Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK78524 Marguerite D. Downing, Judge.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
Manuel S. (father) appeals from the juvenile court’s jurisdictional order as it pertains to his two-year-old daughter Emily S. Father contends that the juvenile court erred in sustaining allegations that he sexually abused Emily’s half-sibling, I.A., and that he has a history of domestic violence with the children’s mother D.A. (mother), which put Emily at risk. He also contends that the juvenile court erred by denying his request for a continuance during the jurisdictional hearing. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2009, the Los Angeles County Department of Children and Family Services (the department) filed a petition on behalf of Emily and her two half-siblings, I. (age 14) and Ruben A. (age 11) under section 300, subdivisions (b), (d) and (j) of the Welfare and Institutions Code. As sustained, the petition alleged that father had sexually abused I. for the past five years since she was nine years old, repeatedly fondling her breasts and vagina, and that such abuse places all three children at risk; father physically abused I. and Ruben, by kicking I.’s leg and punching Ruben with his fists; and father and mother have a history of violent altercations, which places all three children at risk.
Unless otherwise noted, all statutory references shall be to the Welfare and Institutions Code.
The department’s detention report stated that on August 5, 2009, while the family was staying at a hotel in Las Vegas, everyone except Ruben returned to the room after swimming in the pool. While mother was taking a shower with Emily, she suddenly felt the need to check on I.. She found both I. and father with their shorts down, but their underwear on. When confronted by mother, they both denied that anything was happening. Mother then left the hotel with Emily and Ruben; I. would not leave. Mother had father’s cell phone and discovered that he had a girlfriend. The next day, mother returned to the hotel. She and father had a heated argument and mother slapped father. Father called the police. Mother was arrested and the children were left with father. Mother later pled no contest to domestic violence.
A week later, I. disclosed to the “whole family, ” including the maternal grandparents and aunts, that father had sexually molested her several times, but she would not provide any further information. The following day, mother took I. to the hospital for an examination. I. revealed the sexual abuse, and both the police and the department were alerted. Father was arrested for felony lewd acts with a child under the age of 14, and has remained incarcerated. Because both father and mother had restraining orders against each other, Emily could not be released to mother and was placed in foster care; I. and Ruben were released to their biological father, who is not a party to this appeal.
During the social worker’s investigation, mother revealed that in January 2005, after she was required to stay late at work to take inventory, father became upset and punched her with his fists. She ended up with a black eye, which prevented her from returning to work for three days. In April 2009 mother confronted father after she saw him kick I.. Mother became upset and walked away with I. while carrying Emily. Father grabbed mother by the neck with one hand and took Emily with the other, and threatened to kill her, I. and Ruben if she ever took Emily from him. Mother was afraid that if she reported the incident to the police, father would hurt her or her children or take Emily away. Mother stated that in the evening of August 15, 2009, Ruben disclosed to her that father had punched him in his stomach because he was not cleaning up fast enough.
I. reported to the social worker that father began sexually abusing her when she was nine years old in the fourth grade. She stated that he massaged and fondled her breasts and vagina under her clothes at night and would sometimes just “stick his hand” in her pants, or put his fingers in her vagina. She stated that father was having sex with her, and when asked what she meant by “sex, ” I. responded “he put his penis in my vagina.” Father last had sex with her in mid July, 2009. He never used a condom. She did not report the abuse to anyone because she was afraid father would hurt her or her mother.
When asked what had happened in Las Vegas, I. said that she was sitting on one of the beds while mother and Emily were bathing and Ruben was in the lobby getting hot chocolate. Father approached her, pulled down his boxers and said, “It’s nice and hard.” He told her to pull down her shorts and underwear. After she pulled down her shorts, mother opened the bathroom door and father quickly pulled up his boxers. I. did not leave with mother because she was afraid father would “do something.” She only felt comfortable disclosing the sexual abuse once she knew mother was going to leave father. I. also corroborated mother’s statements that father had grabbed mother by the neck and had taken Emily away from her.
