Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Commissioner.
Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Frederick Klink and O. Raquel Ramirez, Deputy County Counsel for Plaintiff and Respondent.
CHAVEZ, J.
Jorge C. (father) appeals from a judgment of the juvenile court declaring his son Jonathan (born January 2008) a dependent of the court under Welfare and Institutions Code section 360, subdivision (d). Father argues that the juvenile court’s findings were not supported by substantial evidence and that the juvenile court erred when it terminated jurisdiction with an order denying father visitation with Jonathan while father remained incarcerated. We affirm.
All further statutory references are to the Welfare & Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Jonathan, the subject of this appeal, has two half-siblings, Ariana (born July 2000), and Bryan (born January 1998). L.C. (mother) is the mother of all three children. Mother is not a party to this appeal, nor are the fathers of Ariana and Bryan.
1. The referral
The children came to the attention of the Department of Children and Family Services (DCFS) as a result of a referral alleging that father had sexually abused Ariana. According to the referral, on March 15, 2010, Ariana told her babysitter that she had been molested by father in the past. The babysitter called mother, who took Ariana to the police station to make a report. At the time, mother and father had been separated for about a year.
Ariana stated that she was approximately six years old when father began to molest her. The incidents would occur at night while mother was working. Father would touch her with his hands and his penis. Father would take off her clothes and his clothes as well. Ariana stated that on numerous occasions father would “put his private part inside” of her, and when she would not do what he asked her to do, he would hit her. Ariana denied noticing any vaginal bleeding, but stated that it hurt when father penetrated her or when she tried to urinate after he molested her.
Bryan reported that he was aware that father was molesting Ariana. Bryan remembered father calling Ariana to his bed. Ariana would come back crying and would tell Bryan that father did “nasty stuff” to her. Bryan never witnessed father molesting Ariana, but he indicated that he once saw father come out of the closet when Ariana was in the closet naked. Bryan knew Ariana was naked because the clothes she had previously been wearing were on the floor.
Bryan stated that he never told anyone about this because he was scared that father would hurt him. In addition, Ariana had made him promise not to say anything to anyone.
Mother denied having any knowledge that father was abusing Ariana. Mother stated that as soon as she found out about the abuse, she reported it to law enforcement. At the time of the report, mother and father were involved in an ongoing custody dispute over Jonathan. Mother stated that she tried to keep Jonathan from visiting father, but that the police informed her that she had to comply with visitation orders.
The babysitter, Rosario D., was also interviewed. She explained that she had been watching the children since Bryan was three months old. There was a period when she did not watch the children because mother and father were together and father would stay home with the children most nights while mother worked. After the parents separated, father rented a bedroom in Rosario’s home for approximately six months. During this time, she babysat Ariana, Bryan and Jonathan overnight a few times. Rosario never noticed anything suspicious or odd but she did find pornographic films in father’s bedroom while he resided in her home.
Rosario became aware of the abuse after Ariana told her friends, Rosario’s granddaughters, that father had molested her in the past. Rosario spoke to Ariana about the information Ariana had shared with her granddaughters, and Ariana confirmed that it was true. Rosario stated that she immediately informed mother, who immediately took Ariana to the police.
2. Sexual abuse examination
On April 28, 2010, Ariana was taken in for a sexual abuse examination. Ariana reported that “on multiple occasions perpetrator would wake her while sleeping and bring her into his bedroom (or occasionally the living room).” According to the report, Ariana disclosed that there was vaginal contact and penetration with his penis, anal contact and penetration with his penis, oral copulation of genitals, anal and genital fondling, and non-genital acts (kissing). Ejaculation did occur, and lubricants were used. In addition, father used force or threats in order to maintain Ariana’s silence. He also showed her pornographic videos.
The results of the exam were normal, and the examiner could neither confirm nor negate sexual abuse.
