Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIJ113844, Christian F. Thierbach, Judge.
Karen Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor and Appellant.
No appearance for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
McKinster, Acting P.J.
Seven-year-old A.T. and her mother, S.V., appeal an order dismissing a petition filed pursuant to Welfare and Institutions Code section 300. The mother contends that the court applied an incorrect legal standard to determine the truth of allegations that A.T.’s father (M.T.) abused her sexually (§ 300, subd. (d)), and that substantial evidence does not support the court’s decision. A.T. contends that the court applied an erroneous legal standard to determine the truth of the allegation that A.T. has suffered serious emotional damage and that it erred in failing to apply an available legal theory to exercise jurisdiction based on that allegation. (§ 300, subd. (c).)
All statutory citations refer to the Welfare and Institutions Code unless another code is cited.
We conclude that the court did not err with respect to either allegation, and we affirm the order of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
A.T. (hereafter referred to simply as “A.”) was born in June 2001. When A. was conceived, S.V. was in a long-term relationship with J.G., who is the father of her daughter, W. J.G. wanted her to have an abortion. She told M.T., with whom she had had a single sexual encounter, that she was pregnant. M.T. promised that he would provide for the baby, whether it was his or not. S.V. was confident as soon as A. was born that M.T. was the father and told him so within a week of the birth. She did not disclose that information to J.G. for nearly two years. She stayed in contact with M.T. during that time, but never asked him for any financial assistance. She finally told J.G. that A. was not his child when A. was two, because she was afraid that he would recognize the child’s resemblance to M.T. if he ever saw the two of them together. J.G. left S.V. with no money. M.T. offered to help financially, but apparently provided little or no assistance.
S.V. moved in with her sister and applied for welfare. The welfare department initiated support proceedings against J.G. for both children. He reported that only one child was his. Support proceedings were then initiated against M.T. as well. At that point, M.T., who lived in Santa Ana, filed a petition in Orange County for custody of A. He established paternity, and on October 11, 2005, the court granted him and S.V. joint legal and physical custody, with M.T. having primary decisionmaking authority for matters pertaining to “school and non-medical treatment.” The court ordered A.’s last name changed to T. The custody order provided for A. to spend alternate weeks with each parent.
On February 5, 2007, S.V. called the Moreno Valley Police Department and reported that A. had disclosed to her then seven-year-old half sister, W., that M.T. had touched her sexually. The police officer who attempted to interview A. reported that A. did not speak about the alleged abuse, but merely nodded in response to a few questions. The next day, a child protective services social worker interviewed S.V. S.V. reported that A. told W. that her father touches her private parts, and that A. later disclosed the same information to S.V. S.V. also reported that she was aware of inappropriate sexual behavior by A. as early as 2004, when A. first began to have overnight visits with her father. She reported that A. “kisses males ‘passionately,’” and that on an unspecified date, she found W., A. and their six-year-old cousin D. naked and overheard A. asking D. to kiss her “kus kus.” “Kus kus,” according to S.V., was A.’s word for her vagina. She reported that in 2006, while licking a lollypop, A. told her that her father “licks my kus kus like this to put me to sleep.”
A social worker interviewed A. at her mother’s home. According to the detention report, A. told the social worker that her father “touches her ‘kus kus,’” that he puts his finger into her vagina and that it hurts when he moves his finger around. She said that the incidents occur in the living room at her father’s house, and that her father said he would hit her if she told.
On February 14, 2007, the Department of Public Social Services (DPSS) filed a petition pursuant to section 300, alleging that S.V. had failed to protect A. from three years of sexual abuse by A.’s father when she reasonably should have known the abuse was occurring and that A.’s father sexually abused her for three years. (§ 300, subds. (b), (d).) An amended petition was filed on June 4, 2007, adding the allegation that A. was suffering from or at risk of suffering from serious emotional damage and that her parents had failed to protect her from such damage. (§ 300, subds. (b), (c).) The petition alleged that A. had been diagnosed with posttraumatic stress disorder, that she was anxious while in her therapy group, and that she suffered from enuresis and encopresis.
On March 14, 2007, the social worker spoke to A.’s half sister, W. She reported that W. said that A. told her that her father touched her “right here” and pointed to her vagina. She reported that W. told her that her word for the vagina was “pus.” W. also reportedly said that A. told her that her father kissed her on the mouth. This was in response to W.’s question to A., “[W]hy does your mouth stink?” Finally, the social worker reported, W. told her that A. said that her father touched her when she was asleep, that she would wake up and find her panties down and her father between her legs.
