Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Steven L. Berman, Juvenile Court Referee, Los Angeles County Super. Ct. No. CK66095
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
SUZUKAWA, J.
Alfonso B. (Father) is the father of Evangelina V., who was born in March 1989. Father appeals from an order entered March 12, 2007: 1) denying his motion to dismiss pursuant to Welfare and Institutions Code section 350, subdivision (c); 2) finding tat Father had physically and sexually abused Evangelina, and thus that she was within the court’s jurisdiction pursuant to section 300, subdivisions (a), (b), (d), and (i); 3) declaring Evangelina to be a dependent of the court; and 4) issuing custody, visitation, and reunification orders. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Father lived in Lynwood with Evangelina, his two other children, Jessica B. and Alfonso Jr., his sister Laura B., and her son James M.
Jessica and Alfonso have a different mother and are not the subjects of this appeal or the underlying dependency petition.
On June 14, 2006, the Department of Children and Family Services (Department) became aware that 17-year-old Evangelina had run away from home. Evangelina was interviewed by social worker Wendy Luke. Evangelina claimed Father had physically and sexually abused her, and said she did not want to return home. She accused Father of grabbing her around her neck and choking her. She also alleged that Father sexually abused her by giving her “massages.” He would lie on top of her and move his body around. Evangelina stated that conduct ceased approximately four years ago, when she realized her Father’s behavior was not appropriate. The Department placed her in a group home.
The following day, the social worker interviewed Father and Evangelina’s two siblings. Father denied choking Evangelina and touching her in a sexual manner. Alfonso Jr. and Jessica B. denied being hit or touched inappropriately by Father. Jessica told the social worker that Evangelina ran away because she did not want to follow the rules and was not allowed to have a boyfriend. Laura B. and James M. were also interviewed and denied that Father physically or sexually abused the children.
Father agreed to a voluntary plan of counseling, and Evangelina remained placed in a group home.
In December 2006, Evangelina ran away from the group home. When she was picked up two days later, she said she never wanted to return to Father’s home. She claimed that Father had previously pulled her hair, punched her arm, and called her derogatory names.
On December 19, 2006, the Department filed a petition pursuant to section 300, subdivisions (a), (b), (d), and (i), alleging that Father had physically and sexually abused Evangelina.
The Department’s reports revealed that the family had a previous history with the Department. In December 1997, a referral alleged that Father had threatened to kill his ex-wife (the mother of Jessica and Alfonso, Jr.) in her children’s presence. In June 2002, Evangelina had disclosed to a friend that Father beat her if she did not arrive home in time. The Department concluded the allegations were unfounded. There were also several prior referrals alleging Father was the perpetrator of emotional abuse in 1997 and 2000, which were also disposed of as unfounded. In December 1999, Father’s ex-wife filed a complaint alleging Father emotionally abused Evangelina and her. At that time, Evangelina told the investigator that she liked residing with Father and that Father took good care of her. Father also had a criminal history. In 1992, he was arrested for disturbing the peace after an argument with his ex-wife and ordered by the court to complete an anger management program. In 1995, he was arrested and convicted for inflicting corporal injury on a spouse.
In February 2007, the social worker, Candy Soto, interviewed Evangelina, who repeated her claims about the physical and sexual abuse, and again refused to return to Father’s home.
This was the third social worker assigned to the case.
Father did not make himself available to the Department for an interview, so the social worker recommended that the court sustain the allegations in the petition.
In another interview with Ms. Soto on February 28, 2007, Evangelina repeated her claims that Father would hit her with a closed fist on her arms and legs or pull her hair when disciplining her. She told Ms. Soto that when she was in the sixth grade, Father announced he was going to give her a massage. Father told her to lie on her stomach. Evangelina then felt her Father on top of her and he began moving his body up and down. This conduct continued until she was in the eighth grade. She protested loudly, and Father stopped his massages. She then stated that when she was in tenth grade, Father pulled up her shirt and fondled and suckled her breasts. She explained that she did not tell anyone about the sexual abuse because she had not previously trusted anyone. She said that conjoint counseling with Father would not help the situation.
A child abuse referral was submitted on behalf of Jessica and Alfonso Jr., and Father agreed to move out of the family house while the investigation was being conducted. The two younger children were never found to be at risk.
A supplemental report by the Department dated March 8, 2007, indicated that Father had been interviewed. He said he was a strict disciplinarian but denied the allegations of physical and sexual abuse.
At a hearing on March 8, 2007, the Department’s reports and records were admitted into evidence. Father moved to dismiss the dependency petition pursuant to section 350, arguing that Evangelina’s statements were inconsistent and insufficient to support the allegations in the petition. The court denied the motion to dismiss, stating, “There’s certainly evidence of all the allegations in the reports. That would be sufficient to sustain a petition by a preponderance.”
