Opinion
G037786
5-17-2007
In re ANITA M. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MIGUEL M., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED
INTRODUCTION
Based solely on the allegations of sexual abuse by the victim, and rejecting the victims recanting of those allegations on the stand, the juvenile court found the victim and her younger sister came within the courts jurisdiction under Welfare and Institutions Code section 300, subdivision (d). (All further statutory references are to the Welfare and Institutions Code.) The victims adoptive father, who is the alleged abuser, challenges the juvenile courts findings, contending there cannot be sufficient evidence to support the jurisdictional order, given the victims inconsistent statements, odd behavior, and recantation of her allegations. We disagree. The juvenile court found the victims initial allegations of abuse to be credible, and her recantation to be incredible. In reviewing the record, we conclude there was substantial evidence to support the juvenile courts order, and affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
A.P. (mother) and Miguel M. (father) are the paternal grandparents and adoptive parents of Anita M. and A.M., now ages 13 and 11, respectively. Rocio A. is the biological mother of Anita and A.M. The childrens biological father, Victor M., lives with father, but is mentally ill. After the opening appellate briefs were filed, mother died. We dismissed her appeal by separate order.
On September 14, 2005, Anita disclosed father had touched her breasts while mother was cooking in the kitchen. Anita later recanted and stated she had lied. The Orange County Social Services Agency (SSA) concluded the allegation of sexual abuse was unfounded.
Detention
On February 24, 2006, Anita was brought to the school office "due to luring boys into the restroom." Anita then disclosed that father had orally copulated her and tried to penetrate her with his penis. Two social workers met with Anita that day at her school. Anita related to the social workers several incidents when father touched her breasts. She also related an incident that occurred in a hotel in Tijuana, where father made her take off her pants and underwear, "tried to `push his penis inside her `private parts," touched her breasts, and orally copulated her. Anita tried to tell mother, but mother did not believe her. Anita also stated father tried to touch A.M.s breasts, but A.M. started crying, and father left her alone.
Also on February 24, 2006, Anita was interviewed by Officer Guerrero of the Santa Ana Police Department in the presence of the social workers, and provided responses consistent with those she had provided earlier. When Officer Guerrero questioned Anita about the incident in Tijuana, she asked whether fathers penis was hard or soft when he tried to penetrate her; Anita said it was soft.
Mother and A.M. were also interviewed by the social worker and Officer Guerrero on February 24. Mother said Anita was lying, and Rocio and a paternal aunt were putting things in her head. (Rocio denied ever telling Anita to make allegations against father, and stated, "the reason she stays away . . . [is] because Anita tries to get her involved in their problems at home.") A.M. denied any sexual abuse, and denied father had ever touched her.
While the social worker and Officer Guerrero were deciding whether to detain Anita and A.M., mother was in the lobby, "yelling that Anita is a liar and if Anita and A[.M.] want to go live with their biological mother they are welcome to because she doesnt want any ungrateful children living in her house." Anita and A.M. were taken into protective custody that day.
On February 28, SSA filed a juvenile dependency petition alleging Anita and A.M. came within the juvenile courts jurisdiction under section 300, subdivision (a) (serious physical harm), subdivision (b) (failure to protect), subdivision (c) (serious emotional damage), and subdivision (d) (sexual abuse). Anita and A.M. were placed together in foster care.
Jurisdiction/Disposition Report and Addenda
The jurisdiction/disposition report and all of its addenda were admitted at the jurisdiction hearing without objection.
On March 14, 2006, a social worker interviewed Anita. Anita stated she and A.M. were in protective care because "`[m]y dad touched me." Anita said A.M. had told her it was Anitas fault they were in protective custody. Anita told the social worker about an incident in a hotel in Tijuana when father "`tried to put his private on mine." She began crying and said, "`[n]o one believes me, my mom doesnt."
A.M. denied father had ever molested her, and said Anita was a liar and was crazy.
A Child Abuse Services Team (CAST) interview of Anita was conducted on April 6, 2006. She described incidents when father touched her breasts. Anita also detailed the incident where father took her to a hotel room, made her take off her pants, and tried to penetrate her with his penis, although Anita said it occurred in Ensenada, not Tijuana. Anita reported that one day when mother came into the bathroom while Anita was in the shower, mother "saw that `the little tongue in her private parts was out and she told her mother what the father did." Anita also stated that father had orally copulated her three different times, "which made her private part bigger." Anita also told the CAST interviewer that father had cursed at her and called her the daughter of the devil. "The child later stated, `My grandfather said it would have been best if I died in a crash. My mother doesnt believe me, I want her to not think Im a liar. The child stated, `She said it isnt true. The child also stated, `Thats the only thing I want, is them to believe me. Only God knows Im not lying. My other aunt . . . believed me but my family doesnt believe me. A[.M.] tells me its all my fault for us being there."