We surmise that this is a typographical error in the jurisdiction report.
A jurisdictional hearing was held on June 19, 20 and 21, 2007. The court admitted into evidence all DPSS reports. The jurisdiction report included a forensic medical examination report, which stated that the findings were within normal limits. The examiner noted that the rim of A.’s hymen was “on the narrow side” and that there was “a slight indentation at 5[:]00.” However, the doctor reported that those findings “may or may not represent sexual trauma.”
The court found that A. was competent to testify. She testified that she missed her father and wanted to resume living with him. Her father was nice and read to her and played movies. She missed her extended paternal family as well, including her half brother, grandparents, uncle and cousins. She was sad that she wasn’t living with her father, and her mother did “mean” things to her, such as hitting her. In response to the single question she was asked pertaining to her father’s conduct, she said that her father never did anything “bad” to her. She was not asked about any of the specific statements attributed to her in the reports, nor did the social workers who prepared the reports testify.
W. also testified. W.’s testimony was equivocal. She testified both that A. had told her that her father touched her “private parts”—and used that precise term—and that A. had never told her such a thing and that A. never used the term “private parts.” W. said repeatedly that A. never told her that her father touched her “kus kus,” kissed her on the mouth, kissed her private parts or put his hands on her private parts. She also denied that A. ever told her that she sometimes woke up and found her father doing “bad things” to her. She said she would remember if A. had told her something like that. Further, W. said that A. never used the term “kus kus” to describe her private parts, nor did she ever use any other term, such as “private part” or “puss.” The one time she tried to talk to A. about a name for a girl’s private parts, A. refused to discuss it, saying, “That’s nasty.” A. did tell her that her father “touched” her, but W. said she had no idea what A. meant when she said that. In an attempt to clarify W.’s testimony, the court asked her, “[H]ow come you told this man over here [i.e., one of the attorneys] that A. did tell you that her daddy touched her privates?” W. replied, “Well, I don’t know. ‘Cause I didn’t, like, hear.” The court asked, “You didn’t hear?” W. responded, “No, because those little things are coming out.” She was apparently referring to some “dusty flakes” coming out of the stuffed bear she was holding while she testified.
S.V. testified as well. She described A.’s sexualized behavior, which she said had begun as early as the age of two, just after M.T. began visiting with A. She said she had first suspected about a week before the custody hearing in Orange County that M.T. was molesting A. She intended to tell the judge in the family law court about A.’s statement about M.T. licking her “kus kus,” but that she was unable to do so because she had no lawyer and no interpreter. She also said that she did not take A. to a doctor because she was afraid that a social worker would be called and that she would lose A.
The judgment and the minutes from the custody hearing show that S.V. was not present—the matter went by default. Moreover, S.V. also claimed that she did not realize until 2007 that M.T. was molesting A., when W. told her what A. had said. She said that she asked W. to talk to A. to find out what was going on, but insisted that she did not ask W. to ask her about sexual abuse. Up until then, she “never imagined” that A. was being molested, in spite of A.’s odd behavior and the fact that S.V.’s older daughter had been molested by her father in approximately 2004. She also said that she did not believe A. was being molested until the social worker and the police “told” her so.
S.V. also described A.’s recent behavior, which included bedwetting, urinating and defecating in her pants, and destructiveness. She admitted, however, that none of that behavior had occurred until after DPSS placed A. in group therapy with other purported child victims of sexual abuse, in which the six-, seven- and eight-year-old children were apparently asked to recount their experiences.
The parties stipulated to the admission of statements by members of M.T.’s family, A.’s kindergarten teacher and her daycare provider, attesting that none had noticed any indication that A. was being abused. The daycare provider’s letter is attached to the jurisdiction report. In it, the provider stated that as of February 2007, she had been A.’s babysitter for three years and that she had never seen any abnormal behavior or behavior different from that of the other five children she babysat.
The court found the evidence insufficient as to all allegations. It stated that although A. was competent to testify, it could not base a judgment on her out of court statements to DPSS or her testimony, primarily because at the hearing she denied that her father did anything bad to her. The court needed corroboration in order to find the allegations proven.
The court did not find corroborative evidence which was sufficient to tip the balance to a preponderance. The medical report did not provide corroboration because it was inconclusive. The court concluded that this did not amount to sufficient evidence of molestation “even by a preponderance standard.”
