Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County No. EJ3002A-B, Gary M. Bubis, Judge. Affirmed.
BENKE, Acting P. J.
Milton S. appeals orders declaring his minor children, Devon S. and D.S. (the minors), dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (d) and (j). Milton challenges the sufficiency of the evidence to support the court's jurisdictional findings. M.C., the minors' mother (Mother), joins in Milton's argument. We affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The minors came to the attention of the San Diego County Health and Human Services Agency (Agency) in 2008. Devon was six years old and D.S. was seven years old. The minors' maternal grandmother, Janie H., had been living in the same home as the minors. Janie brought the minors to the attention of the Agency based on statements of molestation made by D.S. to Janie.
The Agency scheduled an interview for the minors at Rady Children's Hospital. The interview was videotaped. During the interview, Devon made statements indicating that Milton had sexually abused him. Devon stated his father put his "finger" and a "pointy stick" in his "booty." Devon further stated that the penetration was painful. Detective Hildenbrand observed the evidentiary interview for Devon and D.S. Hildenbrand witnessed Devon's disclosures concerning the sexual molestation. Devon stated Milton inserted a "stick" into his "booty." Devon "shook up" while revealing the information. He went on to explain that the insertion "hurt really bad." Devon also revealed that Milton had put his finger and a "play shovel" into his "booty."
Janie relayed to Agency social workers that Devon previously told her that Milton "sticks his fingers in our butts." Janie claimed that when D.S. was about one year old the child was sitting in Milton's lap. When Janie took D.S. off of Milton's lap, she saw that Milton's pants were pulled down and his penis was exposed. In August 2008 Janie observed D.S. pull on her private parts. Janie told D.S. not to pull on her private parts and D.S. said, "Ow! It hurts! I have a hole down there. Daddy put a hole down there." The Agency social workers asked D.S. if anyone touches her private parts and she nodded her head. When asked who, D.S. said she did not want to tell because she did not want to get someone in trouble. The social worker noted D.S. was seven years old and that she suffered from developmental delays. These delays made her highly vulnerable to abuse.
Social worker Olivares met with Devon to assess his ability to distinguish between the truth and lies. Devon was able to identify the differences between the truth and lies when given examples. Olivares explained to Devon that it was important to only tell the truth and Devon agreed that he would. D.S. was able to identify her private parts on a drawing but she was unable to explain the difference between the truth and lies. When Olivares questioned D.S. as to whether anyone had touched her privates, she nodded but she did not say who touched her because she did not want to get someone in trouble.
Olivares spoke with Mother about the allegations. Mother believed Janie had made up the abuse allegations because Janie and Milton had been arguing. Mother stated that Janie told her about the abuse in August 2008 as well as five years before. Mother told Olivares that after allegations surfaced five years ago, Milton supposedly took D.S. for a medical examination. The examination did not reveal any abuse.
The court held a detention hearing in September 2008. The court detained the minors in out-of-home care and granted supervision between the minors and Mother. The court issued a no contact order for Milton.
In the jurisdiction and disposition report, social worker Blatchley recommended that the court make a true finding on the petitions. Blatchley took Devon to a medical examination. Blatchley explained to Devon that the doctor was going to check his private parts. Devon acknowledged that his private parts were his "pee-pee" and his "booty." Devon identified his private parts on a drawing of a boy. When asked if anyone ever touched his "pee-pee" or "booty," Devon replied that his daddy had touched him. Devon went on to state that his father "put a stick in my booty" and that the stick was "pointy" with "an eraser behind it." Devon claimed he felt pain. Devon claimed this happened to him at his home on his first day of school. His mother was at work and his grandmother was not at home. Blatchley asked him if Milton told him anything when putting the pointy stick in his booty and Devon responded, "Daddy said I'm sorry. I won't do it again."
Blatchley reported that the family lived in a one-bedroom home. The minors slept in the same room as their parents. Mother worked the night shift at her job and Milton cared for the children while she worked. Mother continued to assert that she did not believe the allegations against Milton. She never witnessed inappropriate touching of the children by Milton. Mother stated she did not want Milton to move out of the home and believed Devon made the allegations because he heard statements like that from children at school. She claimed that when Janie accused Milton in the past of touching the minors, Milton would take the children for medical examinations at the hospital. Mother did not know how many times Milton took the children to the hospital.
Blatchley reported that the parents had been provided with a list of referrals for services and were given information for sexual abuse group therapy sessions. Blatchley remarked that the family had many strengths, including the absence of prior child welfare referrals or a criminal history. However, both parents denied the abuse ever happened. Further, Devon's initial forensic medical report indicated that Devon may have had a healing injury in his anal area that would support the allegations he made against Milton. A follow-up examination was required to evaluate any changes to the suspected injured area. Blatchley recommended that the minors remain in out-of-home care until the parents received and were successful in services.