A.M. had regular monitored visits with mother and father, while Anita had monitored visits only with mother. There was no indication of any problems with the visits themselves, but Anita became upset seeing father when he dropped off mother for visitation at a public park.
The social worker expressed "grave concerns for this family." Because mother did not believe any abuse had occurred and father denied any abuse, the social worker believed that they would not benefit from reunification services, and that reunification of the children with mother and father would place them at a high risk for abuse. Anitas therapist reported she was "very depressed and not doing well."
In July 2006, the social worker reported that Anita and A.M. were not getting along, because each blamed the other for being in foster care. The children called the social worker and said they were unhappy in their foster care placement and wanted to go home. Anita expressed a belief that if she were returned home, she would not be concerned about further molestation because mother had told her father was sorry, and her sister and aunts would prevent him from molesting her. About a week later, Anita left the following voicemail message for the social worker: "Its me Anita, I know a lot has happened, I forgive my dad and I want to go back home. I dont care if hes there, I know hes not going to do that again, I just know that. God knows that [inaudible]. I want to go back to my family, I want to return with them. I dont want anything to happen. I feel comfortable around my dad, around my grandpa, Miguel. I forgive my grandpa. I dont care whats gonna happen, I want to live with him. Thank you, bye."
Jurisdiction/Disposition Hearing
Between August and October 2006, a contested jurisdiction/disposition hearing was conducted.
The social worker assigned to the case admitted she was unaware of any evidence corroborating the allegations of the petition other than Anitas statements. The social worker believed Anitas allegations, however, because she had been consistent in describing the abuse (both the fact it happened and the details given) over the course of many months, despite her extreme unhappiness in her foster care placement and desire to go home, and because she made new allegations of abuse after recanting the September 2005 allegation. The social worker believed returning Anita and A.M. to their home would create a risk of further abuse. The social worker testified fathers therapist had advised her that returning the children to his care would present a "continued risk" of harm.
The social worker testified, "[i]ts very common and expected for sexual abuse victims to recant for a variety of reasons, and the fact that she made new allegations strengthens my belief that she truly was sexually abused." The social worker was not an expert in psychology or victim recantation such that this testimony could be admissible for anything other than its impact on her. (See People v. Housley (1992) 6 Cal.App.4th 947, 955-956 [expert testimony admissible to explain victims last-minute recantation of abuse charges, but not to prove molestation occurred].)
Anita took the stand and recanted all allegations of abuse by father. Anita testified twice — once in the presence of and again outside the presence of father and mother, to ensure she was not being intimidated to recant her allegations.
Anita testified Rocio spoke to her on the telephone a few days before Anita made the allegations of abuse in March 2006 and advised her to do so. Anita testified that Rocio told her to say father had lowered her pants, touched her, and touched her breasts, but that she had not been told "details" about how she should describe how father acted or what he said. Anita first was unable to explain how she decided to say fathers penis was soft when he tried to penetrate her in the motel room in Mexico, but later testified Rocio had told her to say that. Anita testified she came up with the idea of saying father had put his mouth on her vagina because Rocio told her to and because she had heard children at school discuss it.
Anita testified she made up the allegations because she was angry with mother for not buying her a cell phone and for not letting Anita hang out with her friends. Anita testified she had made up the allegations against father in September 2005 because she was afraid mother would scold her for getting her hair cut too short. Anita also testified she had wanted to live with Rocio, but Anita had not made such a statement to the social worker when asked about relative placement at the time of detention. Anita did not think she would be separated from her family if she told someone father had touched her inappropriately or in a sexual way. She did not think father would get in trouble, despite the police investigation when she made a similar allegation in September 2005.
Anita decided to tell the truth at the hearing "because I would feel really bad if I didnt," and not because she wanted to go home. Anita testified she did not recant her allegations earlier "because I thought everybody would be mad at me and they were going to yell at me." Anita also testified she had rejected visitation with father because she thought he would be mad at her for lying. When asked why the court should believe her hearing testimony rather than her earlier statements, Anita replied, "I know myself that it wasnt true and God knows that its not true."
Anita also testified A.M. told her that father had touched her in an inappropriate way, "but she was kidding." Anita explained A.M. was kidding about something so serious because she was angry with Anita for not buying her a bag of Cheetos when Anita bought a bag for herself.