The court found other corroboration lacking as well. Although W. had told social workers that A. reported that M.T. molested her, W. did not confirm that in her testimony. On the contrary, she denied that A. told her any such thing. She also testified that A. “never” used words such as “kus kus.” Finally, the court did not find S.V. credible. Despite S.V.’s denial that she had asked W. to ask A. if she was being molested, the court believed that S.V. had “point blank” told W. to ask A. about being molested by her father. The evidence persuaded the court that S.V. “had it out” for M.T. and that she had a motivation to fabricate allegations of sexual abuse to try to retain custody of her daughter. The court found it not credible that S.V. would not have taken A. to a doctor after A. reported being molested. The court found it “particularly telling” that S.V. said she was afraid that her daughter would be taken away if she took her to a doctor. The court cited S.V.’s experience with DPSS and the juvenile courts.
S.V. testified that she blamed M.T. for the breakup of her relationship with J.G., the “love of [her] life,” and that she felt that he had taken advantage of her situation to obtain custody of A. She also felt that he was “stealing” A. from her by keeping her for longer than the weekend visits he was initially supposed to have. She was also upset that he had not paid her enough child support.
The detention report cited numerous instances of referrals to DPSS. In addition, S.V. testified that while she and A. were living at her sister’s home, her sister’s son drowned. She sent A. to live with M.T. because she was afraid that DPSS would take A. away. This was apparently before M.T. had joint legal custody.
Both S.V. and A. filed timely notices of appeal. DPSS did not file a notice of appeal, nor did it file a respondent’s brief. It did, however, file a letter stating its support for the positions taken by both appellants.
LEGAL ANALYSIS
S.V.’s STANDING TO APPEAL THE DISMISSAL
An order dismissing a dependency petition on its merits is a final, appealable judgment. (In re Lauren P. (1996) 44 Cal.App.4th 763, 767-768 (Lauren P.).) Only a person who is aggrieved by a judgment has standing to appeal. (Id. at p. 768.) As a person whose rights are arguably “‘injuriously affected by the judgment’” (ibid.), A. is unquestionably aggrieved by the order dismissing the petition. We question whether S.V. also has standing, as she asserts, however.
S.V. is clearly not personally aggrieved by the order, which absolves her of allegations that she failed to protect A. and which leaves in effect the family law order for joint legal and physical custody of A. In Lauren P.,this court held that because a parent has the right to present evidence and argue in support of a dependency petition, a parent who takes the position that dependency jurisdiction is warranted “must be allowed to appeal from a dismissal on the merits.” (Lauren P., supra, 44 Cal.App.4th at p. 770.) Other courts have disagreed with that conclusion and the reasoning which underlies it. (See In re Paul W. (2007) 151 Cal.App.4th 37, 60-61; In re Carissa G. (1999) 76 Cal.App.4th 731, 734-739; In re Eric H. (1997) 54 Cal.App.4th 955, 963-966.) M.T. does not dispute S.V.’s assertion that she, too, has standing, however, and we will assume, without deciding, that S.V.’s interest in obtaining protection for her daughter against sexual abuse is sufficient to give her standing to appeal the dismissal of the petition. (See Lauren P.,at pp. 770-771.)
THE COURT DID NOT APPLY AN ERRONEOUS CRIMINAL LAW EVIDENTIARY STANDARD IN DETERMINING THE TRUTH OF THE SEXUAL ABUSE OR FAILURE TO PROTECT ALLEGATIONS
S.V. contends that the court erroneously applied a “criminal law standard” to determine whether the allegations of sexual abuse and failure to protect were true. She contends that the error was prejudicial because substantial evidence does not support the court’s conclusion that the allegations were unproven.
In connection with a similar argument, which we will address separately, A. interprets the court’s application of the incorrect legal standard to apply only to the allegation, pursuant to section 300, subdivision (c), that A. has suffered or is at risk of suffering serious emotional damage. We agree with A. that the ruling applied only to the section 300, subdivision (c) allegation.
In rendering its ruling, the court first analyzed the evidence supporting the sexual abuse allegation, stating that it could not rely solely on A.’s uncorroborated testimony and giving reasons for finding insufficient corroborating evidence. It then went on to discuss the evidence concerning the allegation of serious emotional damage pursuant to section 300, subdivision (c), making following statement:
“Now, [A.’s attorney] asks me to find true the allegations under the (c) count, 300(c). And, in essence, what you’re asking me to do is to interpret the circumstantial evidence. And there is additional potential corroboration here in the form of circumstantial evidence. That circumstantial evidence being the injuries.
