Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Valerie Skeba, Juvenile Court Ct. No. CK71916 Referee. Writ denied.
Law Office of Barry Allen Herzog, Ellen L. Bacon and Molly L. Walker for Petitioner.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Real Party in Interest.
No appearance for Respondent.
KRIEGLER, J.
Eric J. (father), father of the minor child E.J., petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. He seeks review of an order setting a permanent plan hearing under Welfare and Institutions Code section 366.26. Father asserts the juvenile court erred in finding jurisdiction over E.J. and in denying reunification services under section 361.5, subdivisions (b)(6) and (e)(1). We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
On March 5, 2008, 12-year-old E.J. revealed to her school counselor that she had been sexually abused by father. The counselor had already noticed that E.J. was introverted, did not come to school regularly or in a sanitary condition, and wore women’s clothing rather than the school uniform. Acting on the counselor’s referral, the Department of Children and Family Services (DCFS) investigated.
DCFS interviewed various members of E.J.’s family. It appears E.J. and her younger half-sister, J.J., were staying with their maternal great-aunt (great-aunt) because their regular caregiver’s husband had “kicked” them out. While living with great-aunt, J.J. had “slipped” and mentioned the abuse. Great-aunt asked E.J. about the allegations, and E.J. confirmed their truth. E.J. indicated that father had touched her on her breasts and “down there,” though she denied that father had ever engaged in intercourse with her. E.J. told great-aunt that father offered her money to keep quiet.
Police and the District Attorney also investigated, and received reports from E.J. and her family members similar to those obtained by DCFS. Father was subsequently arrested and charged with committing lewd acts upon a child within the meaning of Penal Code section 288, and continuous sexual abuse of a child within the meaning of Penal Code section 288.5, subdivision (a).
According to great-aunt, E.J. told her regular caregiver, the maternal grandmother (grandmother), of the abuse approximately one month earlier. However, grandmother did not believe E.J. When great-aunt questioned grandmother about the matter, grandmother stated that father denied any wrongdoing when confronted. Great-aunt advised E.J. to tell the school counselor. However, E.J. did not want to tell anyone because she did not want father to go back to jail. Father had already served 12 years in prison for committing lewd or lascivious acts against children under 14 years old. He also had an extensive criminal record, including misdemeanor convictions for unlawful sexual intercourse with a minor and sexual battery. He is a registered sex offender.
In this petition, father questions the adequacy of proof of his prior convictions and his status as a registered sex offender. However, he never objected to the admission into evidence of DCFS reports establishing the nature of his prior convictions and his status as a registered sex offender, including attached printouts from the California Department of Justice reflecting his criminal history. Thus, father has waived any objection to the adequacy of that evidence. We further note father never disputed the accuracy of the reports that he was convicted for committing sex crimes against children and is a registered sex offender. Nevertheless, because the juvenile court stated it was not relying on father’s status as a registered sex offender in order to find jurisdiction, and so did not employ the presumption of jurisdiction contained in section 355.1, subdivision (d), we will not consider the matter further.
DCFS also interviewed E.J., who confirmed the abuse occurred. E.J. and J.J. had lived with their mother until her death, then had gone to live with grandmother. E.J. started visiting father when she was nine years old. E.J. stated that the second week she visited with father, the abuse began. She claimed that during weekend visits with father and his family, father would enter the room E.J. shared with father’s other daughter, would remove E.J.’s clothes to fondle her breasts and vagina, and would masturbate “on [her] lap.” E.J. denied intercourse occurred, distinguishing that from father’s placing “the tip” of his penis slightly in her vagina. E.J. reported father once offered her $100 dollars to allow intercourse, but she refused and scooted away. E.J. also stated father put his fingers inside her. E.J. did not call out because she was frightened. Father’s other daughter did not wake up. Father told E.J. to keep the abuse their secret. E.J. finally told J.J. about the abuse in January 2008 and grandmother in February 2008, but claimed grandmother did not believe her.