Anita testified her feelings of depression and wanting to hurt herself were due to her remorse over making up the allegations. Also, Anita said that when she told the social worker she forgave father, she really meant she wanted father to forgive her. Anita believed her being away from home had made mother more sick, and going home would make her feel well.
A.M. testified she was not living with father and mother because Anita had said father touched her private parts. A.M. denied father had ever touched her private parts or hit her, and denied ever telling anyone he had. A.M. confirmed Anita became angry with mother when mother bought a cell phone for a cousin, but did not buy one for Anita. Anita had told A.M. that Rocio instructed Anita to tell lies about father touching her so the children could live with Rocio. A.M. also testified she and Anita were both on the phone with Rocio when Rocio told Anita to make up stories about father touching her; A.M. did not tell mother about the call because it would make mother "feel sad" or "feel bad." A.M. never told the social worker about the calls with Rocio because she did not think the social worker would believe her. Anita had told A.M. she was lying about the abuse allegations, but A.M. never shared that revelation with mother, the social worker, or her foster mother. A.M. did claim she told her therapist that Anita had admitted she was lying, but the therapist never relayed such a statement to the social worker.
Mother testified that Anita never told her she had been touched inappropriately. After Anita recanted the September 2005 allegations, she told mother "everything is a lie" and she had made up the allegations because she wanted to be with Rocio. After the September 2005 allegation, mother told Anita, "its not possible that [father] could have done that to you" because mother and father were unable to "kiss or hug"; mother denied ever telling Anita any details about sex or providing her with any sexual education. During the summer before the jurisdiction hearing began, Anita told mother she had made up the stories about father touching her because she was angry mother had bought her cousin a cell phone, and Anita asked for mothers forgiveness. Mother testified Anita did not say she had made up the allegations because Rocio had instructed her to do so. Mother denied saying that Anita was a liar, or that Anita and A.M. could go live with Rocio. Father did not testify.
The juvenile court concluded Anitas earlier statements about the molestation were true and her recantation in court was false. "Certainly Anita comes in here and tells us, no, this doesnt happen. And she could be saying it didnt happen because it didnt happen or she can be saying it didnt happen because shes just sick of it all. Shes been in Orangewood. Shes been in foster care. Shes getting pressure from her sister to stop it. Quit lying or quit making this stuff up, we want to go home. . . . [¶] . . . [¶] The only conclusion that the court can come to is that this occurred and that this child was frustrated because no one believed her, and she became frustrated and frustrated. And pressure, especially pressure from the sister, and she comes in here and tells us its not true. Actually, it was such an effort to tell us that it wasnt true that that was really pretty much the only answer she wanted to provide to every question. [¶] And some of the explanations just frankly didnt make sense. Making up a sexual assault allegation against her father because you got a haircut that was bad is ludicrous. That you dont get a cell phone and youre mad at mom so you make up an allegation about your father molesting you is completely silly, to say the least. [¶] . . . [T]here were answers that made no sense. If your dad said you cant have a cell phone, maybe you would make something up. But to go to the point where you would comment or make an allegation about — multiple allegations about being sexually abused in multiple different ways simply does not make any sense and it cant be reconciled any other way other than these things did occur. [¶] . . . [¶] But I do agree that Anita was crying, but crying certainly is not an indication that she is crying because shes making it all up. She certainly could be crying because this occurred and its tragic, its embarrassing, its frustrating, its a multitude of things. But this is a very serious situation and its difficult to make sense of it, I would agree. [¶] However, in reading everything, there is really no way to assess it any other way than that this did occur. And the burden is a preponderance. Its not a criminal trial with beyond a reasonable doubt possibly an issue. However, with the burden that the court is faced with, the court feels that the burden was met by a preponderance of the evidence."
The court noted the two most significant facts in its decisionmaking process were (1) Anitas statement that mother commented on Anitas genitalia being swollen; and (2) Anitas statement that when father molested her in the motel room in Mexico, his penis was soft. "Those things are jumping out to lend credence to the earlier discussions and the review . . . ." Mother had testified that father suffered from impotence due to diabetes, which the court believed corroborated Anitas testimony. The court also noted that in a case that was "a credibility issue," mothers demeanor in court was "rather robotic in that she had completely no emotion other than just to completely say stuff didnt happen."
The juvenile court found the allegations of the petition were true by a preponderance of the evidence, found Anita and A.M. came within the provisions of section 300, subdivisions (a), (b), (c), and (d), and declared them to be dependents of the juvenile court. The court also found reasonable efforts had been made to prevent the need for the removal of Anita and A.M. from their home; there was clear and convincing evidence that vesting custody of Anita and A.M. with mother and father would be detrimental to them, and the court therefore vested custody of Anita and A.M. with SSA. Father appealed from the juvenile courts order.
