Opinion
E052867
11-15-2011
In re T.W., et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.W., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Danielle E. Wuchenich, County Counsel, and Jean-Rene Basle, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. J234685 & J234686)
OPINION
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Danielle E. Wuchenich, County Counsel, and Jean-Rene Basle, Deputy County Counsel, for Plaintiff and Respondent.
T.W., Sr., father of two minors, T.W., Jr., and M.W. (hereafter referred to collectively as "the children"), appeals from a dependency judgment declaring the children dependents of the court and removing them from his custody. (Welf. & Inst. Code, §§ 300, 361, subd. (c).) The San Bernardino Children and Family Services (CFS) intervened after the children's half-sibling, C.V., the six-year-old child of father's girlfriend, suffered a genital injury suspected to be the result of molestation by father. Father maintained the injury was caused by falling on steps leading to the entrance of a mobile home. The dependency petition alleged that the children were at risk of sexual abuse as a consequence of the molestation of C.V., along with allegations of neglect and domestic violence. (§ 300, subds. (b), (d), (j).) The juvenile court made true findings on the petitions and removed the children from his custody, and ordered reunification services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father appealed the judgment, asserting there is insufficient evidence to support the finding he molested C.V. We affirm.
BACKGROUND
On August 24, 2010, C.V. was taken to the hospital by her maternal grandmother regarding a laceration found inside her vagina. The maternal grandmother informed the hospital staff that the injury was sustained when she fell down some stairs a day or so earlier. The grandmother was concerned, however, because the child's mother used drugs and mother's live-in boyfriend, T.W., Sr. (father of mother's two younger children) was abusive. The parents had a prior CFS history for various unfounded or inconclusive allegations.
The medical examination revealed a vaginal laceration and hymenal oddities. The findings were not specific for sexual abuse but the child's history raised concerns about neglect and sexual abuse. C.V. was interviewed following the medical examination and informed the social worker that both her six-year-old cousin T., and her "daddy" (T.W., Sr.), had touched her "down there" at the paternal grandmother's residence in Newberry Springs. A detention warrant was obtained from the juvenile court resulting in the temporary removal of C.V., along with her two younger half-siblings, M.W. and T.W., Jr.
Juvenile dependency petitions were filed with respect to M.W., age four, and T.W., Jr., age two, alleging that they were at risk of abuse or neglect due to the parents' failure to protect (§ 300, subd. (b)), sexual abuse of C.V. (§ 300, subd. (d)), and the abuse of a sibling. (§ 300, subd. (j).) At the detention hearing, the juvenile court ordered the children removed from their parents' custody upon a finding of a prima facie case. At that hearing, juvenile court also sustained father's demurrer to an allegation that substance abuse prevented him from properly parenting the children.
The court ordered the removal of the minors and placed them in the temporary custody of CFS. However, prior to the adjudicatory hearing where jurisdiction is established, a juvenile court lacks authority to "remove" a child from a parent's custody. A child may be taken into temporary custody by a peace officer or social worker (§§ 305, 306), and at the detention hearing, the court is empowered to determine whether the minor shall be "further detained." (§ 315.) It is only after the jurisdictional hearing that a court may consider whether it should "limit the control to be exercised over the dependent child" at the disposition phase. (§ 361, subd. (a).) Our interpretation is buttressed by the fact that despite the actual (if brief) removal from the parent's physical custody between the initial detention and the dispositional hearing, section 361.5 is inapplicable in the absence of a disposition hearing ordering a placement with someone other than a parent. (In re A.C. (2008) 169 Cal.App.4th 636, 650.) A court is not authorized to conduct a disposition hearing unless and until it has conducted an adjudication of the dependency petition and found that the child comes within one of the statutory definitions of a dependent child. (§ 300.) Because "removal" is a milestone in juvenile court proceedings, it is important to accurately reflect the court's actions in the minutes.
The jurisdictional hearing commenced on January 25, 2011. At the hearing, father submitted on the neglect allegations and contested only the sexual abuse allegations. Father called C.V., the social worker, and himself as witnesses. Mother also testified. C.V. recalled the incident in which she fell down some stairs and got hurt. She agreed there was blood and that her grandmother took her to the doctor. C.V. also testified that T. touched her and that her "dad" (T.W., Sr.) touched her, and that these were bad touches.
The social worker acknowledged the history given of C.V. falling on the metal stairs at the maternal grandmother's mobile home, but did not agree that the vaginal laceration was caused by the fall. The social worker believed T.W., Sr., caused the laceration because C.V. disclosed he had sexually abused her.
Father, T.W., Sr., denied molesting or otherwise sexually abusing C.V. He was present at the time C.V. fell on the stairs; she had been swimming and was going into the house to use the bathroom when she slipped. C.V. said she was hurt and indicated she was hurt in her privates. Mother took C.V. into the bathroom to clean her up because she had blood on her bathing suit bottom. Mother observed a cut on C.V.'s labia. Prior to the fall, C.V. had not complained of pain and mother had not observed any blood or cuts on C.V.'s vaginal area. However, mother had seen C.V. rubbing her vaginal area, and more recently had seen C.V. putting objects in her vaginal area.
