Opinion
NOT TO BE PUBLISHED
APPEAL from an Order of the Superior Court of Los Angeles County No. CK 59949, Jacqueline H. Lewis, Referee.
Christopher R. Booth, under appointment by the Court of Appeal for Appellant Sharon S.
Harry Zimmerman, under appointment by the Court of Appeal for Appellant Robert N.
Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel and William Thetford, Senior Deputy County Counsel, for Respondent Los Angeles County Department of Children and Family Services.
ZELON, J.
Mother Sharon S. and Father Robert N. appeal the dependency court’s jurisdictional and dispositional order under Welfare & Institutions Code section 300, subdivisions (b), (c), and (d) finding that minor D. had been the victim of sexual abuse. Mother and Father contend that the dependency court’s amendment of the petition after the completion of the evidentiary portion of the jurisdictional hearing violated due process and its factual findings are internally inconsistent; Father further argues substantial evidence does not support the jurisdictional findings and the disposition order failed to consider alternatives to removal of D. from his custody. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 27, 2007, the Department filed a petition under section 300, subdivisions (b) and (d) alleging that the parents had exposed then six-year-old D., born October 2000, to explicit sexual materials and explicit sexual activity, and that D. had become extremely sexualized and was at risk for sexual abuse. The petition further alleged that D. had been exposed to a prolonged custody battle in family law court which included Mother’s allegations of sexual abuse by Father; Mother had made numerous false referrals of sexual abuse and had subjected D. to numerous medical examinations; and the parents had a history of domestic violence and substance abuse.
The detention report filed April 25, 2007, stated that the family had previously come to the attention of the Department in July 2005, when a petition under section 300 subdivisions (b), (c), (d) and (j) was filed. At the time the matter was dismissed in November 2005, the social worker wrote in her adjudication report “[i]t is likely that D. had some exposure to sexual activity. It is also likely that the incident took place long ago and that D.’s memory of that event has been degraded. This family has been under the supervision of the Court for four months and we are no closer to understanding the causes of her behavior than we were at the outset.”
On April 7, 2007, in connection with the current case, the Department received a referral alleging sexual abuse. Mother had called to request conjoint family therapy pursuant to the family law court’s order, and stated that D. had been complaining of discomfort in her vaginal area. When the social worker met D. at school, D. said to the social worker “I know that you are an attorney from [the] Department of Children and I know what you are going to ask me.”
On April 11, 2007, the social worker interviewed Father, who denied the allegations of sexual abuse and stated that at the last family law court hearing, the court prohibited Mother from taking D. for forensic examinations because the prior examinations had not disclosed any sexual abuse. Furthermore, the family law court had changed visitation to give Father custody during the week because Mother had been taking D. to school late.
On April 12, 2007, the Department received another referral of sexual abuse. In an interview with the Los Angeles Police Department on April 11, 2007, D. had disclosed that Father had “strip” parties at his home, and she gave very explicit descriptions of sexual intercourse among adults. D. brought to the interview a drawing she had made of naked men and women. D. claimed she had made the drawing at one of the “strip” parties, which took place in an alley in Hollywood.
On April 23, 2007, the social worker interviewed Mother, who stated that the sexual abuse began when D. was approximately two years old. Mother had called the police on April 11, 2007 because D. told her about Father’s “sex parties.” Mother claimed that Father was taking D. and her half-sister to Hollywood or elsewhere to “do pornos.” Mother believed that D. had witnessed a woman “Chocolate” having sex, believed that Father and Chocolate were having sex, and believed they were involving D. in their sex acts.
The Detention Report detailed Mother’s previous allegations of Father’s sexual abuse of D., none of which had been substantiated. The allegations dated back to June 2002.
At the April 27, 2007 detention hearing, the court asked why the Department had not made allegations under section 300, subdivision (c) (risk of severe emotional damage), and concluded that it would find that D. was described by section 300, subdivisions (b), (c) and (d). “Although the Department has not pled a (c), the report and the information in the report clearly supports that.” The court ordered reunification services, monitored visitation, and an initial medical evaluation. The court prohibited the parents from discussing the allegations in the case with D., indicating visitation would be terminated if there was a violation. The court ordered a jurisdictional social study pursuant to section 281, and set the jurisdictional hearing for May 23, 2007.
On May 23, 2007, the Department filed a First Amended Petition, containing allegations under section 300, subdivisions (b), (c) and (d), based upon Father’s sexual abuse of D., Father’s conduct at the alleged “strip” parties, the parents’ ongoing custody battle, and Mother’s substance abuse.
