Opinion
NOT TO BE PUBLISHED
APPEAL from the orders of the Superior Court of Los Angeles County, No. CK79541 Zeke Zeidler, Judge.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
M.S. (father) appeals from the judgment and orders of April 9, 2010, declaring E. and Marcos (the children) dependents of the court under Welfare and Institutions Code section 360, subdivision (d), awarding custody of the children to E.S. (mother) and terminating dependency jurisdiction. Father contends substantial evidence does not support the jurisdictional findings and the order terminating dependency jurisdiction was an abuse of discretion. We conclude substantial evidence supports the findings and the dependency court did not abuse its discretion. Accordingly, we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
E. was born in 2005 and Marcos was born in 2006 to mother and father. Marcos had speech problems and was a client of the Regional Center. Father inflicted domestic violence and emotional abuse on mother and on father’s teenage daughter from a prior relationship. On one occasion, he threw a plate of food at mother almost hitting E.
The dependency court found father is the children’s presumed father.
Regional Centers assist persons with developmental disabilities and their families “in securing those services and supports which maximize opportunities and choices for living, working, learning, and recreating in the community.” (§ 4630.7, subd. (a).)
The parents separated in 2007. Pursuant to family law orders, the children lived with mother and had weekly overnight visits in father’s home, where they slept with father in one bed. Father sexually molested E. during visits by rubbing her vaginal area with force sufficient to cause redness and pain. E. feared father would kill mother if E. told father to stop. E. did not want to visit. In May 2009, the family law court expanded father’s visits.
Beginning in 2007, mother feared father was sexually abusing E. during visitation. Mother confronted father, who responded by threatening mother. She reported the abuse to the doctor and the authorities, but the abuse was not confirmed because of a lack of physical evidence and E.’s very young age, which made her unable to make a disclosure.
The children were detained in mother’s custody on October 23, 2009, because E.’s vaginal area was extremely red and painful when she returned from a visit. E. explained father had caused the injury. A child abuse medical examination confirmed the abuse. E.’s pediatrician observed that E.’s vaginal area was “obviously red and swollen, ” and the child was in “extreme pain.” A distinct odor and discharge came from the vaginal area. A forensic examination conducted at Los Angeles County-University of Southern California revealed perihymenal erethyma, abnormal perianal skin, and a healing laceration of the posterior fourchette. The anal-genital exam was “abnormal.” “[A] positive Wood’s Lamp examination [indicated] sexual abuse.” The medical examiner concluded there was “definite evidence of sexual abuse and/or sexual contact.” A section 300 petition was filed.
“[E]rythema of the hymen... is a redness of the hymenal membrane produced by congestion or engorgement of the capillaries.”
During the investigation of this incident of abuse, E. revealed father had molested her many times before. She disclosed father touched her vaginal area under her clothes with his finger, demonstrating by making a circular motion with her finger. She said it bled a little. When father touched her vaginal area, he would tell her, “You are your mother.” He also touched her vaginal area and anus with his “pee pee.” E.’s babysitter revealed she had observed on one occasion that E.’s vaginal area was red and on another occasion, E. complained of pain in her vaginal area. Mother stated E. told her that father touched her vaginal area and it hurt very much. E. told mother that the touching made her bleed. Mother observed a yellow discharge, stained with red, in E.’s underpants when E. returned from visits. E. told mother the sexual abuse occurred when father was in bed in between the two children. In June 2009, E. returned from a visit with obvious bruising on both her inner thighs, consistent with E.’s legs having been held tightly together while someone forced an object between her thighs. E. stated father had put “his ‘pee pee’ between her legs.” Mother documented the bruising with photographs.
Father was arrested for lewd or lascivious acts with a child under the age of 14 in violation of Penal Code section 288a. He was taken into custody and transferred to an out-of-state immigration detention facility. Father had a prior record of two convictions for disturbance by loud/unreasonable noise, vehicle theft, battery on a peace officer, grand theft from person, driving under the influence of alcohol or drugs, and reckless driving. On November 10, 2009, counsel was appointed to represent father and to contact him at his place of detention.
Father was returned to incarceration in Los Angeles to face the criminal charge against him. If convicted in his criminal case and after service of any prison sentence, father would be deported to Honduras.