E.J. also told the social worker that she had been “kicked out” of grandmother’s home a week earlier. She stated that grandmother’s husband had verbally abused her and J.J., had choked and attempted to hit them both with a baseball bat, had beaten J.J. with a belt, and had threatened to kill the children for being too noisy. E.J. further reported that grandmother keeps little food in the house, and tells E.J. there is not enough money to buy her a school uniform.
J.J. confirmed to the social worker that grandmother’s husband threatened to hit her with a baseball bat, but E.J. stepped in. J.J. also confirmed that the husband hits her with a belt and chokes her, and verbally abuses both children. He also verbally abuses grandmother and threatens to hit or kill her, though J.J. does not believe he actually will. J.J. stated that because grandmother does not have enough money, she does not buy clothes for J.J. and keeps little food in the house, leaving J.J. hungry. J.J. also confirmed that E.J. told her of abuse by father, and that E.J. no longer wanted to visit father. J.J. thought grandmother did not believe E.J. about the abuse because “most people don’t do that.”
DCFS interviewed grandmother as well. She stated that E.J. told her of the abuse a week earlier, but she did not believe E.J., suspecting E.J.’s claims were simply because E.J. does not like father and is angry at him. Or, grandmother thought, E.J. claimed abuse because she does not want to live with father in four years when grandmother’s husband retires and grandmother pursues her intention to move back to Thailand. It was hard for grandmother to determine the truth. Grandmother spoke to father, who denied he had ever been alone with E.J. Still, grandmother wanted to consult an attorney about the matter. She acknowledged she was suspicious because father had a criminal background and had not been in E.J.’s life until two or three years earlier.
Grandmother further admitted she asked great-aunt to watch the children because E.J. had gotten into a confrontation with grandmother’s husband, during which E.J. threatened to kill the husband and he retorted with a threat to beat E.J. Grandmother denied that her husband ever hit, choked, or threatened to kill the girls, but admitted he had grabbed each of them tightly by their collars and had verbally abused them. Grandmother denied any domestic violence by her husband toward her. As for her alleged failure to provide for the girls, grandmother asserted that E.J. had numerous school uniforms, but had intentionally spilled things on them or lost them because she did not like them. Grandmother stated she would buy E.J. a new uniform when she receives E.J.’s social security check. Grandmother claimed to have enough food in her house. Grandmother intends for the children to receive money from a settlement relating to their mother’s death, but anticipates other relatives will ask that for money.
On March 6, 2008, DCFS decided to detain E.J. and J.J. They were placed in foster care. Father called DCFS to state that he had no knowledge of problems with living conditions at grandmother’s house, but that he did not like having E.J. with great-aunt. If E.J. could not be with grandmother, father wanted E.J. to live with him. Father also asserted that “allegations” were being made that were not true. DCFS then made a visit to grandmother’s home. While it was clean, the social worker observed very little food in the house. The social worker also interviewed grandmother’s husband, who denied all allegations against him.
DCFS was advised by police not to further interview father because a criminal investigation was pending.
On March 11, 2008, the juvenile court approved the detention in foster care. DCFS filed a petition pursuant to section 300, alleging that E.J. had been sexually abused by father. The petition also alleged that father failed to protect E.J. by leaving her with grandmother, whose household was insufficient and whose husband was verbally and physically abusive.
The petition also alleged that J.J. was abused and not properly provided for by J.J’s father, but J.J. is not a party to this petition.
In anticipation of a jurisdictional hearing on that petition, DCFS again interviewed the family. On March 25, 2008, E.J. confirmed her description of the sexual abuse, though this time she denied any penetration occurred. She again stated that grandmother and other family members did not believe her. She also denied that she was sexually active. E.J. downplayed abuse by her grandmother’s husband, but still affirmed that he had a temper and had been verbally and physically abusive. She also described the food in grandmother’s house in the same manner as before and reported wearing her dead mother’s clothes. She anticipated grandmother buying her more clothes should a settlement over her mother’s death comes through. J.J. similarly confirmed that E.J. told her of the sexual abuse. J.J. again indicated that grandmother’s husband had choked her and struck her with a belt.