DISCUSSION
We review the juvenile courts jurisdictional findings under the substantial evidence test. (In re S. O. (2002) 103 Cal.App.4th 453, 461; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile courts order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Father argues there was insufficient evidence to justify any of the jurisdictional findings under section 300. Specifically, father challenges the findings of sexual abuse under section 300, subdivision (d), because the only evidence of abuse was Anitas "uncorroborated and inconsistent statements which she later recanted." Although we may affirm the juvenile courts order if it is correct on any one of the stated grounds (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875), this is a case about allegations of sexual abuse. The dependency petitions allegations of serious physical harm, serious emotional harm, and failure to protect all stem directly from the allegations of sexual abuse or attempted sexual abuse. Therefore, we will focus our analysis on the allegations of sexual abuse.
Father does not challenge the juvenile courts dispositional findings.
A minor comes within the juvenile courts jurisdiction if he or she "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." (§ 300, subd. (d).)
This case is unquestionably one in which the credibility and demeanor of the witnesses were paramount in the court reaching the decision it did. The juvenile court views the witnesses demeanor and is therefore in the best position to determine credibility. As an appellate court, we cannot weigh the evidence or discount the juvenile courts determinations regarding the believability of the witnesses. "The juvenile court had the opportunity to observe the demeanor of the relevant witnesses . . . . [T]he court specifically noted that it relied on the demeanor of the witnesses in making its decision. It is not our role to interfere with the trial courts assessment of the witnesses demeanor and credibility." (In re Naomi P. (2005) 132 Cal.App.4th 808, 824; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 78.) "[T]he court is better positioned than are we to observe a witnesss demeanor and discern his or her credibility. Testimony can be uncontroverted and yet be presented in a fashion that is unpersuasive for reasons not evident on a written record." (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 262.)
The juvenile court found Anitas initial allegations of sexual abuse to be true. Anita told three different social workers, Officer Guerrero and a CAST interviewer that father attempted to have sex with her in a hotel in Ensenada or Tijuana and had fondled her breasts several times. In the CAST interview, Anita also revealed father had orally copulated her on at least three occasions.
The court found Anitas description of fathers penis as "soft" during the incident in Mexico significant; her statement was corroborated by mothers testimony that father suffered from impotence as a result of diabetes. The court also found Anitas claims of abuse were corroborated by mother questioning why Anitas genitalia was swollen, which the court believed was a physical manifestation of sexual abuse. Because Anitas knowledge about sex was very limited, the court could find there was virtually no way for Anita to have made up such specific details about the abuse.
Father correctly notes there were inconsistencies in Anitas various tellings of her story. For instance, not until the CAST interview did Anita tell authorities about mother observing her swollen genitalia in the shower. Additionally, father identified several points on which Anitas story differed when relating the allegations initially to the social worker, to Officer Guerrero, and to the CAST interviewer. The juvenile court could infer that the trauma of the abuse, the pressure of the various interviews, and the differences in the questions asked and the surroundings under which the interviews took place could result in the differences in Anitas retelling of the story. Also, the court was entitled to place more emphasis on the fact that although the details and timelines may have differed in Anitas accounts, the basic allegations — father touched her breasts, orally copulated her, and attempted to penetrate her while in a motel room in Mexico — remained consistent.
Father also notes that Anita exhibited "extreme" behavior, such as sitting on the roof after her foster mother refused to buy her an expensive bra, or throwing a plate of food into a neighbors yard so her foster mother would not get angry with her for opening a can of macaroni. Father contends such seemingly inappropriate responses indicate Anitas lack of trustworthiness. The juvenile court could have inferred, to the contrary, that Anitas behavior was a result of being sexually abused by father.
The court found Anitas recantation of the abuse allegations not to be credible. The court found Anitas explanations at the jurisdiction hearing about why she allegedly made up the sexual abuse claims "just frankly didnt make sense," were "ludicrous," and were "completely silly, to say the least." Anita had recanted a previous allegation of abuse in September 2005 because of guilt and pressure by mother. The court also gave weight to Anitas demeanor while testifying, explaining her tears could have been the result of actual occurrence of the abuse, which was "tragic, . . . embarrassing, . . . frustrating."