T. is father's nephew. Father was aware that C.V. had alleged T. had touched her, but when he confronted T., the child denied it. M.W. and C.V. had both told mother that T. had touched C.V. Prior to the interview at the hospital, C.V. had never reported being touched by T.W., Sr.
After hearing the testimony, the juvenile court found that C.V. had been touched by father but that he had not caused the laceration in her vagina. The court then made true findings under section 300, subdivisions (b), (d), and (j), as to M.W. and T.W., Jr. The children were declared dependents, and were removed from their parents' custody; the court approved a reunification plan as to M.W. and T.W., Jr., ordering both parents to participate in it.
On February 2, 2011, father timely appealed.
DISCUSSION
Father asserts there is insufficient evidence to support the sexual abuse allegations of the petition because C.V.'s testimony was inconsistent, lacked credibility, and the physical findings were nonspecific for sexual abuse. CFS argues that father lacks standing to challenge the finding of sexual abuse relating to C.V. because he is unrelated to her and not a party to C.V.'s dependency petition. Because the petitions alleged that M.W. and T.W., Jr., came within the statutory description of dependency based on allegations of sexual abuse pursuant to section 300, subdivision (d), based on father's sexual abuse of C.V., father's own rights were affected, and he may challenge the finding in an appeal from the judgment relating to his children. (See In re Frank L. (2000) 81 Cal.App.4th 700, 703.)
We review the trial court's findings to determine whether there is substantial evidence to support them. (In re Maria R. (2010) 185 Cal.App.4th 48, 57.) We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding. (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916, citing In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The issues of fact and credibility are the province of the trial court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
In dependency cases, inconsistencies and discrepancies in victim accounts of abuse are not uncommon. (See In re Rubisela E. (2000) 85 Cal.App.4th 177, 195.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. (In re Maria R., supra, 185 Cal.App.4th at p. 57; In re Cole C., supra, 174 Cal.App.4th at p. 916.) Nevertheless, the testimony of a single witness is sufficient to uphold a judgment. (In re S.A. (2010) 182 Cal.App.4th 1128, 1148.) Inconsistencies and conflicts in the evidence go to credibility of witnesses and weight of the evidence, which are matters for the trial court. (Id. at p. 1149.)
Section 300, subdivision (d), provides in pertinent part that a child is a dependent child if he or she has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in section 11165.1 of the Penal Code, by his or her parent, or the parent or guardian has failed to 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. Brothers of molested sisters can be molested or in other ways harmed by the fact of the molestation within the family, or by the denial of the perpetrator. (In re Karen R. (2001) 95 Cal.App.4th 84, 90.) Both subdivisions (d) and (j) of section 300 require a finding of substantial risk that the child who is subject of dependency proceedings will be sexually abused by a parent or member of the child's household. (In re P.A. (2006) 144 Cal.App.4th 1339, 1347, fn. 6.)
In Karen R., supra, the reviewing court affirmed a jurisdictional finding under section 300, subdivision (d), as to the younger siblings of a sexual abuse victim. The court determined that under the facts of the case (father raped and beat his oldest daughter), the juvenile court could conclude that every minor in the home, regardless of gender, was in substantial danger of sexual abuse by father. (In re Karen R., supra, 95 Cal.App.4th at pp. 90-91.) A similar result was reached in In re P.A., supra, 144 Cal.App.4th at p. 1347, a case involving less shocking facts than those present in Karen R., based on the reasoning that where a child has been sexually abused, any younger sibling who is approaching the age at which the child as abused may be found to be at risk of sexual abuse. "[A]berrant sexual behavior by a parent places the victim's siblings who remain in the home at risk of aberrant sexual behavior." (Ibid., fn. omitted; see also In re Andy G. (2010) 183 Cal.App.4th 1405, 1414.)
In making his argument that there is insufficient solid, credible evidence to support the judgment, father argues that C.V.'s statements were not credible. It is not our function to engage in such an inquiry. Issues of fact and credibility are questions for the trial court. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.) It is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts of the evidence. (In re E.B. (2010) 184 Cal.App.4th 568, 578.) The juvenile court was entitled to find C.V. and the social worker to be credible witnesses. (Ibid.) Further, father has forfeited any objection to C.V.'s statements in the reports submitted to the court for review, and, given that it was father who called C.V. as a witness without any foundational objection to her competence as a witness, any challenge to the sufficiency of her testimony is invited error. (See In re Karla C. (2010) 186 Cal.App.4th 1236, 1266-1267.)
The juvenile court read and considered all the reports and heard testimony from C.V. The court carefully weighed C.V.'s testimony and her inconsistent statements, as demonstrated by the decision to strike the language in allegations that father caused the vaginal injury to C.V., and its focus on C.V.'s testimony that father had touched her at his mother's residence in Newberry Springs. There is substantial evidence to support the jurisdictional findings as to M.W. and T.W., Jr. that they were at substantial risk of sexual abuse within the meaning of section 300, subdivision (d).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur:
McKinster
J.
Codrington
J.