Father was unavailable for an interview due to his incarceration on criminal charges relating to the abuse. However, father’s sister told DCFS that father would never have abused E.J. She stated, “No way in hell will I believe that.” She did not know whether father was a registered sex offender. Father’s wife also disbelieved the allegations.
In her further interview, grandmother again denied the abuse occurred, this time claiming that E.J. had actually threatened to lie about the abuse to avoid living with father should grandmother return to Thailand. Grandmother believed that was because she had spoiled E.J., while father was strict. Grandmother also denied that father was a registered sex offender. Grandmother thought great-aunt was the source of E.J.’s allegations. She noted that E.J. dresses inappropriately for her age. E.J.’s maternal aunt (aunt) similarly denied the abuse, stating that father was strict with E.J., requiring her to do chores, watch father’s other child, and wear appropriate clothing. Aunt also stated that she would not let E.J. have a boyfriend. Aunt thought E.J. had “an attitude.” Aunt denied any domestic violence in grandmother’s home and believed the children were fed and clothed properly.
In contrast, great-aunt continued to believe E.J. Great-aunt felt grandmother had been in error not to do anything about the abuse sooner. Great-aunt also believed grandmother was not adequately feeding or clothing the children, but was using their social security payments for herself. Great-aunt thought there had been some domestic violence in grandmother’s household in the past and claimed that grandmother’s husband physically abused the children.
DCFS also learned that on March 28, 2008, E.J. was hospitalized for harboring suicidal ideation, but was released after consulting a counselor. On April 14, 2008, a medical examination was performed on E.J., which was normal. The examiner could not confirm or negate a sexual abuse finding.
Father requested a contested jurisdictional hearing. The hearing went forward on June 2, 2008, June 3, 2008, and June 12, 2008. DCFS’s prior reports, including their attachments, were admitted without objection. Extensive testimony was taken from E.J. and various family members. The testimony reflected what DCFS had already reported: that E.J. claimed abuse but grandmother and other family members did not believe her.
E.J. elaborated that the first instance of abuse occurred in father’s bed, where he took E.J. after his wife left the house. Thereafter, he came into the room where E.J. and his other daughter were sleeping, though his other daughter never woke. E.J. stated that father touched her breasts and between her legs with his hands, tongue, and “private part” but denied that father had put them inside her body. She finally told J.J. about the abuse because when she was bad, grandmother threatened to send her to live with father, which she did not want to do. E.J. had “made up a lie” and told grandmother father made her “do a whole bunch of stuff,” like picking up after him. While E.J. admitted father did not require her to do any different chores than his other daughter, he did call E.J. names. E.J. further admitted she had once spoken to her cousin and half-sibling about having sex, but she meant with father, not with another boy. She explained that when grandmother’s husband tried to hit her with a bat, it was a false swing, so he did not really try to hit her. However, she confirmed that he tried to choke her.
The half-sibling was a third child of father’s, not heretofore mentioned.
Father’s other daughter, aged 10 years, testified that father never touched her. E.J. did not tell her of any abuse. Nor did she suspect that father was touching E.J., even though she sleeps lightly enough to be awakened by the cat or the floor creaking in their room. She admitted that her mother, father’s wife, was upset by E.J.’s testimony, and she believed that she could help her dad get out of prison by telling the truth. E.J.’s cousin and half-sibling then testified what E.J. once claimed, in response to their questions, to have had sex with a boy from her school and with another man. Father’s sister also testified, stating that after the detention hearing, E.J. began crying and told her, “I didn’t know it would go this far. I didn’t mean to say this. It didn’t happen.” Father’s sister advised E.J. to tell the truth about what happened, though neither E.J. nor father’s sister told the DCFS monitor that E.J. had recanted. Father’s sister admitted she had never believed E.J. Nor did she believe that father had been guilty of committing lewd acts on a child, despite his conviction on that charge.