Several witnesses were then called to testify.
Evangelina testified that Father would punish her by hitting her and screaming at her. She described how he used to lie on top of her, fully clothed, for a few minutes, beginning in the sixth grade. Father’s self-described “massages” occurred on and off until she was in the eighth grade. She told a teacher in seventh grade that Father was hitting her. The Department came to investigate the allegations but found no bruises or marks. She said she told a friend in ninth grade that her father was hitting her. In tenth grade, she told the dean of students at her school that Father was hitting her. The dean told her to file a report with the school and the police came and questioned her. She said she did not tell the police about Father’s sexual conduct, but she wrote about the massages in a statement she gave to the dean. She never told anyone but Ms. Soto about the incident where Father pulled up her shirt and fondled her breasts. She started seeing therapist Cielo Santalargo when she first moved into a foster home and had seen her 10 to 15 times since then. After about three sessions, she told Santalargo about the sexual abuse.
Social worker Yvette Isbell testified that she took over the case after Wendy Luke. Isbell was responsible for filing the petition. Evangelina told her she did not want to return home because her father was going to physically and sexually abuse her. Isbell believed the allegations because Evangelina would become “shaky” every time she repeated the allegations.
Santalargo testified that she began one-on-one therapy sessions with Evangelina in September 2006. Evangelina reported sexual and physical abuse only in general terms but Santalargo found her to be truthful and consistent. Santalargo initially found Evangelina to be withdrawn and angry, but thought she currently had an excellent rapport with Evangelina.
Jessica B. testified that Evangelina would lie and get into trouble. Jessica never saw Evangelina being hit or sexually abused by Father.
Laura B., Father’s sister, testified that Evangelina lied and often got into trouble with Father, but she never saw Father hit her, pull her hair, or grab her by the neck. Evangelina missed school a lot and Laura knew Evangelina had a 24-year-old boyfriend.
In sustaining the allegations of the petition, the court stated: “There’s no doubt that the child has her rebellious aspect, but I don’t know that I’m getting a pretty fair picture of the child from the Father. . . . I did look at the history of the case, and it’s fairly interesting. . . . [I]n 1992 Father was ordered to take anger management [classes] because he was arrested for disturbing the peace because of the domestic violence incident. And on December 10, 1997, Father threatened to kill the Mother. There [were] further incidents. The mother was abusing the child[ren] by pulling their hair and beating them. There [were] allegations Father was beating the children. . . . There’s been domestic violence and violence in this family for years. This is not the peaceful family that Father or his sister depicted, and Father is not the peaceful man that he’s depicting. . . . What’s interesting is that Ms. Isbell did believe the minor. . . . There’s things in here that are obviously troubling. I can’t imagine a 17-year-old using words like ‘fondled’ and ‘suckled’. . . . What’s interesting is that every time the child did complain — and, again, the complaints have been going on for over 10 years — Father said it didn’t happen. The police said the child is just rebellious. The social worker didn’t buy it. They never believed the child. I watched the child testify. I saw the look on her face when she talked about the alleged sex abuse. I didn’t see acting. I saw a child who was clearly tearful, clearly remembering something that happened that she didn’t want to happen. Again, she may be the most rebellious girl in the world. She may be out fooling around with all the 24-year-olds in the world. That doesn’t mean that Father didn’t hit her. That doesn’t mean that Father didn’t take advantage of her sexually four or five years ago. . . . But, the minor’s description of the massages, of the rubbing, of the incident on the floor were absolutely consistent with what I read in the reports. The look on the minor’s face told me that they happened. I don’t have any doubt that these things happened years ago. . . . I don’t believe Jessica. I don’t believe that there was no violence going on in this house. The only concern I have is that the . . . inappropriate touching I think happened, but it hasn’t happened in four or five years, and there’s a question whether or not anybody else would be in danger. The incident with the breasts, I have a question about — the way it was described — whether or not it really happened. But, again, I saw the look on the girl’s face, and I see honesty and credibility in her face.”
DISCUSSION
I. The Department’s Motion to Dismiss the Appeal
On May 16, 2007, a few months after the juvenile court issued the orders which are the subject of this appeal, it terminated jurisdiction over Evangelina because she had turned 18. Father did not appeal that order.
We granted the Department’s request for judicial notice filed November 9, 2007.
The Department contends that because the termination order became final, Father’s appeal has been rendered moot and this court has no jurisdiction. Accordingly, the Department argues that this appeal should be dismissed.
“The fact that the dependency action has been dismissed should not preclude review of a significant basis for the assertion of jurisdiction where exercise of that jurisdiction has resulted in orders which continue to adversely affect appellant.” (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.) Thus, we must evaluate the effect of the juvenile court order on future proceedings that may involve Father. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1193.)