The May 23, 2007 jurisdictional/dispositional report stated that the family law court had ordered D. to attend weekly therapy sessions to address her sexualized behavior. D.’s school attendance had improved since she had been living with Father during the week. D. had told the social worker that she attended strip parties with Father in Hollywood, and she did not like Father’s house because there were strip parties, sexy magazines, all the people were naked and “Chocolate” was there. D.’s maternal aunt told the Department that D. had denied to her that Father sexually molested her.
In conclusion, the report stated that “The parents’ relationship is difficult to divine: the mother appears convinced that father has molested D. on numerous occasions. . . . [¶] . . . [¶] Although there is evidence to suggest that D. has been strongly influenced by [Mother] to allege sexual abuse, her sexual acting out was observed by her aunt in 2005 and on April 12th ’07, D. told [the police] that she had witnessed strip parties and that she has been exposed to sexual activity of some kind. The numerous false accusations against Father [for] sexually abusing D. prompted DCFS to intervene to ensure D.’s safety.” The Department believed the parents were placing D. at the center of their conflict, and the parents had not been able to put their conflict aside for D.’s benefit.
Trial of the contested petition commenced June 26, 2007. D. testified that she went to “strip” parties at Father’s house and at a studio. She stated that whenever she was with Father, there was a strip party; that she saw Father having sex with “Chocolate”; and that Father threatened to hit her with a belt if she said anything about the strip parties to anyone. According to D., at one of the strip parties, Father made her draw a naked person. She asserted that she saw men and women with their clothing off, and they would push together “bam, bam, bam;” that she was four when she went to her first strip party, and had told Mother about them. She testified men tried to touch her and suck her leg, and they touched her half-sister A., who was also at the party; and that Father touched her on her genitals at one of the strip parties, and has touched her breasts. D. claimed to have been to more than 300 strip parties, and to have watched videos over 100 times.
Trial testimony took place over several sessions during July and August 2007, concluding on August 28, 2007.
Mother’s therapist, Mary Ann Aronson, testified that Mother told her that before she learned to speak, D. would “hump” Mother’s leg, and would pull Mother’s face towards her belly and genital area. When D. learned to speak, she would ask Mother to “lick it like Daddy does.” Mother reported to her that D. had gotten out of the bathtub and squatted over Mother’s thighs and rubbed her vulva on them. When Mother asked why she was doing that, D. said, “Daddy likes it.” In Aronson’s opinion, D. had been sexually abused.
D.’s half-sister A., who is eleven, testified that she sees D. every other Wednesday and every other weekend, and she shares a bedroom with D. at Father’s house. She has not been anywhere that Father or anyone else takes all of their clothes off. A. claimed that D. never told her that Father had touched her in a way she did not like, that she had seen Father have sex with other people, or that she saw anyone having sex or watched pornographic movies. A. had never met anyone named Chocolate at Father’s house. She has not been anywhere where Father or anyone else takes all of their clothes off.
Father denied holding strip parties at his home. Father believed the timing of D.’s stories indicated Mother had told her what to say. The “studio” is a photography studio located on Santa Monica and Fairfax and is a building with several business offices. Father admitted that he had owned some pornographic movies, but he did not own them anymore. He had kept them in a closet on the top shelf in the back. He did not show them to D., nor did he catch her watching them. Father claimed the last time he attended a party where people were naked was before D.’s birth.
Father testified that Mother worked doing bondage by submitting photos to companies using the name “Nevada.” Mother would go to parties and perform in front of people. Sometimes when he went to Mother’s house, Father found her and D. sitting around naked, and saw a photograph at Mother’s house depicting Mother and D. in matching exotic Las Vegas-type outfits. Father testified that a picture (attached to the social worker’s report) showing Mother wearing a thong in a suggestive posture was taken at Mother’s attorney’s house, where Mother held “mistress” parties. According to Father, D. told him that Mother spent a lot of time talking about the sexual abuse allegations. D. admitted to him that she lied to one of the police detectives, and told him she did it because she wanted to live with Mother. Father denied hitting D. with a belt.
Mother admitted that she went to three strip parties with Father prior to D.’s birth. There was dancing and drugs at the parties. Mother used drugs at one of them, but did not participate in the sexual activities, although Father did at one of the parties. Mother denied having a bondage website, denied doing “mistress” work, and claimed that she did not know the photograph of her in a thong was being taken. Mother denied asking D. to lie about being abused.
