Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK68773, Jacqueline Lewis, Referee. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant Joseph M.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant Vanessa D.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Joseph M. (father) appeals an August 30, 2007 order of the juvenile court following a jurisdictional/dispositional hearing. Father challenges the sufficiency of the evidence to support the juvenile court’s jurisdictional finding that he sexually abused his daughter, Kaylie. Father also challenges the court’s visitation order, which provides father “is to have no contact with Kaylie until conjoint counseling has begun.”
In a dependency proceeding, the dispositional order is the judgment (In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703) and is the first appealable order in the dependency process. (In re Dolly D. (1995) 41 Cal.App.4th 440, 444, fn. 1.)
Vanessa D. (mother) also appeals the dispositional order, insofar as the juvenile court issued a restraining order in favor of father against mother.
With respect to father’s appeal, we conclude substantial evidence supports the challenged jurisdictional finding of sexual abuse. As for the visitation order, father’s appeal is moot because the August 30, 2007 visitation order has been superseded by a subsequent visitation order made on October 9, 2007.
With respect to mother’s appeal, we uphold the restraining order, finding no abuse of discretion in the trial court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the Department’s attention on June 10, 2007, when it received a referral alleging father had been in jail for five days for domestic violence against mother, the electricity to the house had been turned off for at least two days, there was no food in the house, mother was too irresponsible to buy food for the children, and the house was filthy and unsafe for the children, namely, seven-year-old Kaylie and her three-year-old brother.
Although Kaylie’s brother was also declared a dependent by the juvenile court, the challenged orders in this appeal do not relate to him.
A June 11, 2007 incident report by the Sheriff’s Department stated, inter alia, “when [Kaylie] was sleeping the night before her father was arrested, he had been drinking and touched her over her clothing in her ‘pee pee.’ ” Kaylie indicated this had happened before, “she told him no and ran away but was too afraid to tell her mother . . . because she didn’t want her father to hit her mother.”
The Department filed a dependency petition on June 14, 2007, alleging the children were at risk of physical and emotional harm because of domestic violence between the parents, father’s drug and alcohol abuse, father’s physical abuse of the son, father’s sexual abuse of Kaylie, and the filthy and unsafe home.
At the detention hearing, the juvenile court ordered the minors detained and placed with any appropriate relative or nonrelative extended family member. The court appointed Dr. Alfredo Crespo to conduct an Evidence Code section 730 evaluation of the parents and Kaylie. Dr. Crespo met with Kaylie on June 29, 2007.
a. Kaylie’s statements to Dr. Crespo regarding sexual abuse.
When asked if father ever did something to her that she did not like, Kaylie said father touched her and hit her a lot. When asked how father touched her, Kaylie explained that he “touches me like, rubbing me.” She demonstrated by rubbing her thigh and pointing to her vaginal area. She said father touched her that way on her “penis.” When Dr. Crespo corrected her, she smiled and said father just one time rubbed her “pee pee.” She estimated she was six years old at the time of that incident, which occurred while mother was not at home. She explained she did not tell mother of the abuse because father told her he would kill mother if she told mother. When asked why she decided to disclose what her father did, Kaylie stated she told mother when father was in jail. She also remembered telling the social worker about the sexual abuse and remarked that she had not told the social worker everything because the social worker did not have that much paper to write on.
When told father had denied ever touching her inappropriately, Kaylie stated “[s]ometimes he lies to the, like, the cops, and to the Social Worker, so he could get custody of me and my brother.”
Kaylie told Dr. Crespo she had bad dreams because of the sexual abuse. She also had nightmares that father would obtain custody of her.
Kaylie explained her worries consisted of “the touching the pee-pee, my Dad hitting my Mom, and that’s it.” She told Dr. Crespo to tell the court about “all this stuff about my dad.”