One witness said the other man was E.J.’s mom’s dad’s son; another said it was E.J.’s mom’s boyfriend’s son.
Grandmother testified that E.J. regularly lied, as lots of kids and young girls do, and that E.J. had threatened to lie about father molesting her to avoid living with him. Grandmother claimed not to know that father had been convicted of sexual offenses against children. However, she knew nothing happened, so would not change her opinion even if she learned father had been convicted of such offenses.
Finally, husband’s wife testified. She asserted that she was always in the home with E.J. and father, and that E.J. was not telling the truth. She stated that she only works weekdays beginning at 8:00 a.m. and the girls have school, so there would not be a morning when she was gone so early that father could have taken E.J. to their room. She also testified to being a light sleeper, accustomed to hearing the girls or father wake and move around the home. She never knew father to leave their room to go into the girls’ room. Everyone slept with their bedroom doors open. E.J. never told father’s wife she was uncomfortable with father or had been touched inappropriately, and the wife never observed anything that made her worry. Despite his prior conviction, father’s wife did not consider him a threat to the girls.
On June 12, 2008, the juvenile court announced its ruling on the matter. It began by noting that it did not consider father’s prior convictions in reaching its conclusion on jurisdiction. Rather, it considered the testimony of the witnesses and found E.J. to be credible, based on her demeanor and consistent description of the abuse. The court determined that the other witnesses were not credible, as they were clearly invested in protecting father and addressed peripheral issues. Thus, it found that clear and convincing evidence showed E.J. was at a risk of harm from both sexual abuse by father and failure to protect. It sustained the section 300 petition as written, with the exception of the allegation that father knew or reasonably should have known that grandmother’s husband was physically abusing E.J. Based on the sustained allegations of sexual abuse, the court went on to deny reunification services to father, as provided in section 361.5, subdivision (b)(6), and due to his indefinite incarceration. The court then set a section 366.26 hearing. This petition followed.
The juvenile court had earlier dismissed counts alleging father failed to protect E.J. by abusing alcohol, but no party has raised that dismissal as an issue in this petition.
DISCUSSION
Sufficiency of the Evidence
Father begins with an assertion that the juvenile court’s findings are not supported by substantial evidence. First, he attacks the finding of jurisdiction under section 300, subdivision (d), for sexual abuse. He catalogues the “vast inconsistencies” he detects in E.J.’s various statements to the authorities and the court about the sexual abuse, particularly her differing accounts of the degree to which father actually penetrated her and the number of times the abuse occurred. Due to those inconsistencies, father concludes E.J. cannot be considered credible. But a witness’s credibility is a matter for the juvenile court to decide. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043; see also In re Lucero L. (2000) 22 Cal.4th 1227, 1249-1250.) The appellate court will not reweigh the evidence, but will view the record in the light most favorable to the juvenile court’s order. If substantial evidence, contradicted or uncontradicted, supports the order, it will be affirmed. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
In accordance with the proper standard of review, ample evidence appears in support of the juvenile court’s order. E.J. consistently described the nature of the abuse to her family, to DCFS, to police, the district attorney, and to the juvenile court. That abuse fell well within the definition of abuse alleged by the petition. The petition specifically invokes the definition of abuse contained in Penal Code section 11165.1, subdivision (b), which describes sexual assault as including any penetration, however slight, of the vagina, or any sexual contact between the genitals of one person and the mouth or tongue of another. Thus, even without penetration, the touching described by E.J. alone meets the definition. Though father produced several family members to cast doubt on E.J.’s statements, the juvenile court was entitled to believe E.J. instead and contrary testimony does not undermine the evidence in support of the court’s order.
Father appears to particularly object to language in the petition that alleges the abuse was “rape.” While the legal definition of rape is not invoked by the petition, the fact is that Penal Code section 263 makes it clear that rape may be accomplished by even the slightest penetration, which is consistent with E.J.’s description of father’s conduct.