Mother testified she had become concerned by D.’s acting out. At the park one day when she was five, D. was playing ball with a little boy and when his brother would not give the ball back to D., she grabbed his genitals and squeezed. When D. was about two and Mother tried to change her diaper, D. would try to push Mother’s head into it. She believes D. has been exposed to strip parties because she knows names she should not know, such as Chocolate.
At the conclusion of the testimony, the court stated it found that D. needed a suitable placement and intensive individual therapy with a licensed therapist with experience in sexual abuse. The court found A. not credible, and that “Mother and Father were totally incredible witnesses. Both were much more interested in hiding their own lifestyles and beating up on each other, than they were concerned about D. or interested in providing this court with any information that might help to treat her, or frankly save her. In the end, what this court believes is that D. has been exposed to incredibly explicit sexual materials and activities by both parents that have created a great risk of her being further sexually abused.”
The court amended the petition by adding three counts, b-1, c-1, and d-1, which read: “the child [D.’s] parents . . . have created a detrimental home environment for [D.] by exposing her to very explicit sexual material and sexually explicit activities. This exposure has resulted in [D.] becoming extremely sexualized and puts her at great risk of being further sexually abused. The parents have also exposed [D.] to a prolonged custody battle which [has] included allegations of sexual molest[ation] by the Father of [D.] alleged by the Mother. Such behaviors put [D.] at substantial risk of physical and emotional harm as well as risk of sexual abuse.” The court sustained the petition as amended, and dismissed the remaining counts. The court ordered D. placed in foster care, and ordered reunification services for both parents and monitored visitation.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS THE DEPENDENCY COURT’S FINDINGS.
Father raises several challenges to the sufficiency of the evidence to sustain the findings against him. In reviewing the jurisdictional findings and the disposition, we review the record to determine if substantial evidence, contradicted or uncontradicted, supports them. In making this evaluation, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court and we review the record in the light most favorable to the court’s determinations. Issues of fact and credibility are the province of the trial court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “The testimony of a single witness is sufficient to uphold a judgment. [Citations.]” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
1. D.’s Credibility.
Father contends that D.’s testimony, which constituted the bulk of the evidence supporting a finding of sexual abuse, was “inherently improbable” and therefore does not constitute substantial evidence. While conceding that the “stories [D.] told were well beyond what should be within a six-year-old’s realm of knowledge,” Father argues that we must reject her testimony because D.’s claims had been previously rejected numerous times, the social worker noted some problems with D.’s allegations, D. had a “practiced” response to the social worker, D.’s testimony was inconsistent, and there was no corroborating evidence.
The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts, and the appellate court cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) Here, D.’s testimony was within the realm of the possible and therefore was not inherently improbable. D. testified to strip parties where the participants had sex; both parents had admitting attending strip parties prior to D.’s birth; and D.’s knowledge of anatomy and sex was extremely precocious for a six-year-old. Father’s attempts to portray D.’s testimony as incredible necessarily requires us to consider other facts (e.g., D.’s prior unfounded allegations of child abuse, evidence Mother coached D., the social worker’s doubts, and D.’s “practiced” response) and draw inferences from those facts contrary to the dependency court’s findings, which we cannot do where, as here, the evidence is credible on its face.
2. Sufficient Evidence of Causation under Section 300, Subdivisions (b) and (c).
Father contends there was an insufficient causal relationship to support jurisdiction under section 300, subdivisions (b) and (c) because Father’s conduct was not negligent. Father points to the fact he obtained a change in the visitation arrangement to limit Mother’s visitation and to prohibit Mother from taking D. for physical examinations to look for signs of sexual abuse.
Jurisdiction under subdivision (b) requires (1) neglectful conduct by the parent in one of the enumerated forms; (2) causation; and (3) serious physical harm or illness to the child, or substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Jurisdiction under subdivision (c) requires a showing of abusive behavior that results in emotional damage to the child; the Department must prove: (1) the offending parent’s conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior. (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.) Here, the findings under subdivisions (b) and (c) were based upon exposure to sexually explicit materials, the evidence of which primarily came from Father’s and Mother’s testimony concerning the condition of each other’s homes. This evidence is sufficient to support the element of causation Father disputes. The fact that Father was otherwise responsible in taking care of D. while she was in his physical custody does not undermine the dependency court’s findings.