In In re Sheila B. (1993) 19 Cal.App.4th 187, 200, the juvenile court weighed the minors initial allegations of sexual abuse against her recantation of the abuse in a letter written after criminal charges were filed against the alleged abuser and again at the dependency hearing, "and was persuaded of the truth of her recantation. The testimony of a single witness is sufficient to uphold a judgment [citation], and an appellate court may not evaluate that testimony as a basis for reversal. [Citation.]" The appellate court therefore affirmed the juvenile courts order dismissing the dependency petition. (Ibid.) For the same reasons, the juvenile courts order in this case, concluding Anita and A.M. came within the jurisdiction of the juvenile court, must be affirmed. The juvenile court was required to and did weigh Anitas initial and repeated allegations of abuse by father against her testimony recanting those allegations.
Father attempts to distinguish this case from In re Rubisela E. (2000) 85 Cal.App.4th 177, in which the appellate court affirmed a jurisdictional finding based on section 300, subdivision (d). Unlike father, we conclude In re Rubisela E. supports affirmance of the juvenile courts order. Father focuses on the fact that, in that case, medical evidence showed the victims hymen was attenuated (In re Rubisela E., supra, at p. 184), as compared to this case in which he asserts there is no medical evidence of sexual abuse. But the evidence regarding the victims attenuated hymen played no part in the courts jurisdictional findings in In re Rubisela E. Indeed, the victim repeatedly denied her father had penetrated her and stated she had "hit her private part" in a bicycle accident, and a public health nurse reported such an accident could cause trauma to the hymen. (Id. at p. 184, fn. 7.)
Father also argues Anitas inconsistent statements stand in contrast to the victims consistent disclosures of sexual abuse in In re Rubisela E., supra, 85 Cal.App.4th 177. The victim in that case initially disclosed a single incident where her father told her to orally copulate him, and specifically denied any prior incidents. (Id. at pp. 180-181, 183.) Several months later, just before the jurisdiction hearing, the victim told her therapist about five to ten earlier incidents when her father touched her breasts, buttocks, legs and vaginal area. (Id. at p. 186.) As with A.M. in the present case, the victims siblings denied any sexual abuse occurred, and denied being aware their father had asked the victim to orally copulate him, although they were sleeping in the same room at the time the incident occurred. (Id. at pp. 181, 183, 184, 191.)
In In re Rubisela E., supra, 85 Cal.App.4th at page 195, as in the present case, the father argued there was insufficient evidence to support the jurisdictional finding based on allegations of sexual abuse because the victims story was inconsistent and unsupported by corroborating evidence. The appellate court, however, concluded the uncorroborated and changing testimony of the victim was sufficient to affirm the juvenile courts order. "Father claims that the inconsistencies in Rubiselas retelling of the incident to various investigators, as well as the fact her sister never awoke during the confrontation, compel a conclusion that her testimony and the evidence as a whole does not support a finding that Father ever touched Rubisela in a sexual way or proposed oral sex. We disagree. [¶] As Father concedes, the testimony of a single witness can be sufficient to uphold a judgment. [Citation.] The juvenile court observed Rubisela and her parents. As is often the case, her testimony and the various reports given to investigators contained inconsistencies. Nevertheless, although the exact circumstances surrounding the event may have differed in the retelling, the essence of the offense, that her Father asked her to orally copulate him in the middle of the night, did not change. Only after months of therapy did the prior sexual acts become known; but such belated revelation is understandable and not inherently incredible. Moreover, Mothers testimony that she sneaked into the house to see if her husband was doing anything wrong was certainly disturbing. [¶] The juvenile court especially noted the demeanor of Rubisela and her parents in court. Mother at one point testified Rubisela was telling the truth, and Father had a difficult time when he testified the minor was lying. Rubisela appeared to shake her head when testimony against hers was presented. Substantial evidence supports the juvenile courts determination that Father touched Rubisela in a sexual way on several occasions and that he proposed oral sex to her." (Ibid.) Other than the fact Anita recanted the sexual abuse allegations on the stand (in a manner totally unconvincing to the juvenile court), we are hard pressed to see much of a difference between the present case and In re Rubisela E.
Father also compares the present case to In re Amy M. (1991) 232 Cal.App.3d 849, 860-861, in which the victim testified in detail about the sexual abuse inflicted over the course of many years, and which testimony was corroborated by medical evidence consistent with anal intercourse. The lack of medical evidence in this case is not dispositive; father does not explain what type of medical evidence might be available to prove sexual abuse consisting of touching and oral copulation. Additionally, no specific level of detail is necessary to support allegations of sexual abuse. The description of the abuse provided by Anita was sufficient to support the juvenile courts jurisdictional findings. The fact more detail was provided in other cases is irrelevant.
DISPOSITION
The juvenile courts order is affirmed.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.