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In re Kevin H.

California Court of Appeals, Second District, Fifth Division
Jul 16, 2008
No. B204894 (Cal. Ct. App. Jul. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County, No. CK70015, Sherri Sobel, Referee.

Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Senior Deputy Counsel County, for Petitioner and Respondent.


MOSK, J.

INTRODUCTION

The juvenile court sustained a petition filed under Welfare and Institutions Code section 300 finding, inter alia, that Ceasar H. (father) had sexually and physically abused his step-daughter, Lucero L., physically abused his son, Kevin H, and engaged in an act of domestic violence against the children’s mother, Patricia G. (mother). The juvenile court found Kevin to be a dependent of the court, removed him from father, placed him with mother, ordered reunification services for father, and ordered that father was to have monitored visitation.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Father appeals the juvenile court’s jurisdictional and disposition orders on the grounds that there was insufficient evidence to support the juvenile court’s findings that he sexually and physically abused Lucero and engaged in an act of domestic violence against mother. Father also contends that the Department of Children and Family Services (DCFS) failed to facilitate court-ordered visitation with Kevin and therefore that there was insufficient evidence to support the finding that father had received reasonable services. Finally, father contends that the juvenile court exceeded its jurisdiction when it ordered that a professional outside DCFS must monitor father’s visits with Kevin.

We hold that there is substantial evidence in the record to support the juvenile court’s findings that father sexually and physically abused Lucero and engaged in an act of domestic violence against mother. We further hold that father’s contention concerning the alleged failure of DCFS to facilitate visitation is moot and that father has forfeited his challenge to the juvenile court’s order requiring a professional monitor. We therefore affirm the orders of the juvenile court from which father appeals.

FACTUAL BACKGROUND

Prior to November 2006, Kevin H. resided with father, mother, and his half-siblings, Lucero and Miguel L. The family came to the attention of DCFS on September 7, 2007, based on a report that father had sexually abused Kevin (then age 4) and Lucero (then age 9). The children’s social worker (CSW) initially assigned to the case interviewed mother, Lucero, and Miguel (then age 15), but was unable to interview Kevin or father. Father was subsequently interviewed by telephone that same day by a Spanish-speaking CSW, and denied the allegations of sexual abuse of either child.

Lucero and Miguel are mother’s children, but each has a different father.

On September 15, 2007, another CSW interviewed mother and the three children. Mother informed the CSW that she had separated from father in November 2006 because he was “controlling and somewhat verbally abusive.” Mother recounted an incident in August 2007, during which father “kicked and broke the door frame” at the family’s home after he learned that mother was going dancing with friends.

Regarding the allegations of sexual abuse, mother told the CSW that on September 6, 2007, she had bathed Kevin and was dressing him when he “suddenly went down towards mother’s vagina and motioned as if [he was] going to kiss mother there.” Mother questioned Kevin about his actions and asked whether anyone had inappropriately touched his private parts. Kevin responded that father “bit [his] penis and it hurt.” But Kevin was unable to articulate when, where, or how the incident occurred because of his young age.

Mother further reported that while mother was speaking to Kevin regarding the incident with father, Lucero came into the room, and mother also spoke to her about inappropriate touching. Lucero began to cry and then told mother that father “put his penis in [Lucero’s] vagina.” When mother asked Lucero why she had not told mother about father’s conduct before, Lucero stated that she was afraid mother would not believe her and would blame the conduct on her. After further questioning by mother, Lucero disclosed that father “had put his penis in her vagina ‘about three or four times.’” Mother informed the CSW that the abuse most likely occurred approximately three years prior while mother worked the early shift at “Jim’s Burgers” and father cared for the children.

The CSW also interviewed the children. Kevin told the CSW that his “dad bit [him]. He bit [him] hard. He bit [him] here (pointing towards his penis). It hurt.” The CSW questioned Kevin further, but he had difficulty answering. He could not tell the CSW how many times, when, or where father had engaged in the inappropriate behavior.