In his report, Dr. Crespo opined, inter alia: “Kaylie’s allegations of sexual abuse against her father impressed me as especially rehearsed and devoid of the strong, negative affect usually exhibited by true victims of sexual abuse. While Kaylie attributed to her father the role of perpetrator vis-à-vis the history of [domestic violence] in the parents’ union, her statements mainly suggested she witnessed the conflicts and violence between her parents. She has been triangulated into her parents’ conflicted relationship and, consequently, her biased report does not assist much to clarify whether it is the mother or the father that exhibited a clear pattern of initiating the violence to which she was exposed in their care.”
b. The amended petition.
On July 9, 2007, the Department filed a first amended petition which included allegations that father sexually abused Kaylie by fondling her genital area and by asking her to put his penis inside her mouth.
c. Forensic interview of Kaylie.
On July 18, 2007, Kaylie underwent a forensic interview. Kaylie was able to distinguish between truth and a lie, and between a good touch and a bad touch. Kaylie said that father touched her “pee-pee” when mother went to the store to buy groceries. The last time this occurred was the night before mother called the police. She stated “he started rubbing my ‘pee-pee.’. . . He used his hand, fingers and touched the middle part, he went inside my pee-pee.’ ” According to the interviewer, “Kaylie[’s] story was consistent.” She stated she was not wearing clothes, and father had clothes on. She stated “father tried to put his ‘pee-pee’ inside her mouth after he finished rubbing her body.”
d. Adjudication hearing.
The juvenile court commenced the adjudication hearing on August 29, 2007. The court admitted in evidence the Department’s reports and the report from Dr. Crespo.
Father’s attorney called Kaylie, age seven, as a witness. The juvenile court qualified Kaylie to testify. It established Kaylie’s ability to distinguish between the truth and a lie, and that Kaylie understood that someone who tells a lie can get into trouble. Kaylie testified as follows:
When she was living with her family, mother never left her home alone with father. Nobody ever told her to say bad things about father. Father touched her “pee-pee” and made her feel uncomfortable. This occurred while mother was at home, but mother was putting away the laundry and couldn’t see what was happening. She was seven years old when father started touching her. Father did not touch her over her clothes. He touched her inside her “pee pee.” He touched her on two occasions. The touching occurred on the weekend, during the daytime, in the living room. She did not remember the last time father touched her. Kaylie recalled telling the police officer that father touched her. Kaylie stated she did not tell the police officer that father touched her over her clothes. She has never seen father’s “pee-pee.” However, Kaylie also testified that father made her put his “pee-pee” in her mouth. The first time father touched her she had her clothes on. The second time, he touched her inside her “pee-pee,” under her clothes.
The Department’s counsel commented that Kaylie was “very, very credible.” Kaylie’s attorney opined Kaylie’s testimony was “very compelling. This is a mature seven-year-old.” Mother’s attorney joined with Kaylie’s attorney and county counsel in finding Kaylie’s testimony “to be unusually credible.” Father’s attorney asserted Kaylie was not credible, “because Kaylie’s statements have been very, very inconsistent, from the detention report to incident reports to police reports to jurisdiction reports and yesterday’s testimony her stories change.”
e. Juvenile court’s ruling.
The juvenile court amended and sustained the petition. The court found Kaylie and her brother were minors as described in Welfare and Institutions Code section 300, subdivisions (a), (b), (d) and (j). The court found, inter alia, father had “sexually abused the child Kaylie by fondling the child’s genital area and by asking the child to put his penis inside her mouth.”
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
The juvenile court declared the minors dependent children of the court and ordered custody taken from the parents and placed in the care of the Department for suitable placement with the maternal grandmother.
The juvenile court ordered family reunification services, that mother’s visitation would be monitored, that father’s visitation with the brother would be monitored, and that “father is to have no contact with Kaylie until conjoint counseling has begun.”
The court also issued mutual restraining orders against mother and father for a period of three years.
Both parents filed timely notices of appeal from the August 30, 2007 dispositional order.
CONTENTIONS
Father contends: insufficient evidence supports the juvenile court’s jurisdictional finding that he sexually abused Kaylie; and the trial court erred in delegating to a seven-year-old child whether visitation would occur.
Mother challenges the sufficiency of the evidence to support the restraining order against her.