3. Sufficient Evidence to Support Allegations Against Father Under Section 300, Subdivision (d).
Father contends that there was insufficient evidence to support allegations under Penal Code section 11165.1 because D.’s allegations had been rejected numerous times before as unfounded, Mother’s substance abuse problems induced D. to make these unfounded allegations, and more than D.’s fantasies were required to support jurisdiction.
Section 300, subdivision (d) provides for dependency jurisdiction where “[t]he child 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 guardian or a member of his or her household, or the parent or guardian has failed to adequately 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.”
Penal Code section 11165.1 provides: “As used in this article, “sexual abuse” means sexual assault or sexual exploitation as defined by the following: [¶] (a) “Sexual assault” means conduct in violation of one or more of the following sections: . . . paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child). . . . [¶] (b) Conduct described as “sexual assault” includes, but is not limited to, all of the following: [¶] . . . [¶] (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.”
Here, D. testified extensively to the conduct at the strip parties and Father’s conduct towards her. As discussed above, D.’s testimony by itself is sufficient to support the dependency court’s findings. The fact that D.’s allegations of sexual abuse in prior proceedings may have lacked sufficient support, or that there was contradictory evidence at trial does not undermine our conclusion, as it was for the dependency court as factfinder to weigh the evidence.
Father, on appeal, does not challenge the dependency court’s amended charge. While the charge itself may not fall within the scope of § 300, subdivision (d), the evidence believed by the dependency court was sufficient to sustain a (d) count as to Father. This is sufficient to assert jurisdiction over the child. As to Mother, in her reply brief, she argues that substantial evidence does not support a finding she exposed D. to sexually explicit materials based on her failure to protect D. from Father’s conduct because it was Mother who repeatedly complained of Father’s conduct. The argument is forfeited due to Mother’s failure to raise it in her opening brief. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486) However, although we do not reach the merits of Mother’s contentions due to her forfeiture of the issue, we note the allegation concerning Mother’s conduct was confined to exposing D. to sexually explicit materials; given the language of section 300, subdivision (d) and Penal Code section 11165.1, the dependency court’s findings of sexual abuse on Mother’s part stretched the statutory language to its limits.
II. NO INCONSISTENCY IN THE DEPENDENCY COURT’S FACTUAL FINDINGS.
Mother, joined by Father, contends the dependency court’s factual findings are internally inconsistent and cannot support jurisdiction because the dependency court found D.’s testimony credible, but discredited Mother, Father and A.’s testimony. She argues that all evidence that Mother exposed D. to sexually explicit materials came from those discredited witnesses; furthermore, D. testified that it was “perfect” at Mother’s house, she never saw Mother at the strip parties, Mother did not have pornographic material at her house, and D. never saw Mother having sex.
Mother’s evaluation of the sufficiency of the evidence is incorrect. In evaluating a witness, the factfinder is not in an all-or-nothing position; instead, the factfinder may accept some of the witness’s evidence as true and reject other portions of it. (In re Daniel G., (2004)120 Cal.App.4th 824, 830 [trier of fact may believe and accept as true only part of a witness’s testimony].) Therefore, the dependency court could have credited Mother and Father’s testimony with respect to D.’s exposure to explicit materials, while discrediting their testimony with respect to abuse of D. Further, even without the parents’ testimony, there is evidence to support the court’s findings of exposure to explicit materials inherent in D.’s testimony, which was that of a six-year-old child with knowledge of sexual matters far beyond her years.
Even if the dependency court had credited D.’s testimony that Mother’s home was “perfect,” the court’s assumption of jurisdiction over D. was proper based upon Father’s conduct. A jurisdictional finding against one parent is sufficient to bring a child within the court’s jurisdiction. “This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)
III. THE DEPENDENCY COURT DID NOT VIOLATE THE PARENTS’ DUE PROCESS RIGHTS BY AMENDING THE PETITION TO CONFORM TO PROOF.
Mother, joined by Father, contends the dependency court violated their due process rights by amending the petition to conform to proof at the jurisdictional hearing, and that the error is reversible per se. Mother contends that throughout the five months of dependency proceedings, including three months of trial, she had no notice that she needed to defend against allegations she perpetrated sexual abuse upon D., and she did not forfeit the issue by failing to raise it at the time of the amendment. We disagree.