3. Interview with father
Father was interviewed by DCFS on May 21, 2010. He stated that he is the father of Jonathan, but that he raised Ariana and Bryan as his own. Both children called him dad. Father wanted to adopt the children and had given them his last name. However, he and mother separated before he was able to adopt the children. Father used to visit with all three children, but he had not seen Bryan or Ariana in about a year. Mother would not allow him to see them, and they refused to see him. Father stated that mother was also trying to keep Jonathan from seeing him, so he took mother to court. In February 2010, the court had granted him visitation with Jonathan every Monday for four hours and every other weekend from Friday to Sunday. Since the court made the visitation order, mother tried to keep Jonathan from father on two occasions and father had to call the police for help.
Father informed the social worker that he was not aware of the sexual abuse allegations against him. He denied them. He indicated that he believed this was a ploy to keep him from seeing Jonathan. Father did admit that once, several years before, he looked at Ariana’s vaginal area when she complained of pain after Bryan hit her with a bat. Father stated that mother may be trying to use this story against him.
4. Police investigation
On June 6, 2010, Detective Platero, who was in charge of this investigation, stated that due to lack of physical evidence, the amount of time that had elapsed since the alleged abuse, and concerns that this was a “custody and divorce battle, ” the District Attorney was not taking these allegations seriously. She added that it was uncertain at that time if an arrest would be made. However, Detective Platero had spoken to both children, and she indicated that “you can’t help but see the credibility.” She also indicated that she spoke to the babysitter, the babysitter’s children, as well as mother, and that the stories were all consistent. Father was scheduled to be polygraphed and interviewed for the first time on June 23, 2010.
On June 30, 2010, Officer Platero reported that father was arrested on June 23, 2010. Father had failed the polygraph exam. After being confronted with this failure he finally admitted to “rubbing his penis on her vagina and touching her vagina with his fingers.” Father admitted that the scratch he had previously mentioned on her vagina was caused by him while he molested her. Father denied penetrating her, but admitted that he wanted to have sex with her.
Bryan and Ariana were re-interviewed by law enforcement on June 25, 2010. Based on the children’s statements, bail was set at $1.7 million. Detective Platero informed DCFS that father was in jail and “he’ll either stay in jail or be deported.”
5. Section 300 petition and initial hearings
On July 7, 2010, DCFS filed a petition on behalf of all three children pursuant to section 300, subdivisions (a), (b), (d), and (j). The petition alleged that on prior occasions, two to four years earlier, father sexually abused Ariana. In addition, the petition alleged that father physically abused Ariana when she resisted his frequent forcible rapes. The petition alleged that Bryan and Jonathan were also at risk due to father’s abuse of Ariana.
An arraignment report was filed with the petition. It included the March 15, 2010 report from the Los Angeles Police Department, as well as the results of the examination of Ariana. The report further explained that mother and father “had an on-going custody/ visitation dispute in Family Law Court of Los Angeles. The most current order granted mother and [father] joint legal custody of child Jonathan.”
On July 7, 2010, an initial detention hearing was held. Father was incarcerated and was not present for the hearing. The juvenile court found father to be the presumed father of Jonathan. The court ordered that Bryan, Ariana and Jonathan be detained from their fathers and released to mother. Father was not granted visitation until further order of the court. Father’s arraignment was continued to July 12, 2010.
On July 12, 2010, father was present and arraigned. The court ordered DCFS to explore the possibility of finding relatives to monitor father’s visits with Jonathan, as well as the possibility of visits at father’s place of incarceration. DCFS was ordered to address this issue in a report prepared for the pretrial resolution conference.
6. Pretrial resolution conference
DCFS filed a jurisdiction/disposition report in anticipation of the pretrial resolution conference, which was set for August 12, 2010. On August 4, 2010, a DCFS social worker visited father at the men’s central jail. At that time father denied the allegations. He said that when he went to the police station, they told him to “say that the allegations were true and they will let me go within a couple of days, but they lied to me, they tricked me.” Father stated that he never touched Ariana, and stated that he believed that the allegations were “all mother’s idea, so she can stay with my son Jonathan.” Father insisted that he had a good relationship with the children.