DISCUSSION
1. Substantial evidence supports juvenile court’s jurisdictional finding that father sexually abused Kaylie.
a. Father does not challenge any jurisdictional findings other than counts d-1 and j-1 relating to father’s sexual abuse of Kaylie.
As a preliminary matter, father has forfeited any challenge to the jurisdictional findings other than those relating to sexual abuse.
The juvenile court sustained the petition as against father under section 300, subdivisions (a), (b), (d) and (j), for his role in the domestic violence, for physically abusing the children, his substance abuse problem, maintaining a hazardous and unsafe home environment, and sexually abusing Kaylie. However, father’s appellate challenge to the sufficiency of the evidence is limited to the evidence supporting the allegations of sexual abuse, specifically, counts d-1 and j-1.
“Section 300, subdivisions (a) through (j), establishes several bases for dependency jurisdiction, any one of which is sufficient to establish jurisdiction.” (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045, italics added.) Because a single count is sufficient to uphold the juvenile court’s jurisdictional order and father has not challenged the evidence relating to the other counts, the jurisdictional order must be affirmed irrespective of the sufficiency of the evidence relating to sexual abuse.
We now turn to father’s challenge to the juvenile court’s finding that he sexually abused Kaylie.
b. Father’s reliance on case law relating to the child dependency exception to the hearsay rule is misplaced because Kaylie was found to be competent and testified at the adjudication hearing.
Father cites In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.) in support of his argument that because Kaylie’s testimony about sexual abuse was inconsistent with her out of court statements, her testimony is not sufficiently reliable to constitute substantial evidence to support the jurisdictional finding of sexual abuse. The contention fails.
In re Cindy L. (1997) 17 Cal.4th 15 (Cindy L.), recognized a child dependency exception to the hearsay rule, providing that the out-of-court statements of children who are subject to juvenile dependency hearings pursuant to section 300 may be admitted in that proceeding if the statements show particular indicia of reliability, if the statements are corroborated, and if interested parties have notice that the statements will be used. (Cindy L., supra, 17 Cal.4th at p. 29.)
Thereafter, Lucero L. “consider[ed] whether the hearsay statements contained in a social study of a minor who is the subject of a section 300 hearing, and who is deemed to be incompetent as a witness because of an inability at the time of testimony to understand the obligation to tell the truth and/or to distinguish between truth and falsehood, may be admitted and relied on under section 355, if such statements fail to measure up to the standards of reliability prescribed in Cindy L. [¶] [Lucero L.] conclude[d] that such statements may be admitted, but may not be relied on solely as a basis for a jurisdictional finding unless the court finds that they show special indicia of reliability.” (Lucero L., supra, 22 Cal.4th at p. 1231.) Factors that are relevant to the reliability of hearsay statements made by child witnesses in sexual abuse cases are: “ ‘(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate.’ ” (Id. at p. 1239.)
In the instant case, Kaylie was found to be competent to testify at the adjudication hearing, the juvenile court having determined Kaylie was able to distinguish between truth and a lie. Kaylie then was cross-examined by father’s attorney. Because Kaylie was found to be competent and testified at the adjudication hearing, father’s reliance on Lucero L., relating to the admissibility and reliability of hearsay statements when a minor is incompetent to testify, is misplaced.
On appeal, father does not attack the juvenile court’s determination that Kaylie was competent to testify.
c. Substantial evidence supports the juvenile court’s jurisdictional finding that father sexually abused Kaylie.
(1) Standard of appellate review.
In In re Rubisela E. (2000) 85 Cal.App.4th 177, where a father contended there was insufficient evidentiary support for the juvenile court’s conclusion the minor had been abused, the appellate court stated the usual rule: “ ‘[T]he appropriate standard of review is for this court to determine whether the trial court’s order was supported by substantial evidence. Substantial evidence is evidence that is ‘reasonable, credible, and of solid value’; such that a reasonable trier of fact could make such findings. [Citation.] [¶] It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has 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. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. . . .’ ” (Id. at pp. 194-195.)
(2) Kaylie’s testimony provides substantial evidentiary support for trial court’s finding of sexual abuse.
