was no risk and the boys wanted to return home. They also assert Terry T. was forthright about his use of inappropriate discipline, had completed parenting and anger management courses, was involved in ongoing individual therapy and that by all accounts the children had always thrived in his home. Appellants suggest that because the juvenile court allowed Terry T. to have daily unmonitored visitation with the minors and wanted to see them reunited, the juvenile dependency court did not believe Terry T. posed a substantial danger.

We are not convinced. The factors appellants point to as to why Terry T. no longer posed a risk to the minors are not adequate. As the juvenile court pointed out on several occasions, none of the social workers or Terry T.s therapist appeared to have sufficient familiarity with sexual abuse cases (or the details of Kenneth B.s sex abuse claims) so their respective opinions the children could be safely returned are unpersuasive. In addition, this case involved two types of abusephysical, which Terry T. admitted, and sexual, which he denied.

The court properly found a continued risk of inappropriate physical discipline existed because: (1) the physical discipline had occurred notwithstanding the fathers therapy in the past; (2) Christian T. was still afraid six months after being removed from Terry T.s home; and (3) Terry T. had not completed sufficient individual counseling to assure the court he would not abuse them again.

In addition, considering the sexual abuse, there was substantial evidence supporting the courts finding Terry T. had yet to deal with any of the issues related to the sexual abuse claim and that his therapist was not qualified in the area of sexual abuse to assist him in addressing the issues. Indeed, Terry T. had not yet acknowledged the sexual abuse. Such a denial is relevant to determining whether a child should be returned to the parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1043-1044 [[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision. This most commonly is significant in cases where a person having been adjudicated to have perpetrated sexual or physical abuse on a minor in his [or her] custody, vigorously denies the abuse and, because of this denial, is likely to be resistant to therapy or treatment necessary to effect behavioral changes to insure the minor will not be at risk if placed in his [or her] custody].)

With respect to the courts order permitting unmonitored day visitation and the provision allowing Terry T. to receive individual sexual abuse counseling rather than require him to participate in the CSAP program, we do not agree with appellants assertion these orders undercut the courts finding Terry T. continued to pose substantial risk to the minors nor do they suggest that the court did not intend for Terry T. to acknowledge the sexual abuse. The fact that the court allowed unmonitored visitation does not undermine its conclusions with respect to whether the children should be removed. The court articulated its view the risk persisted notwithstanding the liberal visitation order. Indeed the court rejected a request for unmonitored overnight and weekend visitation, which clearly indicates the courts belief a risk existed. Instead the courts visitation order simply shows the courts view this was not a typical sex abuse case and that the court wanted to work towards the reunification of the family. Moreover, contrary to what appellants suggest, the dependency court intended for Terry T. to deal with and admit the sexual abuse. The court rejected a proposal that Terry T. participate in CSAP because the court believed the program would not facilitate the reunification of the family, not because the court determined Terry T. did not have to confront the issues.

In view of the foregoing we conclude the juvenile dependency court had sufficient evidence to conclude a risk of harm existed under section 361, subdivision (c)(4).

B. Alternatives to Removal

Appellants also assert the court erred in making the dispositional order because the court failed to state it had considered alternatives to the removal of the minors. In addition, appellants assert reasonable alternatives existed and the court improperly rejected them.

The court properly found there were no other reasonable means of protecting the children while in Terry T.s physical custody. The juvenile court stated its reasons for removal on the record. The court stated it found by clear and convincing evidence that a risk existed to the minors pursuant to section 361 and that there were no reasonable alternatives to protect the children without removing them. Specifically, the court found Terry T. continued to pose a substantial risk to the children because he had yet to deal with the sexual abuse issues. The court expressed its view that Terry T.s therapist was not qualified to treat him for the issues and that he had made no progress on them. Thus, the court stated that the risk of sexual abuse remained.

Neither section 361, nor the rules of court expressly require the court to state on the record that it considered less drastic means than removal. Nor is the court required to describe all possible alternatives and why those were rejected. The court is only required to state facts upon which it based its decision. ( 361, subd. (d) [The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based. (italics added)]; see In re Jason L. (1990) 222 Cal.App.3d 1206, 1218 [court must state facts on record supporting the decision to remove the minor].) In any event, any failure to create an adequate record here is harmless. (See ibid. [failure to make findings will be deemed harmless where it is not reasonably probable such findings, if made, would have been favorable to parent].) The record here reflects the court considered various alternatives suggested by counsel and implicitly rejected them. The courts comments at the hearing further reflect the court wanted to place S.T. with Terry T. but did not believe it was safe to do so at that time. The court indicated that although there were more eyes watching the family, safeguards could not be put in place to fully protect the minors on an around-the-clock basis.^[14] (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006 [The court had broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accord with this discretion].)