“There is an instruction in the criminal law. It’s the old CALJIC instruction 2.01. And it’s pretty much the same in the new CALCRIM instructions where the law instructs: Where there are two reasonable interpretations, one of which points to the defendant’s guilt, and the other to his innocence, the Court is required, or trier of fact, is required to adopt that interpretation that points to the defendant’s innocence.
“There are two reasonable interpretations, in my mind, as to why A[.] is experiencing the emotional trauma that is alleged here. One of them is she is a victim of child molest. The other is that after countless adults keep prodding her about whether she was molested by her dad, the trauma that was produced about that is equally likely it was caused by that kind of conduct. [Sic.]
“And under the law, both interpretations, in my opinion, are reasonable. And I am, even though this is not a criminal proceeding, I am going to adopt the interpretation that points to innocence. [Italics added.]
“Another potential piece of circumstantial evidence is . . . Dr. Horowitz’ examination of A[.]. And her conclusion was that it may or may not be as a result of child molest.
“That doesn’t even get us to a preponderance standard. In order to reach a preponderance standard, we have to reach an evaluation where it’s more likely than not. Dr. Horowitz could not render that opinion. So, I find no corroborating evidence to support both [the] hearsay declaration of A[.], as well as her testimony here in court. Although, her testimony here in court was that nothing ever happened to her.
“So, accordingly, even by a preponderance standard [italics added], the Court is not able to find the allegations true. And I so rule.
“I find that all of the allegations under 300(b) (c) and (d) are untrue.”
Although the court referred to two items of circumstantial evidence—the evidence tending to show the cause of A.’s emotional damage and the medical evidence concerning sexual abuse—the court unequivocally limited its discussion of the “two reasonable interpretations” rule to the evidence of emotional damage. It did not apply it to the sexual abuse allegation. It is equally clear that as to the sexual abuse allegation, the court found the evidence insufficient to satisfy DPSS’s burden of proof by the applicable standard—a preponderance of the evidence. (§ 355 [burden of proof at jurisdiction hearing is preponderance of the evidence].) Accordingly, we conclude that the record does not support the argument that the court applied an erroneous legal standard in determining the sufficiency of the evidence to prove the sexual abuse allegation.
S.V. contends that the court’s purported application of the criminal law standard was prejudicial because “there was substantial evidence to support the allegations that A[.] was a minor as described in section 300, subdivisions (b) and (d), and not substantial evidence [to] support the trial court’s ruling.” Because this contention rests on a premise we have rejected, we need not address it. Nevertheless, for the sake of completeness, we have reviewed the record and have determined that the evidence was clearly sufficient under the applicable standard of review.
We find it curious that S.V. does not assert insufficiency of the evidence as an independent ground for reversal, if she truly believes that the evidence is insufficient.
Elsewhere in her argument on this topic, S.V. contends that because the court applied an incorrect standard, it failed to exercise its discretion “in accord with the proper legal principles.” The decision to dismiss a dependency petition is not, however, a matter within the court’s discretion. Rather, if the court concludes that the petitioner has met its evidentiary burden, the court must sustain the petition. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198-199 (Sheila B.).) Conversely, if it finds that the burden was not met, it must dismiss the petition.
As one court noted: “Applying the semantics of [the substantial evidence] standard to a failure of proof is problematic[;] [d]o we review the record to determine if sufficient evidence supports the trier of fact’s determination that the evidence was insufficient? . . . ‘To find substantial evidence in support of a finding of no evidence draws the reviewing court into a kind of juridical shell game.’” (Sheila B., supra, 19 Cal.App.4th at p. 199, citation omitted.) However, the court went on to hold that in making such a determination, “an appellate court defers to the trier of fact . . . and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] ‘Issues of fact and credibility are questions for the trial court.’ [Citations.] It is not an appellate court's function, in short, to redetermine the facts. [Citation.] Absent indisputable evidence of abuse—evidence no reasonable trier of fact could have rejected—we must therefore affirm the juvenile court's determination.” (Id. at pp. 199-200, italics added.)