Father further challenges the sufficiency of the evidence supporting the finding of failure to protect. He notes the juvenile court did not believe he had reason to suspect grandmother’s husband was physically abusing the girls. However, because the court already has jurisdiction over E.J. under section 300, subdivision (d), any failure of proof on subdivision (b) allegations is harmless. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) In any event, the record does reflect evidence supporting the court’s conclusion. E.J.’s counselor reported she was arriving at school irregularly and in an unsanitary condition, wearing her dead mother’s clothes. E.J.’s sister and grandmother confirmed she had no school uniform. E.J. and J.J. mentioned the paucity of food that grandmother provided. Father himself expressed dissatisfaction at the fact that E.J. had been sent to live with great-aunt at one point. However, father took no steps to correct E.J.’s situation. There is substantial evidence that father failed to adequately protect E.J.
Reunification Services
Father goes on to attack the juvenile court’s denial of family reunification services for him. The court stated it was denying services in accordance with subdivision (b)(6) of section 361.5. Subdivision (b)(6) states that the court “need not” provide reunification services to a parent who severely sexually abused a child so as to support jurisdiction under section 300, and where the court makes a factual finding that it would not benefit the child to pursue reunification. Citing In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1651-1652, father asserts the factual findings referenced in the statute must be stated on the record, and the court’s simply invoking the statute was not enough.
However, the same court that decided In re Rebekah R. later decided In re S.G. (2003) 112 Cal.App.4th 1254. In In re S.G., the appellate court clarified that it did not mean to require reversal of a no services order simply for a court’s failure to recite findings. (Id. at p. 1260.) Rather, the appellate court explained, “We did not hold that absent explicit findings we could not uphold a denial under section 361.5, subdivision (b)(6). Indeed, in the next portion of our opinion, we reiterated the pertinent rule of appellate review, that is, we will infer a necessary finding provided the implicit finding is supported by substantial evidence.” (Ibid.)
In this case, the record reflects substantial evidence to support the findings implied by the juvenile court’s reference to denial of services under section 361.5, subdivision (b)(6). There was evidence that E.J. had been sexually abused within the meaning of Penal Code section 11165.1, subdivision (b), which defines sexual assault as including father’s activities with regard to E.J. There was evidence that father’s abuse of E.J. occurred in the context of her visits to his home, where he was ensured easy access to her. The court expressed shock at how unwilling E.J.’s family members were to believe E.J., given father’s multiple convictions for sex crimes against children under 14 years old. Father imposed on E.J. by telling her his abusive conduct would be their secret. E.J. indicated she did not want to live with father. That evidence supports the court’s reference to section 361.5, subdivision (b)(6), as a basis for denying reunification services. (See § 361.5, subd. (h).)
Indeed, the evidence supporting a finding of severe sexual abuse within the meaning of section 361.5, subdivision (b)(6), is so substantial that even if the juvenile court did fail to make adequate findings under that section, the error is harmless. Though not raised before the juvenile court, we note that section 361.5, subdivision (c), mandates that the court “shall not order reunification for a parent or guardian described in paragraph . . . (6) . . . of subdivision (b) unless the court finds by clear and convincing evidence that reunification is in the best interest of the child.” Subdivision (c) calls into question whether, on this record, the court had discretion to grant reunification services to father at all.
Father goes on to challenge the sufficiency of the juvenile court’s finding that his indefinite incarceration would support denial of reunification services. It appears the court acted pursuant to section 361.5, subdivision (e)(1), and found that the probable length of father’s incarceration suggested it would not be in E.J.’s interests to order reunification services. Father objects that there are no findings that it would not be in E.J.’s interest to participate in reunification. However, because services were properly denied pursuant to section 361.5, subdivision (b)(6), we need not reach the merits of father’s contention. Moreover, the juvenile court did not close the door to reunification on this ground. Instead, it stated that if father was released from jail in a timely manner, he could simply petition to have reunification services provided. Thus, father fails to show he is irreparably harmed by the court’s order.
DISPOSITION
The petition for extraordinary relief is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: TURNER, P.J., MOSK, J.