In view of the evidence in the record before this court, we find no reversible error. In short, we conclude the courts dispositional order was supported by solid, reasonable and credible evidence.

III. The Six-month Review Hearing Findings

On appeal, Terry T. claims that although his counsel submitted when the court stated it intended to conduct the six-month review hearing ( 366.21, subd. (e)) on July 14, 2006, immediately after the disposition hearing, there nonetheless was insufficient evidence to support any findings with respect to the orders entered pursuant to section 366.21, subdivision (e). He further complains the DCFS did not submit the required report for a six-month review hearing. He asserts he had demonstrated substantial compliance with the case plan to undermine the courts findings with respect to section 366.21, subdivision (e). We find no reversible error.

Section 366.21, subdivision (e) provides, in pertinent part:

(e) At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment. The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. In making its determination, the court shall review and consider the social workers report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which he or she availed himself or herself to services provided.

Whether or not the child is returned to a parent or legal guardian, the court shall specify the factual basis for its conclusion that the return would be detrimental or would not be detrimental. The court also shall make appropriate findings pursuant to subdivision (a) of Section 366; and, where relevant, shall order any additional services reasonably believed to facilitate the return of the child to the custody of his or her parent or legal guardian. The court shall also inform the parent or legal guardian that if the child cannot be returned home by the 12-month permanency hearing, a proceeding pursuant to Section 366.26 may be instituted. . . . ( 366.21, subd. (e).)

The juvenile dependency court did not err in making findings under section 366.21, subdivision (e) that it would be detrimental to return the children to Terry T. at that time. As discussed elsewhere herein, although Terry T. had complied with aspects of the case plan pertaining to the use of inappropriate discipline and had regularly visited with S.T. and Christian T., Terry T. had yet to work on any of the sex abuse issues. Consequently, the danger posed to the minors persisted and the court did not err in finding Terry T. had not achieved substantial compliance with the case plan. In addition, with respect to the complaint that the DCFS did not submit a six month review report, we find no prejudicial error. Given that the six-month review date was only two weeks after the dispositional hearing, the court observed Terry T. did not have enough time to sufficiently address the sex abuse issues prior to the six-month hearing date. The court believed Terry T. needed at least three months of therapy before his progress on the sex abuse issues could be reassessed. Thus, were are not persuaded that failure to file the report would have made any difference in the outcome of the hearing even if the hearing had been conducted two weeks later.

DISPOSITION

The juvenile courts orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

JOHNSON, Acting P. J.

ZELON, J.

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

^[2] Terry T. adopted Kenneth B. and S.T. in 2004, and the adoption of Christian T. was finalized in February 2006 a few days before the minors came to the attention of the DCFS.

^[3] Neither Kenneth B. nor Christian T. are parties to the appeal, though Terry T.s appeal does assert that neither the jurisdictional nor dispositional orders concerning Christian T. are supported by sufficient evidence.

^[4] A report by deputy sheriffs investigating Kenneth B.s allegations was attached to the detention report. According to that report, Kenneth B. told deputies that he had been sexually abused by Terry T. on four occasions. The fourth incident (the one he did not report to the social worker) allegedly occurred in September 2002, when both Kenneth B. and S.T. were watching television in a bedroom. Kenneth B. stated that Terry T. came into the bedroom, told S.T. to leave the room. Kenneth B. was seated on the bed, and Terry T. approached him, got down on his knees, opened Kenneth B.s shorts and began licking his penis. Kenneth B. said Terry T. stopped and did not actually copulate him because Kenneth B. yelled at him, telling him to leave him alone. Kenneth B. believed Terry T. stopped because S.T. was in the next room.

When Kenneth B. testified at the jurisdictional hearing he was questioned about the discrepancy between what he reported to police and later reported to the social worker with respect to the number of incidents of abuse. In response Kenneth B. stated that the police detective who interviewed him told him that the fourth incident was not really an actual incident of oral copulation because Terry T. had stopped. Consequently, Kenneth B. stated that when he later described the acts to the social worker he reported the abuse occurred only three times. Concerning the other three reported incidents, Kenneth B. testified the first occurred when he was 14, a second time when he was 15 and the last time when he was 16 years old.

^[5] Specifically, Kenneth B. told the social worker that when he was originally detained from his natural parents and placed in the home of his older sister, Marquita L. his maternal aunt (Betty L.) convinced him he would be treated better if he was placed in her home, and told him to make a false report that his sister had hit him in order to be moved out of her home. Kenneth B. stated he was placed with Betty L. when he was 10 years old, and continued to reside with her until allegations were made that he had inappropriately touched one of Betty L.s younger children. He denied the allegations at the time, however his attorney and social worker encouraged him to admit the allegations. Eventually, Kenneth B. admitted the allegations, was placed on probation, and began to attend therapy sessions.