It is entirely possible that this family may again come under the purview of the Department, since Father has two younger children living with him and the family has been the subject of numerous referrals. The outcome of this case could affect how a court may view a future case brought by the Department. Thus, even though Evangelina has turned 18, we conclude this appeal is not moot and deny the Department’s motion to dismiss.
II. Denial of Father’s Motion to Dismiss
Father contends the court erred in denying his motion to dismiss the petition pursuant to section 350. Section 350, subdivision (c) provides in pertinent part: “At any hearing in which the probation department bears the burden of proof, after the presentation of evidence on behalf of the probation department and the minor has been closed, the court, on motion of the minor, parent, or guardian, or on its own motion, shall order whatever action the law requires of it if the court, upon weighing all of the evidence then before it, finds that the burden of proof has not been met. That action includes, but is not limited to, the dismissal of the petition and release of the minor at a jurisdictional hearing . . . .”
Father contends that the court did not weigh the evidence as required, and in particular, did not consider the inconsistent statements of Evangelina. He argues the court’s ruling, in effect, shifted the burden of proof and forced him to prove his innocence.
“Section 350(c), the equivalent of a motion for nonsuit, allows a parent to test the sufficiency of the Agency’s evidence before presenting his or her case.” (In re Eric H. (1997) 54 Cal.App.4th 955, 968-969.) In ruling on a nonsuit motion, the court accepts the evidence most favorable to the plaintiff as true and disregards the conflicting evidence. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214.)
Here, the motion was made before any witnesses were presented and the only evidence before the court was the Department’s reports. The Department had not yet presented its entire case. Father’s motion was premature. The court appropriately denied Father’s motion to dismiss at this point in the proceedings, and correctly proceeded to hear testimony from the Department’s witnesses.
III. Failure to Investigate
Section 329 provides in pertinent part: “Whenever any person applies to the social worker to commence proceedings in the juvenile court, . . . [t]he social worker shall immediately investigate as he or she deems necessary to determine whether proceedings in the juvenile court should be commenced.”
Father contends that the Department did not comply with this section because social worker Isbell failed to interview any person at Father’s home in an effort to determine if Evangelina’s allegations were true or not. He argues Isbell merely relied on the investigation conducted by Wendy Luke.
Father ignores the fact that Luke interviewed everyone who lived in Father’s home. He cannot point to any evidence that a second interview would have uncovered. For that reason, a second series of interviews would have proved meaningless. The Department is not required to engage in idle acts.
Finally, there is no requirement that the social worker who investigates the matter must be the one who prepares the petition for filing. (See In re Ashley M. (2003) 114 Cal.App.4th 1, 8.)
IV. Due Process
Father contends he was denied due process because Evangelina belatedly made the claim that he fondled and sucked her breasts. He asserts an amended petition should have been filed, and the Department should have investigated the new allegation. Father urges this failure was exacerbated by the court’s decision to not allow Isbell to testify whether she believed Evangelina’s latest claim.
This claim has no merit. Father was given notice of the substance of Evangelina’s physical and sexual abuse claims well in advance of the hearing. He was given ample opportunity to cross-examine Evangelina, Santalargo, and Isbell concerning Evangelina’s allegations. Assuming Father was entitled to more notice with regard to the allegation that he fondled Evangelina’s breasts, ultimately, the court expressed doubt whether the incident occurred. It sustained the petition based upon the allegations of physical abuse and the prior acts of sexual abuse that Father had known about for months. We find no due process violation.
V. Sufficiency of the Evidence
Father contends there was insufficient evidence that he physically or sexually abused Evangelina to sustain the findings under section 300, subdivisions (a), (b), (d), and (i). We disagree.
“It is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
The juvenile court was entitled to find Evangelina, the social worker, and the therapist credible and to conclude that the allegations were true. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427; In re Casey D., supra, 70 Cal.App.4th at p. 53.) The court’s firsthand observations of Evangelina’s demeanor were critical to its determination of her credibility and we cannot reweigh the evidentiary value of those observations. (Ibid.)
With respect to Father’s contention that there was nothing to support the findings of cruelty under section 300, subdivision (i), the juvenile court found that he hit, choked, punched, belittled, and sexually abused Evangelina. Those misdeeds certainly support a finding of cruelty.
Father also makes much of the fact that the Department’s case history log reveals that Evangelina at one point stated that Father did not sexually abuse her. At the hearing, the Department’s counsel told the court that the statement was not made to social worker Isbell, although it appeared in the report which she prepared. This statement alone does not mean that the evidence is insufficient. According to all reports, Evangelina was not immediately forthcoming about the sexual abuse and did not tell many people about it. The juvenile court was entitled to find that the prior inconsistent statement was outweighed by the contrary testimony at the hearing.
DISPOSITION
The March 12, 2007 orders of the juvenile court are affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.