Ruben reported that he lives with his maternal grandparents, and that father has hit him many times when no one is around. He did not see what happened in the hotel room because he was down in the lobby, but I. told him that mother caught her and father with their pants down. I. also told him that after mother slapped father, he picked at his face and got it to bleed before the police arrived. At the detention hearing, the court ordered the children detained, and that father’s visits with Emily be monitored while mother’s visits could be unmonitored.
The department subsequently reported that Emily had been placed with a maternal aunt, while I. and Ruben remained with their father. The jurisdictional/dispositional report reveals that when I. was interviewed again in September 2009, she recounted several incidents of sexual abuse by father in greater detail, including the positions he forced her into. She also stated that at night father came into the bedroom she shared with Ruben, who had his own bed, and that he woke her up by touching her breasts. He then placed his fingers in her vagina and had sex with her while Ruben was asleep. She stated that she never wanted to see father again and that he deserved to be in jail. The department concluded that father’s sexual abuse of I. and his current incarceration for that abuse rendered him incapable of providing adequate care for Emily, and that placing Emily with father would put her at risk of future abuse and neglect.
The department’s dependency investigator spoke with Los Angeles Sheriff’s Department Detective Maribel Rizo of the Special Victims Bureau, who had interviewed both father and I.. Father denied having sex with I.. After taking a polygraph exam, which he failed, father began crying and recounted the following: Approximately six months earlier, when he, I. and Ruben were in the living room, Ruben commented that a skull on I.’s shirt looked weird. Ruben then left the room and I., who has “very large” breasts, approached father, pushed her breasts together and asked father if he wanted to touch them. Father put a hand on each breast for about five seconds and I. told him, “it feels good Dad.” He then immediately removed his hands, knowing what he did was wrong. Detective Rizo stated that the sexual abuse medical findings were normal. The attached medical report indicated that I.’s hymen was normal with no signs of trauma. Detective Rizo also advised that I.’s statements to her were consistent with the statements she made to the police officers at the hospital. A supplemental report from the Special Victims Bureau stated that I.’s account of what happened was consistent with what she previously told deputies. In both interviews, I. described seven separate incidents of sexual abuse by father over the past five years. In all incidents, except for the one in the Las Vegas hotel room, father fondled her breasts and vagina under her clothes, and digitally penetrated her before having intercourse with her.
I. testified in chambers at the jurisdictional/dispositional hearing, which commenced on December 1, 2009. She described different incidents of sexual abuse by father, including the first and last incidents, and testified that she was afraid to tell anyone about the abuse because she believed father would hurt her. She also testified that father tried to choke mother, pushed mother and yelled at mother. Both I. and Ruben also testified about the physical abuse father had inflicted on them.
During the hearing, on December 18, 2009 father’s attorney represented that she had just learned from father that a preliminary hearing had taken place a few days earlier in his criminal case, at which I. gave “contrary” testimony. His attorney requested a continuance to obtain the transcript of the preliminary hearing. The court denied the request, stating: “The reason it’s going to be denied, this is an [August] 19th, 2009 petition. It’s also being denied because the court is in the middle of an adjudication in this matter, and to continue it for another three weeks to a month so that-and it would probably be more like a month since this is the week before Christmas-is not in this child’s best interest. So in light of that-and it would also possibly require I. to once again be called to the witness stand.” The dependency investigator then testified that she had been informed by the criminal court that no hearings had taken place in father’s criminal case.
Following closing arguments, the court found all three children to be dependents of the court. The court struck from the petition allegations that father had repeatedly raped I. and digitally penetrated her “because there was no physical evidence where there should have been.” The court sustained the allegation that father repeatedly fondled I.’s vagina and breasts. The court found that father’s sexual abuse of I. “means that Emily would be at risk as she grows up and is left alone with her father.” The court ordered home-of-parents placement for I. and Ruben, and placed Emily with mother. Father was ordered to participate in parent education, individual counseling to address domestic violence and anger management, and a sexual abuse counseling program for perpetrators. This appeal followed.