Here, the court reached its conclusions based on conflicting evidence and on its assessment of the credibility of the witnesses. The testimony of both A. and W. contradicted the statements attributed to them in the jurisdiction report, and the court apparently found their testimony credible. The court explicitly found S.V.’s testimony not credible. We cannot reweigh the evidence or draw different inferences than did the trial court. (Sheila B., supra, 19 Cal.App.4th at p. 199.) In particular, we cannot second-guess the court’s assessment of S.V.’s credibility, as she urges us to do. A reviewing court cannot observe the demeanor of witnesses (ibid.), and we cannot assess the extent to which the court’s subjective impression of S.V.’s demeanor and truthfulness influenced the court’s articulated reasons for disbelieving her. In any event, the court’s stated reasons for disbelieving S.V. are reasonable inferences from the evidence.
Moreover, S.V. does not point to any indisputable evidence of the sexual abuse of A., and in reviewing the record we found none. Accordingly, S.V. has failed to demonstrate that the evidence was insufficient to support the court’s finding that the allegations were not proven. (Sheila B., supra, 19 Cal.App.4th at p. 200.)
THE COURT DID NOT ERR IN FINDING THE EMOTIONAL DAMAGE ALLEGATION UNTRUE
Section 300, subdivision (c) provides, in pertinent part, that a child is subject to dependency jurisdiction if the child “is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.”
Here, the court found insufficient evidence that A.’s emotional problems, including her diagnosed posttraumatic stress disorder, were the result of the conduct of either parent. The court stated that the evidence supported two possible inferences with respect to the emotional damage allegation: that A.’s emotional problems resulted from sexual abuse or that they resulted from prodding by “countless adults . . . about whether she was molested by her dad.” The court found the two inferences “equally likely.” It dismissed the emotional damage allegation on that basis. A. now contends that the dismissal must be reversed because the court’s ruling was based on its inappropriate use of the “two reasonable inferences” rule applicable to criminal proceedings, as discussed above.
A.’s theory does not withstand scrutiny for two reasons. First, the proponent of a fact which must be proven by a preponderance of the evidence must persuade the trier of fact that the inference the proponent wishes to draw is more likely to be the truth than any other possible inference which could be drawn from the evidence. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 139, pp. 198-199; Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 [“Where, as here, the plaintiff seeks to prove an essential element of her case by circumstantial evidence, she cannot recover merely by showing that the inferences she draws from those circumstances are consistent with her theory. Instead, she must show that the inferences favorable to her are more reasonable or probable than those against her.”].) Here, the court stated that the two inferences were both reasonable and expressed no opinion that either was more likely to be true than the other. Thus, having found the two inferences equally well founded, the juvenile court was obligated to find that DPSS failed to meet its burden of proving that A.’s emotional problems resulted from sexual abuse, at least on the “parental fault” theory for the emotional damage allegation. (§ 300, subd. (c).) The court’s comment about choosing to apply the inference favorable to “innocence” is therefore superfluous and may be disregarded.
The second flaw in A.’s argument is that an inference may not be drawn from “facts” the trier of fact has rejected. (See, e.g., People v. Hannon (1977) 19 Cal.3d 588, 597 [jury may not be instructed that it can draw a particular inference unless there is evidence which, if believed by the jury, would support the suggested inference].) Here, the court determined that the sexual abuse allegation was not true. Consequently, there was no factual premise from which it could have inferred that A.’s emotional problems resulted from the (nonexistent) sexual abuse. Thus, despite the court’s statement that both inferences were reasonable, the facts as determined by the court supported only one inference, i.e., that whatever the source of A.’s emotional problems might be, it was not sexual abuse by her father.
A. also asserts that the court’s dismissal of the emotional damage allegation is erroneous as a matter of law because the court failed to consider jurisdiction under section 300, subdivision (c) on the alternative basis, i.e., that A. was suffering or was at risk of suffering severe emotional damage and there is “no parent . . . capable of providing appropriate care.” (§ 300, subd. (c).) She notes that there is no evidence in the record concerning the ability of either parent to recognize the emotional trauma A. was suffering or to provide her with appropriate care. However, the burden was not on the parents to prove that they were capable of providing appropriate care. Rather, it was the petitioner’s burden to prove that A. had no parent capable of providing adequate care, if it chose to rely on that theory. A. does not point to any evidence in the record which supports the conclusion that neither parent was capable of providing appropriate care, and we, again, have found none. Consequently, there was no basis for finding jurisdiction on the nonfault prong of section 300, subdivision (c).
After the court had issued its ruling, M.T.’s attorney stated that M.T. intended to get A. into individual counseling immediately.
DISPOSITION
The order is affirmed.
We concur: King, J., Miller, J.