On April 9, 2010, the dependency court held the jurisdictional and dispositional hearing. E. failed to qualify to testify when called by father for cross-examination on her statements in the reports. Father requested that E.’s statements in the reports not be relied upon exclusively for a finding of jurisdiction pursuant to In re Lucero L. (2000) 22 Cal.4th 1227. The court overruled the objection, holding, “[t]here is an indicia of reliability of the child’s statements in the reports at the time of the making of the statements.” The children were declared dependents of the court based on sustained allegations under section 300, subdivisions (b), (d), and (j) (Marcos only) that, on numerous occasions, father sexually abused E. by touching her vaginal area with his penis and fondling her vagina, resulting in pain, laceration, and bleeding; and such sexual abuse endangers E.’s physical and emotional health and safety and places E. and Marco at risk of physical and emotional harm, damage, danger, and sexual abuse. Custody of the children was taken from father, and the children were ordered placed in the home of mother. No reunification services were awarded to father, because the children were with another parent. Dependency court jurisdiction was terminated with the following custody and visitation orders: mother was granted legal and physical custody of the children; father was ordered to have no contact with E.; and father was granted monitored weekly visits with Marcos, on condition he makes substantial progress in sex abuse counseling and individual counseling.
DISCUSSION
Substantial Evidence
a. Father’s Sexual Abuse of E.
Father contends substantial evidence does not support the finding father sexually abused E. We disagree with the contention.
In determining whether substantial evidence supports the factual findings, “all intendments are in favor of the judgment and [we] must accept as true the evidence which tends to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been drawn by the trial court.” (Crogan v. Metz (1956) 47 Cal.2d 398, 403-404.) “‘“[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... such that a reasonable trier of fact could [make the findings made].”’ [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) “[I]ssues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S., supra, at p. 321.)
If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (Ibid.)
The record contains abundant evidence supporting the findings that father sexually molested E. by fondling her vagina, causing pain, laceration, and bleeding, and by touching her vaginal area with his penis. E.’s pediatrician, the forensic medical examiner, mother, and the babysitter all observed redness in the vaginal area and observed the vaginal area was very painful. The forensic examination revealed the hymenal membrane was red, the perianal skin was abnormal, and there was a healing laceration of the posterior fourchette, which was “definite evidence of sexual abuse and/or sexual contact.” E. disclosed to mother, her pediatrician, the forensic examiner, the police, and social workers that father rubbed her vaginal area with his finger, demonstrating the circular motion he used, and that father touched her anus and vagina with his penis. She returned from a visit with bruising on her inner thighs. The foregoing is evidence E. was sexually molested. The physical symptoms of abuse and E.’s disclosures occurred upon E.’s returns from visitation with father. E. did not want to visit father. E. consistently identified father as the person who molested her. E. disclosed father slept with her and Marcos in one bed and that is where the abuse occurred. The foregoing is evidence that father was the molester.
Father contends the dependency court abused its discretion by rejecting his argument that E.’s statements could not be used as the exclusive basis for jurisdiction. He contends that, without E.’s statements, substantial evidence does not support the finding he sexually molested E.
Out-of-court statements of a child who does not qualify to testify at the time of the hearing “may not be relied on exclusively unless the court finds that ‘the time, content and circumstances of the statement provide sufficient indicia of reliability.’ [Citation.]” (In re Lucero L., supra, 22 Cal.4th at pp. 1247-1248.) “[A]ny factor bearing on reliability may be considered.” (Id. at p. 1250.) Relevant factors include, but are not limited to: “‘(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate. [Citation.]’ [Citation.]” (Id. at p. 1239.)
Father mischaracterizes the record. The molestation finding was not based exclusively on E.’s statements. The finding was based also on evidence from experts, lay witnesses, the circumstances of the visits, and the appearance of abuse symptoms after visits with father. Thus, even if the evidentiary ruling were an abuse of discretion, E.’s statements were nonetheless admissible and could be used to support a finding of jurisdiction, because the statements were not the exclusive basis for the jurisdictional finding.
In any event, the evidentiary ruling that the statements bore indicia of reliability was not an abuse of discretion. The record before the dependency court contained indicia that E.’s statements concerning the molestations were reliable. Physical symptoms of the abuse E. spoke about-redness, swelling, laceration-were observed by lay and expert witnesses. A forensic medical examination found evidence E. had experienced sexual abuse and/or sexual contact. Witnesses observed that E. was in pain from the injuries to her vaginal area. There were bruises on her inner thighs. The physical symptoms appeared following overnight visits with father. E. repeated her disclosures with relative consistency to mother, the social workers, the police, and medical examiners. E.’s fear of visits was consistent with her disclosures. E.’s graphic demonstration of father molesting her by making circular motions on her vaginal area with his finger reflects experience unexpected of a four-year-old child.