Devon participated in two follow-up examinations. On September 12, 2008, the medical examiner reported that the area seen in the first exam was still present but it was unclear as to whether the area was a chronic fissure or a scar. A third examination was scheduled for two weeks later. The third examination revealed no fissure. There was evidence of a "hypopigmented mucosa" which could be a scar versus a chronic anal fissure.
Contested Jurisdiction and Disposition Hearing
The court held a contested jurisdiction hearing over the course of several days. The court received in evidence various documents and heard testimony from several witnesses. Devon testified at the hearing. Minor's counsel first distributed pictures to counsel and the court for use with truth and lie tasks and morality tasks. The purpose of the tasks was to establish Devon's his ability to tell the truth. No counsel raised challenges to Devon's competency to testify.
Devon testified out of the presence of his parents. He stated he slept in the same room as his parents and sister, but he slept in his own bed. Milton took care of him when Mother went to work. However, when questioned whether Milton had touched him or had done anything to him, Devon stated that no one had touched him or made him feel "sad." He did not recall telling the social worker that Milton "put a stick in [his] booty." Devon also did not know why the social worker took him to the doctor to be examined. Devon claimed to be telling the truth. He also testified his grandmother never told him to say anything about Milton.
Mother testified that she recalled a time about five years ago when Janie reported she saw D.S. sitting on Milton's lap. Janie told Mother that she saw Milton trying to put his penis in D.S.'s diaper. Mother acknowledged that children could be sexually abused without physical indications of molestation. However, Devon never relayed to her that he had been abused or that Milton had put his fingers in his "booty" or put a stick in his "booty." Mother believed Janie was lying about the statements Devon made. Mother remained firm in her opinion that Devon had not been abused and stated it would not make a difference if she had heard Devon make the statements or had seen him demonstrate the action or show expressions of pain while discussing it.
Mother further testified that when Janie made claims of sexual abuse, D.S. was taken to the doctor for an examination. However, the doctor was not aware of why D.S. was there other than to be "checked out."
Concerning Devon's statements that Milton had put a "stick in his booty," Mother described a time when Devon wanted to have a tail. Milton then placed a stick with a flag on it and put it in Devon's pajamas for several minutes. This happened in January 2008. She did not initially remember this instance and that is why it took time for her to disclose this event.
Janie testified she had lived with Mother since October 1996. After D.S. was born, Janie helped take care of her. D.S. required extra care because she had been born premature and suffered from developmental delays.
Janie described the time she had seen D.S. sitting on Milton's lap. D.S.'s diaper had been pulled down in the back. When Janie picked up D.S., she saw that Milton's pajama bottoms were down in the front and his penis was exposed and straight toward D.S.'s behind. Janie told Mother what she had seen. Janie expressed regret for not contacting the police and had hoped that Mother would protect the children.
In August 2008 Janie noticed that D.S. was on a day bed with her legs raised and panties down. Janie told D.S. she would fix her panties and asked D.S. why they pulled down like that, and D.S. said, "Daddy put a hole in there. I'm sore." Janie asked D.S. what happened but D.S. would not answer.
Janie further testified that she had a conversation with Milton in either 2007 or 2008 during which Milton told her he had a problem with putting his hands on children and touching them. Janie told Milton he could get help. Janie admitted she did not disclose this conversation to anyone but testified that she eventually told social worker Blatchley. She regretted not telling the authorities sooner. Janie knew that Milton and Mother did not believe her or the allegations made against them. However, Janie believed the children because "children don't just deliberately say things like that." When questioned as to whether Devon would have made up the statements he made concerning the abuse, Janie opined Devon would not make up those statements.
Janie admitted she had a felony conviction for domestic violence and arson. She denied having a drinking problem as of November 2008 and she denied having any mental health problems.
The court heard extensive testimony concerning Devon's medical examinations. Devon participated in three examinations. Dr. Adams examined Devon in August. Dr. Davis examined Devon in September. Dr. Suresh testified telephonically and had examined Devon on September 25, 2008, and reviewed the two prior reports generated by Dr. Adams and Dr. Davis. Dr. Suresh's final diagnosis, after reviewing the reports and examining Devon, was the pale area of skin next to his anus was of unknown etiology. Dr. Suresh had been informed that Devon had made statements that Milton had inserted a finger, a "stick," and a "shovel" into his buttocks. Dr. Suresh did not examine Devon until four weeks after his initial evaluation. Dr. Suresh opined that it was possible for a child to have been sexually abused where the child has completely normal physical findings upon examination. She had no idea as to whether or not Devon had been sexually abused in any way after concluding her examination.
