Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Ct. No. CK68352, Albert J. Garcia, Commissioner.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Leonard L. Linares, Deputy County Counsel, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Q.W., the father of D.W. and I.Y., appeals from the juvenile court order sustaining dependency jurisdiction over the children under Welfare and Institutions Code section 300. Q.W. argues there was insufficient evidence that he sexually abused D.W. and I.Y.’s half-brothers, or that his substance abuse presented a substantial risk of physical harm to D.W. and I.Y. We hold substantial evidence supported the court’s finding of dependency jurisdiction, and we affirm.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
On May 25, 2007, the Los Angeles County Department of Children and Family Services (DCFS) detained D.W, at the time 23 months old, from his Mother’s and Q.W.’s custody. DCFS also detained D.W.’s three half-brothers. On May 31, 2007, DCFS filed a petition under section 300, subdivisions (a), (b), (d), and (j), seeking to have the four children declared dependents of the court. As eventually amended, the petition alleged that the children were at risk because Mother and Q.W. have a history of domestic violence and because Mother had physically abused D.W.’s three half-brothers (subd. (a)). The petition also alleged that Q.W. had sexually abused two of D.W.’s half-brothers, that Mother, who knew about the abuse, had done nothing about it, and that Q.W. and Mother both used illegal substances, so that both parents had failed to protect the children and could not adequately care for them (subd. (b)). Finally, the petition alleged that Q.W.’s sexual abuse of the two half-brothers presented a substantial risk that D.W. would be sexually abused (subds. (d), (j)).
At the time of D.W.’s detention in May 2007, Mother was pregnant with Q.W.’s second child, I.Y., who was born in July 2007, testing positive for cocaine. DCFS detained I.Y. and on July 11, 2007, filed a petition under section 300, subdivisions (b) and (g), alleging that Q.W. was unable to care for her because he had a history of substance abuse (subd. (b)), and failed to provide I.Y. with the necessities of life (subd. (g)).
At the hearing in January 2008, the court dismissed the allegation under subdivision (g) in the interest of justice.
On January 3, 2008, the juvenile court held a combined contested jurisdiction and disposition hearing regarding D.W., I.Y., and their three half-brothers. After hearing testimony by D.W.’s eight-year-old half-brother F. about Q.W.’s repeated sexual abuse of him and of F.’s younger brother L., the court sustained the petitions and adjudicated all five children dependent under section 300. The court removed D.W. and I.Y. from Q.W.’s custody under section 361, ordered that they remain in their current placements, and granted Q.W. reunification services. The order also required Q.W. to undergo substance abuse testing and treatment, domestic violence treatment, and sexual abuse treatment for perpetrators. Q.W. filed a timely notice of appeal.
The court also adjudicated the rights of Mother, of the father of the two older half-brothers, and of the father of the oldest half-brother. Those dispositions are not before us on this appeal.
DISCUSSION
Q.W.’s only argument on appeal is that there is insufficient evidence of either his sexual abuse of D.W.’s two half-brothers or his substance abuse to support the court’s jurisdiction. On the contrary, there is ample evidence, and we affirm.
Although Q.W. inflicted his sexual abuse on the half-brothers of the children involved in this appeal from the dependency proceeding, the dependency statutes apply “to a father who is neither the parent nor the guardian of the physically abused sibling of the child involved in the current proceeding.” (Anthony J. v. Superior Court (2005) 132 Cal.App.4th 419, 427 [construing section 361.5, “‘such interpretation is in harmony with the underlying purpose of the dependency scheme to protect the welfare and best interests of the child’”].)
A. Burden of proof and standard of review
The trial court’s finding that it had jurisdiction over D.W. and I.Y. under section 300 must be supported by a preponderance of the evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193 .) We review the jurisdictional finding to see whether substantial evidence, contradicted or uncontradicted, exists to support it. (Ibid.) “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court.” (Ibid.) Substantial evidence is “‘“reasonable, credible, and of solid value”; such that a reasonable trier of fact could make such findings.’” (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194.) Because we review a cold record, we have “no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence.” (Ibid.)
B. Substantial evidence supports the sexual abuse finding
The court concluded that it had dependency jurisdiction over D.W. under section 300, subdivision (d) (substantial risk that the child will be sexually abused) and subdivision (j) (sexual abuse of sibling presenting substantial risk that child will be sexually abused). Q.W. argues that there is insufficient evidence that he sexually abused D.W.’s two half-brothers, and therefore substantial evidence does not support the court’s conclusion. The record shows otherwise.