In his opening appellate brief, father also challenged the juvenile court’s dispositional order removing Emily from his care. In his reply brief, he states “that at this time this issue is more properly addressed by this Court in case No. B226152, wherein he challenged the lower court’s exit orders.”
I. Standard of Review.
Challenges to a juvenile court’s jurisdictional findings are reviewed for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649; In re Clara B. (1993) 20 Cal.App.4th 988, 1000.) Substantial evidence is evidence that is “‘reasonable, credible and of solid value’” such that a reasonable trier of fact could make such findings. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) “We review the record to determine whether there is any substantial evidence, contradicted or not, which supports the court’s conclusions.” (In re Kristin H., supra, at p. 1649.) “‘All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’” (Ibid.) Issues of fact and credibility are questions for the trial court and it is not our function to redetermine them. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 195.) “‘“‘In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.’”’” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
II. Substantial Evidence Supports the Court’s Jurisdictional Findings.
The juvenile court found that it had jurisdiction over Emily under section 300, subdivisions (b), (d) and (j). Section 300, subdivision (b) provides that a child comes within the jurisdiction of the juvenile court and may be adjudged a dependent child of the court if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent’s failure or inability to adequately supervise or protect the child or inability to provide regular care for the child due to the parent’s substance abuse.
Section 300, subdivision (d) provides jurisdiction when “[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.”
Section 300, subdivision (j) provides jurisdiction when “[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 the 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, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
Father does not challenge the court’s jurisdictional findings that he physically abused I. and Ruben. Rather, he challenges only those findings that bring Emily within the court’s jurisdiction as a result of his actions-i.e., that he sexually abused Emily’s older half-sibling I. and that he engaged in domestic violence with mother-which place Emily at risk of harm. We are satisfied that substantial evidence supports the court’s jurisdictional findings as to Emily.
1. Sexual Abuse
Father admitted that he touched I.’s breasts and that he knew it was wrong to do so. But he argues there was no suggestion that he touched her breasts for sexual arousal or gratification. Section 300, subdivision (d) refers to Penal Code section 11165.1, which defines sexual assault as “[t]he 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....” (Pen. Code, § 11165.1, subd. (b)(4).)
As the department points out, even crediting father’s version of events-that I. pushed her “very large” breasts together and asked father to touch them and he did and that she told him it felt good-his conduct cannot be construed as part of “normal caretaker responsibilities.” The trial court could reasonably infer that father touched his minor stepdaughter’s breasts for “purposes of sexual arousal or gratification.” We agree with the department that father’s admission by itself is sufficient evidence to support the court’s jurisdictional finding that Emily was at risk of sexual abuse.
In In re P.A. (2006) 144 Cal.App.4th 1339, 1347, the court concluded that the father’s sexual abuse of his nine-year-old daughter placed her younger brothers, who were approaching the age at which their sister was abused, at risk of similar abuse. The court stated that “aberrant sexual behavior by a parent places the victim’s siblings who remain in the home at risk of aberrant sexual behavior.” (Id. at p. 1347.) The court in In re Andy G. (2010) 183 Cal.App.4th 1405, 1414 recently agreed with this statement in P.A. The Andy G. court noted that the only difference before it and P.A. was that the younger brother was only two and one-half years old at the time of the court’s orders, and that one of his half siblings was about 11 years old when the father began sexually abusing her. But the Andy G. court was unconcerned about the age difference, noting that other factors supported the court’s finding that the young brother was at substantial risk of sexual abuse, including that the father exposed himself to one of Andy’s half siblings in the same room as Andy, who was facing the other direction and too young to be cognizant of what was happening. (In re Andy G., supra, at p. 1414.) The Andy G. court nevertheless concluded, “This evinces, at best, a total lack of concern for whether Andy might observe his aberrant sexual behavior.” (Ibid.) Likewise here, father sexually abused I. while her younger brother Ruben was asleep in the same room. He also exposed himself to her while mother was in the same hotel room taking a shower.