Father’s argument that E. was not molested because DNA samples taken at the time of the forensic examination were negative for sperm is but a request we reweigh the evidence. This we will not do. (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465 [“When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.”].) We conclude substantial evidence supports the jurisdictional finding.
As substantial evidence supports the finding E. was molested, we reject father’s contentions that the order removing E. from his custody and the finding Marcos comes within section 300, subdivision (j) must be reversed because substantial evidence does not support the molestation finding.
b. Risk of Harm to Marcos
Father contends substantial evidence does not support the findings Marcos was at risk of harm under section 300, subdivision (j). The contention is moot. Father failed to challenge the findings the dependency court made under section 300, subdivisions (b) and (d), that his sexual molestation of E. “places... Marcos at risk of physical and emotional harm, damage, danger, and sexual abuse.” “When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; accord, In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6.)
Section 300, subdivision (j) provides: “The child’s 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.”
Regardless of the other bases for jurisdiction, father’s contention fails on the merits as there is substantial evidence supporting the finding that Marcos was at substantial risk of harm. Since Marcos, E., and father were all on the same bed when father molested E., Marcos was exposed to repeated incidents of abuse. (See In re Karen R. (2001) 95 Cal.App.4th 84, 89-90 [by being a witness to the sexual abuse of a daughter, the son can be a victim of the abuse].) Father’s sexual abuse of his prepubescent, four-year-old daughter over a two-year period is so aberrant that one may reasonably infer that father would abuse Marcos, his three-year-old son. (See id. at pp. 90-91 [incestuous sexual abuse of daughter is so aberrant that it can place son at risk of the abuse]; In re Andy G., supra, 183 Cal.App.4th at p. 1415.) Moreover, as father denied his role, he was not rehabilitated, and likely to reoffend. Marcos was especially vulnerable to predation by father, because he had difficulty talking and was developmentally disabled.
Abuse of Discretion
Father contends the orders denying reunification services, terminating jurisdiction, granting mother legal and physical custody, prohibiting father from any contact with E., and limiting father’s visits with Marcos were an abuse of discretion because they were contrary to the children’s best interests. We disagree with the contention.
“The juvenile court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accordance with this discretion. [Citations.] The court’s determination in this regard will not be reversed absent a clear abuse of discretion.” (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104; accord, In re Corrine W. (2009) 45 Cal.4th 522, 532; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
“When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor’s attainment of the age of 18 years, and... an order has been entered [in family court] with regard to the custody of that minor, the juvenile court on its own motion, may issue... an order determining the custody of, or visitation with, the child.” (§ 362.4.) “[I]n making exit orders, the juvenile court must look at the best interests of the child.” (In re John W. (1996) 41 Cal.App.4th 961, 973; see also In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465 [the child’s best interest standard applies to visitation orders].) “We normally review the juvenile court’s decision to terminate dependency jurisdiction and to issue a custody (or ‘exit’) order pursuant to section 362.4 for abuse of discretion[.]” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
Custody and visitation orders made upon termination of jurisdiction are commonly referred to as “exit orders.” (In re John W. (1996) 41 Cal.App.4th 961, 970.)
When a determination is “committed to the sound discretion of the juvenile court, ... the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] As one court has stated, when a court has made a custody determination in a dependency proceeding, ‘“a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’ [Citations.] And we have recently warned: ‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Where substantial evidence supports the order, there is no abuse of discretion. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.)
The orders were not an abuse of discretion. Father was incarcerated and facing a felony charge. He will be deported at the conclusion of his criminal case, including after serving any prison sentence. The family had experienced more than two years of the stress and disruption of child abuse investigations and rancorous family law proceedings. E. was afraid of father. The children were now safe in mother’s custody. Father was not rehabilitated, which made him a danger to both children. It was reasonable to find from these facts that the orders denying reunification and terminating court jurisdiction, with mother having legal and physical custody and father’s right to visit Marcos contingent on participation in rehabilitation programs, was in the children’s best interests. Father asks us to reweigh the evidence and find mother’s home was unsafe based on letters he wrote to the dependency court accusing mother of endangering the children. We decline to follow father’s suggestion. (Scott v. Pacific Gas & Electric Co., supra, 11 Cal.4th at p. 465.) The court appropriately gave no weight to father’s letters, because father refused to testify on cross-examination.
DISPOSITION
The orders are affirmed.
We concur: TURNER, P. J., MOSK, J.