DCFS’s detention report stated that an emergency response social worker went to Olive View Hospital in Long Beach on May 25, 2007 in response to a referral made to the child abuse hotline. D.W.’s two half-brothers, F., then seven years old, and L., then three years old, had told their biological father on a visit that Q.W. had sexually abused them, and their father took them to the hospital. While there, three-year-old L. told police officers that Q.W. showed him his “wheat straw” (penis) and that Q.W. had put his wheat straw in L.’s mouth and “butt.” Seven-year-old F. also told the officers that Q.W. put his wheat straw in F.’s mouth and butt “lots of times” and that it hurt. He confirmed that Q.W. also grabbed L., took him in the bedroom, and put his wheat straw in his mouth.
The boys’ father told the social worker that he suspected abuse because Mother had told him on the phone “I think my boyfriend [Q.W.] is messing with the child [F.] sexually.” F. told the social worker that Q.W. “snatched me. Grabbed me fast. He put his wheat straw (penis) in my butt and then something come out white and then he put it in my mouth.” It happened often since Q.W. moved in about a year ago, and F. had told Mother, who fought with Q.W. about it. F. had seen Q.W. do the same thing to L.
Three-year-old L. told the social worker that he had seen Q.W. naked, and indicated that Q.W. had touched him in the groin by pointing to the circled area on a stick figure. L. knew that a wheat straw was a penis and answered yes to whether Q.W. put his wheat straw in his mouth and butt (replying “yes, booty”). He had told his mother, and the abuse had begun when Q.W. moved in. The two boys were examined and both of their anal-genital exams were labeled “Normal exam: can neither confirm nor negate sexual abuse.”
That night, the police arrested Q.W. at his and Mother’s home. The oldest half-brother, 13 years old, who shared a bedroom with Q.W., told the police he had not seen any sexual abuse. Mother also denied that the two boys told her Q.W. had abused them. All four children were detained and eventually placed in foster homes.
In social worker interviews in June 2007, F., by then just eight years old, said that Q.W. had “done things bad” to him and to L., and wrote down, “He did put his wee wee in my mouth and in my butt.” This happened in the living room and bedroom, and happened to L. in the bathroom, where Q.W. would cover his mouth when he screamed. F. gave more details: Q.W. would tell him to turn around, pull down his pants and do it. Although he told Mother and she yelled and fought with Q.W., she told him not to tell his biological father, and the abuse continued. When the social worker asked three-year-old L. about Q.W., he folded his arms and bowed his head and said he did not want to talk about it.
Six months later, F. testified at the jurisdiction and disposition hearing on January 3, 2008. Q.W. was present, as was Mother, but neither testified (Q.W. proffered stipulated testimony denying the sexual abuse allegations). F. stated that Q.W. “stick out his wheat straw and put it in my butt,” pointing to his groin when asked what a wheat straw was. It happened in the bathroom, F.’s pants were off, he was wearing underwear, and it hurt. F. could not remember how many times it happened, but it was more than five times. When asked whether Q.W. ever put his wheat straw in any other part of his body, and whether anything came out of Q.W.’s wheat straw after he put it in his butt, F. said no. He stated that he told Mother more than once, who said she would “get him” (Q.W.) and talked to Q.W.
Q.W.’s counsel argued that F. had made inconsistent statements and that the medical findings were normal, and moved to dismiss the sexual abuse allegations. The court denied the motion. After a recess, counsel cross-examined F. She asked him, “did it bleed when he put it in your butt” and he answered no. She asked him if anyone was there and he said no. She asked him if his pants were down, and F. said yes, down to his feet. He stated that the abuse occurred in the bathroom, and that Q.W. never put his wheat straw in his mouth. He did not see Q.W. put it in L.’s mouth, although he did see Q.W. take L. into the bathroom.
Counsel for Mother then cross-examined F. about whether his underwear was down too (F. said yes). F. stated again that it hurt, and that he cried, and denied telling the social worker that he didn’t cry. F. repeated that it happened more than five times, but stated he did not tell anyone that it was forty times. It always happened in the bathroom, and F. was standing up with Q.W. behind him. F. repeated that Q.W. never put his wheat straw in his mouth. Counsel asked whether L. ever told F. that Q.W. touched L. in a bad way, and F. said yes, that L. also told his mom, and that F. knew what L. was talking about. F. stated that it happened to L. more than 20 times but he didn’t see it. Each time it happened to F., he would tell his mom, but she never did anything about it.
Counsel for Q.W. argued that F.’s testimony was “completely inconsistent.” She pointed to contradictory statements in the reports whether Q.W. put his penis in F.’s or L.’s mouth and argued that if the abuse had taken place as described, the medical examination would have shown abnormalities. Mother’s counsel called F.’s account “beyond incredible” given the lack of physical scarring and F.’s statement that he was standing when the abuse took place. The court nevertheless found the allegations against Q.W. true by a preponderance of the evidence, and declared D.W. a dependent minor.
On appeal, Q.W. repeats counsel’s arguments: F.’s testimony was inconsistent, not physically possible, and unbelievable in the light of the medical examination. Q.W. also asserts that three-year-old L.’s evidence was contradictory and incredible.