In addition to father’s admission, a review of the record in its entirety discloses substantial evidence to support the juvenile court’s findings. While father spends much of his brief focusing on alleged inconsistencies between I.’s and mother’s versions of what occurred in Las Vegas and between I.’s own versions, our review demonstrates that their accounts were remarkably consistent. Indeed, a supplementary report of the Los Angeles Sheriff’s Special Victims Bureau observed that I.’s account was consistent with what she had previously told deputies. In In re P.A., supra, 144 Cal.App.4th at page 1344, the court rejected the father’s argument that inconsistencies in his nine-year-old daughter’s accounts of his sexual abuse precluded a finding that he had sexually abused her. The court noted that while her accounts varied in the details, they each related the same two incidents of abuse. (Ibid.) Father concludes that the record, “taken in its entirety, does not indicate indisputable evidence of I.’s sexual abuse by father.” The evidence does not have to be indisputable, only “substantial, ” which it clearly is here.
2. Domestic Violence
Father argues that because mother did not detail the domestic violence perpetrated by him in her declarations for a restraining order and because they each had mutual restraining orders and were planning to divorce, substantial evidence does not support the juvenile court’s finding that Emily was at risk of harm based on her parents’ domestic violence. We disagree.
Mother related, and the petition alleged, that father engaged in physical violence against her on at least two occasions: In 2005 when he punched her because she came home late from work, which caused a black eye and prevented her from returning to work for three days; and in April 2009 when he grabbed her neck and tried to choke her in front of I. and Emily, and threatened their lives. I. corroborated mother’s account of the 2009 incident.
“It is clear to this court that domestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) That father and mother had restraining orders against each other and were no longer living together does not dissuade us from concluding that the juvenile court’s finding was supported by substantial evidence. The incidents of physical violence inflicted by father were serious, causing significant damage and fear. Moreover, as the department notes, there was no showing that father understood that his violence and threats were dangerous to the children and put them at risk, or that his relationship with mother needed to be intact for the violence to occur. Even if we were wrong, “‘[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.’ [Citation.]” (In re Andy G., supra, 183 Cal.App.4th at p. 1415, fn. 6.)
III. No Abuse in Denial of Continuance.
Father contends that the juvenile court abused its discretion by denying his request for a continuance of the jurisdictional hearing so that he could obtain a copy of the transcript of I.’s testimony at the preliminary hearing. A denial of a motion for continuance is reviewed for abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810–811; In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
As father acknowledges, continuances are strongly disfavored in dependency cases. (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193–195.) Section 352 allows a continuance to be granted only upon a showing of good cause. Under the statute, mere convenience of the parties or pending criminal matters, by themselves, are not considered good cause. (§ 352, subd. (a); Renee S. v. Superior Court, supra, at p. 197, fn. 6.) Moreover, section 352, subdivision (b) provides that “[n]otwithstanding any other provision of law, ... no continuance shall be granted that would result in the dispositional hearing, ... being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance.”
Here, the petition was filed on August 19, 2009 and the detention hearing was held the same day. The combined jurisdictional/dispositional hearing did not commence until December 1, 2009, which was already well beyond the statutory 60 days since the children had been detained. But in claiming that the juvenile court erred by refusing to continue the proceedings again, father puts his own interest in presenting evidence ahead of the children’s best interest. I. had already testified and been interviewed many times about father’s horrific sexual abuse, and would most likely have to testify again if a preliminary hearing transcript were obtained. Her testimony and interview responses in the juvenile court were consistent. Additionally, father overlooks the fact that he had already confessed to touching her breasts, which was sufficient by itself to sustain the allegations of sexual abuse. Interestingly, the department’s social worker testified that according to the criminal court, no hearings had taken place in father’s criminal case. But even assuming that a preliminary hearing had taken place, we find no abuse of discretion in the juvenile court’s denial of father’s request for a continuance.
DISPOSITION
The juvenile court’s jurisdictional order is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.