The children’s babysitter, Rosario, was also interviewed. She stated that once, during the time that father was renting a room in her home, she went into his bedroom and saw Ariana sitting at the end of the bed “with a little portable gadget that played movies.” When she walked into the room Ariana immediately closed the gadget and put it away. The following day, the babysitter found it and opened it. She saw that it contained a pornographic film. She took the gadget from father’s bedroom and told him he should not leave such things out in the open where the children would have access to them.
Father’s sister-in-law was also interviewed. She was married to father’s brother. She stated that father had been living in her home for about one year at the time when he was arrested. She lived with her two daughters, aged 13 and 9, as well as an 18-month-old son. Her daughters denied any inappropriate touching or comments from father during the time that he resided with them. Father’s sister-in-law stated that she didn’t believe father would do something like that. She never saw anything inappropriate from him. Father’s brother was unavailable at the time of the interview with father’s sister-in-law because he was visiting father. However, father’s sister-in-law stated that father’s brother would be “willing to take Jonathan so [father] can have visits with his son.”
DCFS recommended that the court sustain the petition and terminate the case with a family law order that would provide joint legal custody to the parents and sole physical custody to mother. DCFS further recommended that father’s visits with Jonathan be monitored by a monitor approved by mother, and that father have no contact with Bryan or Ariana. DCFS further recommended that father complete parenting education, sexual abuse and individual counseling before modifications of the family law order were made.
The matter was continued to September 28, 2010, for a contested hearing.
7. Interim review report
On September 28, 2010, DCFS filed an interim review report. DCFS had attempted to live-scan paternal relatives Jesus G. and Cristobal A. However, they did not have valid passports. Jesus did not have a valid driver license or social Security Number. A CLETS scan of Cristobal indicated an arrest for obstruction or resisting a public officer in violation of Penal Code section 148, subdivision (a), which was a detention only. Paternal relatives indicated that they would try to get passports “with the 1551 stamp in order to live-scan, ” however as of the writing of the report the paternal relatives had not contacted DCFS. DCFS reiterated its prior recommendations that the court sustain the petition and terminate the matter with a family law order. On September 28, 2010, the hearing was continued to November 4, 2010, for appropriate notice to the fathers of Bryan and Ariana.
8. Contested adjudication/disposition hearing
On November 4, 2010, the contested adjudication hearing took place. Father was present in custody and was being assisted by a Spanish interpreter. In its interim review report filed on the same date, DCFS continued to recommend that the court sustain the petition and award mother and father joint legal custody of Jonathan, with sole physical custody to mother. DCFS recommended that father be granted monitored visits with Jonathan and no contact with Bryan or Ariana. Further, DCFS recommended that father complete parenting education, sexual abuse counseling and individual counseling before modifications to the family law order were made. The matter was submitted on the social workers’ reports and the petition, which had been amended by the parties.
Father’s counsel argued that the petition should be dismissed as to father because DCFS failed to meet its burden to prove that Jonathan was at risk of abuse. Counsel argued that there was no physical evidence supporting Ariana’s allegations, and that her exam was within normal. Had there been rape or sodomy, father argued, there would have been physical evidence. In addition, the family was involved in a custody battle. The allegations came after father attempted to continue to obtain visits with his son. Further, the allegations were remote in time and therefore could not be the basis of current jurisdiction.
Minors’ counsel argued that the petition should be sustained because the reports were consistent and credible and supported by the statements of Ariana’s brother. Further, if Bryan was affected by father’s abuse of Ariana, then Jonathan, who was pre-verbal, was at risk as well. County counsel supported the argument of minor’s counsel.
The juvenile court found by a preponderance of the evidence that the allegations in count a-1 were true as amended. Count b-1 was stricken, and counts b-2, d-1, j-1 and j-2 were sustained as amended against father. The court noted that due to father’s threats and physical abuse of Ariana, both she and Bryan had been afraid to disclose the abuse. The court found that “the abhorrent sexual behavior by this father places the siblings at risk of abhorrent sexual behavior.”