We recognize that Dr. Crespo opined “Kaylie’s allegations of sexual abuse against her father impressed me as especially rehearsed and devoid of the strong, negative affect usually exhibited by true victims of sexual abuse.”
We are also mindful that Kaylie’s testimony at the hearing was somewhat inconsistent with her earlier statements. For example, Kaylie told Dr. Crespo that father rubbed her “pee pee” just one time; at the hearing, she testified father touched her twice. At the forensic interview, Kaylie stated father touched her “pee-pee” when mother went to the store to buy groceries; later, Kaylie testified father touched her while mother was at home and putting away the laundry. Also, Kaylie testified she had never seen father’s “pee-pee,” but she also testified that father made her put his “pee-pee” in her mouth. However, these inconsistencies merely go to the weight of the evidence and do not render Kaylie’s testimony inherently incredible.
In In re Rubisela E., supra, 85 Cal.App.4th 177, wherein a father challenged the sufficiency of the evidence to support the juvenile court’s finding of abuse, the appellate court stated: “The juvenile court observed Rubisela and her parents. As is often the case, her testimony and the various reports given to investigators contained inconsistencies. Nevertheless, although the exact circumstances surrounding the event may have differed in the retelling, the essence of the offense, that her Father asked her to orally copulate him in the middle of the night, did not change.” (Id. at p. 195, italics added.)
That is the case here. Although the precise circumstances surrounding the events may have differed in the telling, the essence of Kaylie’s story remained the same – father fondled her genital area and sought to orally copulate her. The juvenile court found Kaylie to be credible and that determination is entitled to deference by this court. We conclude substantial evidence supports the juvenile court’s determination that father sexually abused Kaylie.
2. Father’s appeal is moot to the extent it challenges the August 30, 2007 no-contact order as to Kaylie.
In the August 30, 2007 dispositional order, the juvenile court ruled “father is to have no contact with Kaylie until conjoint counseling has begun.” Father challenges that ruling on appeal, contending the juvenile court in effect delegated to a seven-year-old child whether visits would occur. It is unnecessary to address this contention because it has been overtaken by subsequent events.
On October 9, 2007, the juvenile court modified the visitation order to provide: “Visitation for father with Kaylie is suspended.”
Pursuant to a request by county counsel, we take judicial notice of the October 9, 2007 order.
On January 8, 2008, the Department filed a motion to dismiss as moot father’s appeal to the extent it challenges the August 30, 2007 order that he have no contact with Kaylie. Father has not filed any opposition to the motion for partial dismissal of his appeal.
It is unnecessary to address father’s contentions relating to the visitation provision in the August 30, 2007 dispositional order because said visitation order has been superseded by the October 9, 2007 order. Accordingly, the Department’s motion for partial dismissal of father’s appeal is denied as moot.
3. Trial court acted within its discretion in issuing restraining order against mother.
As indicated, the juvenile court issued mutual restraining orders against father and mother. Mother’s sole contention is that the juvenile court abused its discretion in granting father’s restraining order against her. The contention does not detain us.
Mother asserts “the juvenile court’s basis for granting father’s restraining order was the mother’s admission to the maternal grandmother during a telephone conversation that she (Mother) had attempted to stab the father with a knife.” Mother asserts this was an insufficient basis for the restraining order. Mother argues that notwithstanding her attempt to stab father, and notwithstanding father’s allegation that “mother was the aggressor during their domestic violence encounters, there was no reason to believe that physical or emotional harm would otherwise result to the father or the children, who were not residing with the father.”
Mother’s contention is without merit. In sustaining the petition, the juvenile court found mother and father “have a seven year history of engaging in violent physical altercations in the children’s presence.” On this record, the juvenile court acted within its discretion in issuing mutual restraining orders against parents to protect both parents as well as to protect the minors.
DISPOSITION
The August 30, 2007 dispositional order is affirmed in all respects, including the mutual restraining order against mother and father. The Department’s request for judicial notice of the October 9, 2007 order suspending father’s visitation with Kaylie is hereby granted; however, the Department’s motion for partial dismissal of father’s appeal is denied as moot.
We concur: CROSKEY, J., KITCHING, J.