Lucero told the CSW that her “little brother’s father did things to [her] when [they] used to live with him. He used to try to have sex with [her]. It happened in the morning . . . when [her] mom went to work. It was a long time ago. He did it . . . three or four times[;] . . . he put his penis in [her] vagina. [She] didn’t want him to get near [her]. [She] didn’t want him to touch [her]. [She] was scared to tell [her] mom about what happened . . . about what [father] did to [her]. [She] thought [her] mom was going to be mad at her. [She] thought [her] mom was going to think it was [her] fault . . . .” Lucero stated that she did not feel any pain when father abused her, stating, “It didn’t hurt. I only felt like tickles down there.” Lucero also told the CSW that father “hit her with a stick after she resisted the abuse.”

Miguel told the CSW that he did not know of or suspect any type of inappropriate behavior by father towards either Kevin or Lucero. He did recall that when the children lived with father, he heard Lucero tell father, “Stop, your hurting me”; but Miguel thought Lucero was crying because father was brushing her hair to get her ready for school.

Father spoke to the CSW on September 17, 2007, and denied abusing either Kevin or Lucero. According to father, the “children [were] being manipulated by their mother. She [was] manipulating them to say [that father had abused them].” Father also denied kicking the door to the family home in August 2007, stating that mother “pushed [him] and [he] tripped on [his] sandal and fell back into the door.”

Kevin and Lucero were physically examined on September 13, 2007, for signs of sexual abuse. The report of Kevin’s exam noted “normal genital-anal exam” and Lucero’s report similarly noted, “normal genital/anal exam. No trauma noted.” Under the heading “Findings and Interpretations,” however, the nurse-practitioner who performed Lucero’s exam checked the following three boxes: “1. Anal-Genital Findings: Normal anal-genital exam [¶] 2. Assessment of Anal-Genital Findings: Consistent with history [¶] 3. Interpretation of Anal-Genital Findings: Normal exam can neither confirm nor negate sexual abuse [¶] . . . [¶]” The report on Lucero’s exam also included a description of father’s abusive conduct with her that was consistent with the account she provided to the CSWs.

On October 15, 2007, a different CSW interviewed all three children at their babysitter’s house. Kevin gave the CSW his name but refused to speak to her further.

Lucero told the CSW that father had put his penis in her vagina. She said he did it four times. “The first time [she] was in the first grade. It was a Monday. It happened before school at six in the morning. [Her] mom went to work early and [her] little brother Kevin was home. Miguel was in New York visiting his dad.” Lucero also reported to the CSW that father would hit her with tree branches, and that, on one occasion, he broke the door because “[her] mom was going to a party with friends.”

Miguel told the CSW that father would hit Lucero with tree branches when she disobeyed him. He saw father hit her more than 10 times. He confirmed that father “[k]icked open the door” after father and mother had argued about mother going to a dance with an ex-neighbor.

Miguel also reported to the CSW that he never saw father touch Lucero and that Lucero never told him anything about father touching her. But he reported that when he was in the fifth grade, he would hear Lucero tell father “Stop it hurts.” Then father would ask Lucero why she was crying and tell her to stop crying.

At the adjudication hearing, Lucero testified about father’s sexual abuse and about the occasions on which he hit her with a tree branch. She testified that father “tried to have sex with [her].” She explained that when she was sleeping and mother went to work early, father turned her over, pulled down her underpants, and “put his middle part in [hers].” She clarified that his “middle part” was his “penis” and her “middle part” was her vagina. She also confirmed that the abuse occurred when she was six or seven years old and that it took place in one week, from Monday through Friday. She estimated that the sexual abuse lasted longer than five minutes, but less than 10 minutes, during which time father would put his penis in her vagina. Lucero stated that the abuse occurred in her parents’ room. She explained that she did not tell her mother about the abuse at the time because she was scared.

Lucero also testified that father hit her with a stick and caused bruises on her bottom and back. She then described how she attempted to avoid the abuse: when father was in the shower, she would use a chair to “reach high to get the stick and break it apart and then throw it in the trash.”