We have reviewed L.’s statements and F.’s statements and testimony in painful detail. While F.’s descriptions of the abuse varied somewhat, each account related essentially the same abuse in the same setting. The hearing took place six months after F.’s removal from the home, and yet the eight-year-old’s testimony was largely consistent with his earlier statements. Because “each account related essentially the same . . . incidents . . . substantial evidence supports the juvenile court’s findings.” (In re P.A. (2006) 144 Cal.App.4th 1339, 1344 [although nine-year-old’s description of two instances of sexual abuse by father differed in detail, basic consistencies were enough for substantial evidence].) L., a three-year-old, also gave fundamentally consistent statements about the sexual abuse. We resolve all conflicts in favor of the court’s determination, and on this cold record, we will not reweigh the evidence.
Further, the results of the medical examinations do not make the children’s accounts fundamentally impossible. The reports’ very words, “Normal exam: can neither confirm nor negate sexual abuse,” indicate that sexual abuse could have taken place.
“[W]here, as here, a child has been sexually abused, any younger sibling who is approaching the age at which the child was 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.” (In re P.A., supra, 144 Cal.App.4th at p. 1347.) Substantial evidence supports the juvenile court’s conclusion that D.W., who at the time of the detention was almost two years old, was at risk of sexual abuse under section 300 subdivisions (d) and (j). (Id. at pp. 1347-1348 [both subdivisions apply to minor boy whose older sister had been molested by father].)
c. Substantial evidence supports the substance abuse finding
The court also concluded that it had dependency jurisdiction over both D.W. and I.Y. under section 300, subsection (b), because there was a substantial risk that the children would suffer serious harm from Q.W.’s substance abuse. Q.W. had 11 convictions for possession, transport or sale of various drugs, the most recent in 2003. Both of the fathers of the three half-brothers stated that Mother had told them Q.W. smoked “primos,” or marijuana cigarettes laced with crack cocaine. Q.W. does not deny his drug use. He argues that there is no substantial evidence of a nexus between his substance abuse and any risk to D.W. or I.Y.
Although there is unchallenged evidence of Q.W.’s substance abuse, “[t]he central issue is whether the evidence was sufficient to justify a finding that as a result of this neglect [D.W. and I.Y.] had suffered, or there was a ‘substantial risk’ that [they] would suffer, ‘serious physical harm or illness.’” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The mere fact that a parent uses drugs, without “evidence of a specific, defined risk of harm” to the minor from the substance abuse, is insufficient to sustain jurisdiction. (In re David M. (2005) 134 Cal.App.4th 822, 830 [possible harm must be more than “merely speculative”].) In this case, however, we do not need to speculate about possible harm from drugs to I.Y., who was born with cocaine in her system. That harm resulted from Mother’s cocaine use, but both Q.W. and Mother abused cocaine, and their joint use certainly presented a risk of harm to their infant. Nor are we confronted merely with a parent who uses drugs, but one with 11 convictions for sale, transport and possession. And as “children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety[,]” both D.W. and I.W. (two years old and less than six months old at the time of the hearing) are particularly subject to the risk of harm or illness from the absence of adequate supervision and care that can result from substance abuse. (In re Rocco M., supra, 1 Cal App.4th at p. 824.)
Even without the substantial evidence of the risk to I.Y. from Q.W.’s substance abuse, substantial evidence supported the sustaining of dependency jurisdiction over I.Y., because the juvenile court could find a substantial risk of serious physical harm in the repeated sexual abuse Q.W. inflicted on I.Y.’s two half-brothers. Like her brother D.W., I.Y. was at risk of abuse. A father who has committed numerous incidents of forcible sexual abuse of minor children “reasonably can be said to be so sexually aberrant that both male and female siblings of the victims are at substantial risk of sexual abuse within the meaning of section 300, subdivision (d), if left in the home.” (In re Karen R. (2001) 95 Cal.App.4th 84, 90-91.) Because substantial evidence of such a risk was presented at the hearing, the court could have amended the petition to conform to proof and allege that subsections (d) and (j) applied to I.Y. as well as subsection (b), and could properly have sustained dependency jurisdiction over I.Y. under those sections. (See In re David H. (2008) 165 Cal.App.4th 1626, 1644 [where evidence at hearing clearly demonstrated current substantial risk of harm under section 300, court could have amended the petition, which did not allege such current risk, to conform to proof under section 348 and Code of Civil Procedure sections 469-470].)
Substantial evidence supports the juvenile court’s conclusion that Q.W.’s substance abuse presented a substantial risk of harm to D.W. and I.Y.
DISPOSITION
The January 3, 2008 jurisdictional and dispositional orders are affirmed.
We concur: MALLANO, P.J. ROTHSCHILD, J.