Laurie Fortin testified in her capacity as the Forensic Interview Program coordinator at the Chadwick Center of Rady Children's Hospital. She was also a licensed social worker and had been since 1993. Fortin testified that she would not give an opinion concerning the credibility of a child's statements. Rather, a forensic interviewer would ask a child questions to determine whether the child was being coached. Young children were at a very high risk of being coached and developmentally delayed children were even more at risk. Fortin explained that there are three categories from which false allegations are produced. The first category is made up of very young, preschool children that are susceptible to coaching. The second category is poor interviewing techniques implemented by an interviewer. The third category is made up of adolescents, cognitively capable of creating stories. Fortin did not find D.S. fit into these categories. However, she testified that it was difficult to know the accuracy of what D.S. reported in general because sometimes she answered the questions presented to her and sometimes she did not.
Agency supervisor Shelly Paule testified that she conducted a risk assessment for the minors in this case and assessed it as very high due to the minors disclosing sexual abuse, Janie's statements of corroboration, the fact that the allegations had been maintained over time, a mother who did not believe the minors and a father who did not participate in services to mitigate the risk. Paule claimed another risk factor was the fact that D.S. was developmentally delayed.
Paule stated Devon disclosed inappropriate touching by Milton on three occasions. Devon first said his father touched his penis in the bathroom when it was wet. This prompted the forensic interview. During the interview Devon disclosed anal penetration. After the interview Devon disclosed to social worker Blatchley that he had been abused by Milton. When Devon disclosed the abuse and discussed the pain, he "squinched." Paule noted literature indicating disclosures were typically more valid with penetration due to emotional impact and pain. Paule further testified that she saw the interview videotape and observed Devon physically flinch and reach backward to his bottom when he disclosed the anal penetration. These actions by Devon confirmed to Paule that Devon recalled the event along with the emotion and pain it had caused him. Concerning D.S., this child had developmental delays and, as a result, she was at a greater risk of sexual abuse since she would be less able to defend herself and less able to articulate things happening to her.
Paule acknowledged that Devon cited various objects relating to the alleged abuse. There may have been more than one incident with different objects. It was not uncommon for a child to give an inaccurate description of the object used to penetrate. Paule was aware that Devon recanted when he testified in court. Paule stated, however, that recanting of information in a formal setting was not surprising to her.
Paule knew Mother and Milton denied the allegations against them and that they believed Janie made up the allegations. Paule did not believe that Janie made up the allegations. Paule further believed that Mother would not be able to protect the minors from sexual abuse. Paule testified that Mother might possibly have cognitive delays because she easily believed everything Milton told her. For example, Mother did not attend the medical examinations that Milton took D.S. to, but she believed everything Milton told her about the results. Further, Mother had not complied with the Agency's requests to have Milton move out of the family home.
After considering the testimony presented at the contested hearing and the evidence presented in the Agency's reports, the court found by clear and convincing evidence that the petitions' allegations were true. The court further found it had jurisdiction over the minors. Specifically, the court found that Devon had been sexually molested, with D.S. being at substantial risk of molest, under section 300, subdivisions (d) and (j) respectively. The court declared the minors dependents, removed them from Milton and Mother's care and placed them in foster care.
The court stated it was "very unusual and unlikely that a six-year-old child is going to be talking about things being stuck up their butt and wincing and doing it on more than one occasion." The court further referred to Janie as a "bizarre" witness. The court did not believe Janie was lying but stated her testimony on its own would not support a finding of jurisdiction. The court also noted that D.S. did not have the ability to relate what had happened.
DISCUSSION
I
Milton's Challenge to the Court's Jurisdictional Findings
Milton and Mother challenge the sufficiency of the evidence to support the court's jurisdictional findings under section 300, subdivisions (d) and (j). Milton further asserts there was a lack of physical evidence of sexual abuse and no testimony was presented to corroborate the allegations against him. Milton further asserts there was an absence of reliable statements and a lack of evidence showing Devon understood the need to tell the truth at the initial interview during which Devon disclosed the abuse. Mother joins in these arguments.
A. Substantial Evidence Supports the Court's Section 300, Subdivision (d) Jurisdictional Finding
Section 300 jurisdiction hearings require a preponderance of evidence as the standard of proof. (§ 355, subd. (a).) In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. 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 supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (d) when the court finds: "The 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." (§ 300, subd. (d).)
Penal Code section 11165.1 defines sexual abuse as sexual assault. Further, the statute defines sexual assault as including, but not limited to, any of the following: "(1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen. [¶] (2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person. [¶] (3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose. [¶] (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. [¶] (5) The intentional masturbation of the perpetrator's genitals in the presence of a child." (Id., subd. (b).)
B. Analysis
Devon's petition, as amended, alleged: "On or about and between August 1, 2008 and August 24, 2008 the child's father Milton Simmons a member of the child's household, sexually abused said child, including the father digitally penetrated the child's anus causing pain to the child." The juvenile court found this allegation true. We conclude the Agency's reports, the testimony of the Agency's witnesses and the statements of Devon regarding sexual abuse, provide competent and sufficient evidence to support the court's jurisdictional findings.