Father renewed his request for visitation. Father’s counsel indicated that father had family and friends who were willing to transport Jonathan to visit him while father remained in custody.
The court then proceeded with the dispositional orders. The three children were declared dependents of the court pursuant to section 300, subdivisions (a), (b), (d), and (j). Pursuant to section 361, subdivision (c), the court found clear and convincing evidence that there was a substantial danger if Jonathan were returned home to the care and custody of the father. There were no reasonable means to protect the child without removal from father’s physical care and custody. Further, the court found that reasonable efforts were made to prevent and eliminate the need for the child’s removal from the father.
The juvenile court terminated jurisdiction over Bryan and Ariana, finding no need for family law orders. Next, the court terminated jurisdiction over Jonathan with a family law order granting mother full physical and legal custody. The court made a no-contact order preventing visits between father and Jonathan “until [father] is released from incarceration.” Thereafter, father would have monitored visits with Jonathan. The court found that it would be “detrimental for the two-year-old to be transported to prison given the circumstances in this case.”
The court stayed its order pending receipt of a family law order. On November 15, 2010, mother’s counsel filed the custody order and final judgment granting mother full physical and legal custody and ordering no visits with father until he is released from custody. Father was denied reunification services because Jonathan was safe with mother and the case was closed with an exit order.
On November 9, 2010, father filed a timely notice of appeal.
DISCUSSION
I. Juvenile Court findings and orders
A. Father’s position
Father argues that substantial evidence does not support the court’s findings and orders. Father emphasizes that mother and father were engaged in an on-going custody battle at the time the allegations were made. In addition, the only objective evidence in the record was an inconclusive medical examination, which put into question the credibility of the allegations made by Ariana and her brother. Finally, father argues, his suspect admissions obtained by the Los Angeles Police Department were not explored. In sum, father argues, the evidence was not properly scrutinized by the juvenile court due to excessive caseloads and the court’s “predisposition toward detention and finding abuse.”
B. Standard of review
A child may not be taken from the physical custody of a parent unless the juvenile court finds by clear and convincing evidence that 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 to the parent, and there are no reasonable means by which the minor’s physical health can be protected without removing the child from the parent’s custody. (§ 361, subd. (c)(1).)
When the trial court makes findings under the clear and convincing standard, the substantial evidence standard remains the standard of review on appeal. (In re Cole C. (2009) 174 Cal.App.4th 900, 916.) Both the jurisdictional and dispositional findings are reviewed under the substantial evidence standard. (In re E.B. (2010) 184 Cal.App.4th 568, 574.) Under this standard, we determine whether there is any substantial evidence, contradicted or uncontradicted, which supports the conclusion of the trier of fact. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) All conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. When there is more than one inference which can reasonably be deduced from the facts, we are without power to substitute our own deductions for those of the trier of fact. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
C. Substantial evidence supports the court’s findings and orders
As set forth above, our job is not to reweigh the evidence, but only to determine whether there is any substantial evidence, contradicted or uncontradicted, which supports the conclusion of the juvenile court. (In re John V., supra, 5 Cal.App.4th at p. 1212.) Such evidence exists in this case.
Ariana’s allegations were detailed and consistent. She described washing her mouth with toothpaste after father kissed her because father “would not even wash his teeth.” She also described the use of lubricants, explaining “[h]e used to put something that came from a bottle on his privates.” After fluid would come out of his penis onto her back, “[h]e would get a paper and clean me.” These types of details are not what one would expect from a nine-year-old who had been coached to lie.
In addition, Ariana’s allegations were revealed in a way that does not suggest that they were contrived. Ariana first revealed the molestation to friends -- her babysitter’s granddaughters -- who then informed their grandmother. After confirming the truth of these statements with Ariana, the babysitter contacted mother. Thus, the allegations did not appear to be encouraged by mother, who only heard of them after Ariana had revealed them to her friends and her babysitter.