^[6] Kenneth B. told the social worker he attended Southwest College, and there he came into contact with his biological sister, J.C., who worked at the college. Terry T. had given Kenneth B. permission to visit J.C. because Kenneth B.s biological father, who had recently been released from prison, was supposed to come by her house for a visit. Terry T. instructed Kenneth B. to call him if his father failed to come to the house; however, apparently his biological father did not show up and Kenneth B. did not call Terry T. This caused an argument between Terry T. and Kenneth B., during which Terry T. told Kenneth B. he could not have any more contact with his biological relatives. When Terry T. left the house, Kenneth B. went to a neighbors house and called his biological aunt, Marquita L. who in turn contacted J.C. J.C. came to Terry T.s house, picked up Kenneth B. and took him to her home with her. According to S.T. when Kenneth B. left the house he told S.T. if Terry T. asked why Kenneth B. had left, S.T. should tell Terry T. the reason was oral copulation. After his arrival at J.C.s house Kenneth B. disclosed the sexual abuse to J.C., who called the police. Kenneth B. stated that he told J.C. about the sexual abuse because she made him feel safe.

^[7] At age 11, Christian T. had the mental capacity of a seven-year-old. In the detention report Christian T. is referred under the name Markelthe name he was known by prior to his adoption by Terry T.

^[8] Based on the DCFS investigation, a separate detention report was prepared with regard to Christian T. which contained the same information as the one prepared for Kenneth B. and S.T. A section 300 petition was filed on Christian T.s behalf on February 9, 2006. The social worker determined that fathers adoption of Christian T. was finalized on February 1, 2006, which was the day before the investigation in the instant case was initiated.

^[9] By mid-March the court had given the DCFS discretion to allow Terry T. to have unmonitored day visits with S.T. and Christian T.

^[10] S.T. had been in 13 placements prior to being adopted by Terry T. S.T. who suffers from ADHD, had a prior history of behavioral problems, had not performed well at school and had been sexually abused as a six-year-old. Since he came to live with Terry T., he had turned his life around, had fewer behavioral problems and had performed well in school.

^[11] During the hearing the DCFS agreed to strike four of the five allegations under section 300, subdivision (b) because they appeared to be duplicative of those asserted under subdivision (a).

^[12] The subdivision (a), serious physical harm allegation provided in pertinent part:

a-1 [] On a prior occasion . . . Terry [T.] inappropriately physically disciplined the child Kenneth. Such inappropriate discipline consisted of, but was not limited to, the father striking the child Kenneths chest with his fists. Such inappropriate physical discipline was excessive and caused the child Kenneth unreasonable pain and suffering. Further, the father called the child Kenneth derogatory and demeaning names. Such inappropriate physical discipline of the child Kenneth by the childrens father endangers the child Kenneths physical and emotional health, safety and well being, creates a detrimental home environment and places the child Kenneth and the childs [siblings] at risk of physical and emotional harm, damage and physical abuse.

a-2 [] On prior occasions . . . Terry [T.] inappropriately physically disciplined the child S.T. Such inappropriate discipline consisted of, but was not limited to, the father repeatedly striking the child S.T. about the childs body with a belt. Such inappropriate physical discipline was excessive and caused the child S.T. unreasonable pain and suffering. Such inappropriate physical discipline of the child S.T. by the childrens father endangers the child S.T.s physical and emotional health, safety and well being, creates a detrimental home environment and places the child S.T. and the childs [siblings] at risk of physical and emotional harm, damage and physical abuse.

a-3 [] In December 2005, and on prior occasions, . . . Terry [T.] inappropriately physically disciplined the child [Christian T.]. Such inappropriate discipline consisted of, but was not limited to, the father repeatedly striking the unrelated child about the childs body with a belt resulting in marks and bruises to the . . . arm. Such inappropriate physical discipline was excessive and caused . . . unreasonable pain and suffering. Such inappropriate physical discipline . . . by the childrens father endangers the childrens physical and emotional health, safety and well being, creates a detrimental home environment and places the children at risk of physical and emotional harm, damage and physical abuse.

The allegations under subdivision (j) mirrored those contained in a-1 and a-2.

^[13] Specifically the petitions alleged: On prior occasions for a period of five years, . . . Terry T. sexually abused the child Kenneth. Such sexual abuse consisted of, but was not limited to, the father repeatedly fondling and orally copulating the childs penis. Further, due to such sexual abuse of the child Kenneth by the father the child is afraid of the father and no longer wishes to remain in the fathers home and care. Such sexual abuse of the child Kenneth by the childrens father endangers the child Kenneths physical and emotional health, safety and well being, creates a detrimental home environment and places the child Kenneth and the childs [siblings] at risk of physical and emotional harm, damage and sexual abuse.

^[14] Because this case i