Devon made multiple disclosures indicating Milton had sexually abused him. Specifically, Milton had penetrated Devon's anus with his finger or some other object. Devon stated that this penetration hurt him and he showed signs of pain on his face and touched his buttocks when making the disclosures. Devon also made the disclosures to more than one person, including Agency social workers Olivares and Blatchley, and his grandmother. Detective Hildebrand also witnessed Devon's statements during the interview.
Devon's report of Milton's conduct did not change until Devon testified at the jurisdiction and disposition hearing. Devon then testified that Milton had not hurt him and that nobody had touched him in an inappropriate manner. However, Devon's previous statements were consistent in that they expressed he had suffered anal molestation. Milton argues that the lack of physical findings of abuse shows the molestation did not occur. However, as explained by Dr. Suresh, one of Devon's examining physicians, a child can be molested and have completely normal findings at an examination. Further, even though Dr. Suresh did not conclude that Devon showed signs of physical abuse, she could not say with certainty that Devon had not been abused in any way. Thus, although the physical examinations of Devon neither substantiated nor disproved anal abuse had occurred, the court was entitled to find Devon credible and to disbelieve Milton and Mother's denials that abuse had occurred. (See In re Casey D, supra, 70 Cal.App.4th at p. 53.) Deference to the findings of the trial court are proper because we have no power to judge the effect, value or weight of the evidence, consider the credibility of witnesses or resolve conflicts in the evidence. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.)
Milton further asserts the orders must be reversed because there is no evidence to corroborate Devon's hearsay allegations of abuse and that Devon's statements were not reliable. Milton cites to In re Lucero L.(2000)22 Cal.4th 1227 (Lucero L.) and In re Cindy L. (1997) 17 Cal.4th 15 (Cindy L.),for the proposition that evidence corroborating Devon's statement of molestation was necessary to sustain the jurisdictional finding. First, Lucero L. does not support Milton's argument. In that case, the court concluded that when out-of-court statements made by a child that is found to be incompetent to testify are the sole evidence to support the court's jurisdictional findings, the court has to find the statements reliable before making its findings. (Lucero L., supra, at pp. 1244-1248.) In this case, Devon was found to be competent to testify at trial. Before Devon testified at the hearing, minor's counsel distributed pictures to all counsel and the court for use with truth and lie tasks and morality tasks. The purpose of the tasks was to establish Devon's testimonial competence, including his ability to tell the truth. Counsel for the parents did not object at trial and challenges were not raised concerning Devon's competency. Similarly, in Cindy L., the court considered whether to allow a child's hearsay statements when a child was found incompetent to testify. (Cindy L., supra, at p. 29.) As noted, Devon was found competent to testify at trial and no challenges were ever raised regarding his competency before or during trial. Moreover, before Devon ever testified at trial, he disclosed the abuse to social worker Olivares. Olivares reported that Devon could not explain the difference between the truth and a lie but he could identify the truth versus a lie when given an example. Olivares explained that it was important for Devon to tell the truth and Devon agreed.
In any event, there was evidence corroborating Devon's statements, including the testimony of Janie. The court acknowledged that Janie's statements alone would not support a finding of jurisdiction. However, the court did not believe that Janie lied when testifying. The court did not state it would disregard Janie's statements completely.
Substantial evidence supported the jurisdictional finding that Devon was a child described by section 300, subdivision (d).
C. Substantial Evidence Supports the Court's Section 300, Subdivision (j) Jurisdictional Finding
Milton also argues there was insufficient evidence to support the court's jurisdictional finding for D.S. under section 300, subdivision (j). Section 300, subdivision (j) provides that a child is within the juvenile court's jurisdiction if "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." The court shall consider "circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling... and any other factors the court considers probative in determining whether there is a substantial risk to the child." (§ 300, subd. (j).)
D.S. remains at risk of serious physical harm because of the sexual abuse inflicted by Milton upon Devon. D.S. lives in the same home as Milton and she shares a bedroom with Milton. D.S. is a young seven-year-old child and she is developmentally delayed. The evidence here also shows that D.S.'s developmental problems make it difficult for her to articulate what is happening to her. D.S. would be unable to protect herself from a perpetrator attempting to molest her. In addition, Mother did not believe the allegations made against Milton and she allowed Milton to remain in the family home. Mother's ongoing denial of the sexual abuse perpetrated against Devon renders her unable to protect D.S. from harm. Substantial evidence supports the court's jurisdictional findings under section 300, subdivision (j).
DISPOSITION
The orders are affirmed.
WE CONCUR: HUFFMAN, J., NARES, J.