We disagree that we should apply the reversible per se standard to any error the trial court made in amending the petition to conform to proof at the jurisdictional hearing. As explained by analogy to criminal cases, in In re Judith P. (2002) 102 Cal.App.4th 535 (Judith P.), the court noted that “structural error,” or error requiring automatic reversal, is an error that involves “basic protections,” without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence. (In re Judith P., supra, 102 Cal.App.4th at p. 555.) On the other hand, “trial error” is error which occurs during the presentation of the case and is reviewed under a harmless error standard. “An error that occurs during the trial process itself does not require automatic reversal because a court may quantitatively assess such error in the context of other evidence presented in order to determine whether the error was harmless. . . .” (Id. at p. 555.) Here, the alleged error occurred during the jurisdictional and dispositional hearings and concerned the presentation of evidence and whether the evidence post hoc required the amendment of the petition. Such error, if any, could have been addressed at the time of trial and would not undermine confidence in the fundamental fairness of the trial. We therefore apply a harmless error standard, and will reverse only on a reasonable probability the result would have been more favorable but for the error. (In re Celine R. (2003) 31 Cal.4th 45, 60.)
Code of Civil Procedure section 469, governing the amendment of pleadings to conform to proof, applies to dependency proceedings. (§ 348; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041 (Jessica C.).) Section 469 provides that no variance in the allegations of a pleading and the proof presented at trial shall be deemed material unless it has actually misled the adverse party to his or her prejudice in maintaining his or her action or defense on the merits. (Code Civ. Proc., § 469; South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1124.) “The basic rule from civil law, however, is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendments would have misled the adversarial party to its prejudice.” (Jessica C., supra, 93 Cal.App.4th at p. 1042.) Whether a variance is material is determined from the circumstances of the case. (Chelini v. Nieri (1948) 32 Cal.2d 480, 486.)
Code of Civil Procedure section 469 provides, “No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the Court may order the pleading to be amended upon such terms as may be just.”
Section 348 provides that “[t]he provisions of Chapter 8 (commencing with Section 469) of Title 6 of Part 2 of the Code of Civil Procedure relating to variance and amendment of pleadings in civil actions shall apply to petitions and proceedings under this chapter, to the same extent and with the same effect as if proceedings under this chapter were civil actions.”
However, the issue must be raised in the trial court; otherwise it is forfeited and may not be raised for the first time on appeal. (Martin v. Henderson (1954) 124 Cal.App.2d 602, 607.) Therefore, where the findings and judgment are supported by the evidence, and the case was correctly decided on the merits, an objection to a variance between the complaint and proof not timely made is forfeited. (Stienback v. Halsey (1953) 115 Cal.App.2d 213, 220.)
Here, aside from the fact the parents forfeited the issue by failing to raise it in the dependency court, we find no prejudice in the variance between the pleadings and the proof at the jurisdictional hearing. The amended petition, which recited detailed factual allegations, contained allegations under section 300, subdivision (b) (Father’s sexual abuse and exposure of D. to sexually explicit materials; the parents’ history of domestic violence; and the parents’ substance abuse); subdivision (c) (the parents’ custody battle and Mother’s history of subjecting D. to physical examinations to substantiate her claims of sexual abuse); and subdivision (d) (actual sexual abuse of D. by Father). Although the amended petition did not specifically charge Mother with sexual abuse, she was on fair notice from the testimony that such a charge was at issue. Mother testified last; prior to her testimony Father stated that Mother had exposed D. to sexual materials, including having D. dress in an exotic Las Vegas-Style outfit; there were sex toys at Mother’s house accessible to D.; Mother posed nude, had a website with the moniker “Nevada,” and engaged in bondage. Mother was therefore aware that she needed to defend against such allegations.
III. THE DISPOSITION ORDER.
Father contends the dependency court erred in removing D. from Father’s custody because there was insufficient evidence that there were no reasonable means to otherwise protect D. or there was a substantial risk in returning D. to Father.
Second, section 361, subdivision (c), provides in pertinent part: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . [¶] (1) 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 home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. . . .” The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with that discretion. We will not reverse the court’s determination in this regard absent a clear abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
Here, Father disputes the second prong of the analysis under the statute, namely that there were no reasonable means by which D.’s physical health could be protected without removing her from the parents’ physical custody. (See In re James T. (1987) 190 Cal.App.3d 58, 65 [court must consider means other than removal from parent at dispositional stage].) Father’s argument fails because it fails to address the court’s finding that sexual abuse was occurring at Father’s house. Given this finding, the court was under no obligation to consider placing D. with Father in spite of Father’s conduct in ensuring that D. got to school on time.
DISPOSITION
The order of the superior court is affirmed.
We concur: PERLUSS, P. J., WOODS, J.