Bryan’s statements also support the truth of Ariana’s allegations. Bryan recalled father calling Ariana to lie on the sofa with him. Bryan admitted that he could not see what they were doing because a blanket was covering them. On another occasion, when he got up to use the bathroom, Bryan noticed that Ariana was in the closet naked with father. When asked how he knew Ariana was naked, Bryan explained that Ariana’s clothes were on the floor. The details that Bryan described make his statements credible, and support Ariana’s allegations of abuse.
The babysitter also corroborated Ariana’s allegations that father had shown her pornographic videos. The babysitter described seeing Ariana in her father’s bedroom during the time that father was renting a room from the babysitter. Ariana had a small gadget that shows videos. Upon seeing the babysitter, Ariana quickly closed the video player. The babysitter later opened the gadget and saw that it was playing a pornographic video. She reprimanded father for leaving the video out in the presence of the children.
Finally, the juvenile court had before it the statement of Detective Platero, who reported that, during an interview, father admitted to molesting Ariana.
Based on this evidence, the court found that “the abhorrent sexual behavior by this father places the siblings at risk of abhorrent sexual behavior.” Thus, under section 361, subdivision (c), the court determined that there was a substantial danger if Jonathan were returned to father’s custody and that there were no reasonable means to protect Jonathan without removal from father’s care. The evidence described above, provided by Ariana, Bryan, the babysitter, and Detective Platero, constitutes substantial evidence supporting these findings.
II. Visitation
Father next argues that the juvenile court erred when it terminated jurisdiction over Jonathan with a family law order that denied father visitation with Jonathan during father’s incarceration.
DCFS took the position below that the court should allow father monitored visits with Jonathan while incarcerated. Thus, DCFS has taken no position regarding this argument on appeal.
An order regarding visitation is reviewed under an abuse of discretion standard. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) A reviewing court does not disturb a discretionary decision unless an abuse of discretion is clearly shown. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Under this standard, we will not disturb the decision of the juvenile court “‘“unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’ [Citations.]” (Ibid.)
In support of his position that he was entitled to visitation, father relies on section 362.1. This section provides, in pertinent part:
“(a) In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, or to encourage or suspend sibling interaction, any order placing a child in foster care, and ordering reunification services, shall provide as follows:
“(1)(A) Subject to paragraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child.
“(B) No visitation order shall jeopardize the safety of the child. To protect the safety of the child, the court may keep the child’s address confidential....”
We find that section 362.1 is inapplicable. As set forth within the language of the statute, it applies only when a minor is placed in foster care and reunification services are ordered. Here, Jonathan has been placed in the home of his parent, mother. When a child is safely in the custody of one parent, “the court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home. [Citation].” (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.) As father has acknowledged, he was not granted reunification services. Therefore, section 362.1 does not support his request for visitation.
The cases father cites also do not support his argument. In each case, the parent challenging the visitation order had been granted reunification services. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1005-1006 [as part of reunification plan, the court ordered that father have “reasonable supervised visits” with his son]; In re Jonathan M. (1997) 53 Cal.App.4th 1234, 1236 [discussing Orange County Social Services Agency’s alleged policy imposing arbitrary distance limits beyond which visitation with dependent children need not be provided to incarcerated parents as part of their reunification services]; In re Dylan T. (1998) 65 Cal.App.4th 765, 775-776 [where mother was granted reunification services, insufficient evidence was presented that child would suffer detriment by visiting mother while she was incarcerated].)
Father was denied reunification services, and the case was closed with a family law order granting mother full legal and physical custody of Jonathan. Father has failed to present a legal basis for his claim that he is entitled to visitation. The juvenile court’s discretionary determination that it would be detrimental for Jonathan to be transported to jail to visit father is well within the bounds of reason. Therefore we decline to disturb the order of the juvenile court.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.