The children’s babysitter, Adela A., testified that Lucero told her about father’s sexual abuse. According to Adela, Lucero was watching a television commercial depicting a couple lying on a bed and commented that the couple was going to have sex. When Adela questioned Lucero about her comment, Lucero responded, “That’s just how you do it.” Adela then asked Lucero if someone had raped her, and Lucero responded in the affirmative. Adela asked Lucero who raped her, and Lucero responded that father had.

Mother testified that she had never seen father hit Lucero with a tree branch, but that Lucero had told her that father had hit her. Mother also confirmed that in August 2007, father threatened her and kicked the door.

Because Kevin was unable to qualify as a witness, the juvenile court admitted his prior statements about father’s abuse under section 355. Miguel then testified that Kevin told him that father bit Kevin’s penis.

PROCEDURAL BACKGROUND

The adjudication hearing took place on December 7 and 17, 2007. After hearing argument from counsel, the juvenile court noted that Lucero was “articulate” and “clear.” The juvenile court then observed, “In terms of consistency, [Lucero] varied a little bit but she was very consistent [as to] what happened and how it happened. [¶] Were her allegations sparse and vague? My God, no. She was just a terrific witness. She really was.”

Based on the evidence, the juvenile court dismissed Miguel from the petition and then sustained the petition as to Kevin and Lucero, with amendments. The juvenile court struck the allegations of forcible rape as to Lucero and amended the petition to read “sexual abuse.” As to the allegations of father’s misconduct with Kevin, the juvenile court found insufficient evidence that father’s conduct was sexual in nature, but sustained the petition under section 300, subdivision (b), finding that father bit Kevin causing pain. The juvenile court amended and sustained the allegation concerning the physical altercation between father and mother in August 2007, finding that father engaged in the altercation and that such conduct endangered the children’s physical and emotional health and safety. The juvenile court also sustained the allegation concerning father striking Lucero with a stick, finding that such physical abuse endangered the children’s physical and emotional health and safety.

The juvenile court declared Kevin a dependent of the court pursuant to section 300, subdivision (a) and removed him from father’s custody and care. The juvenile court ordered that Kevin should remain placed with mother. The juvenile court also found that “reasonable services have been provided to meet the needs of the minor(s),” and ordered continued reunification services for father. Father was granted visitation rights with Kevin three times a week with a monitor approved by DCFS.

Father filed a timely appeal from the jurisdictional and disposition orders made at the adjudication hearing.

DISCUSSION

A. Standard of Review

“When the sufficiency of the evidence to support a juvenile court’s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393 [32 Cal.Rptr.3d 526]; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 [42 Cal.Rptr.3d 504] [‘a court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence’].) Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Tania S. (1992) 5 Cal.App.4th 728, 733–734 [7 Cal.Rptr.2d 60].) We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547 [247 Cal.Rptr. 784]; In re John V. (1992) 5 Cal.App.4th 1201, 1212 [7 Cal.Rptr.2d 629]; In re Eric B. (1987) 189 Cal.App.3d 996, 1004–1005 [235 Cal.Rptr. 22].) [¶] However, substantial evidence is not synonymous with any evidence. (In re Savannah M., supra, 131 Cal.App.4th at p. 1393.) ‘A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” [Citation.]’ (Id. at pp. 1393–1394; accord, In re David M. (2005) 134 Cal.App.4th 822, 828 [36 Cal.Rptr.3d 411].)” (In re Albert T. (2006) 144 Cal.App.4th 207, 216-217.)

B. There Was Substantial Evidence that Father Sexually and Physically Abused Lucero

The juvenile court sustained, inter alia, Count d-2 of the petition which alleged that father sexually abused Lucero in violation of section 300, subdivision (d). That subdivision provides: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶ . . . [¶] (d) 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).)

As to the juvenile court’s finding of sexual abuse of Lucero, father argues that there is insufficient evidence that he engaged in any sexually abusive conduct. Relying on what he characterizes as inconsistencies in Lucero’s various accounts of the abuse and the normal results of her physical examination, father contends that the juvenile court could not reasonably have concluded that he engaged in the conduct described by Lucero.

That there may have been inconsistencies in Lucero’s accounts is not dispositive. Even assuming, arguendo, that Lucero gave inconsistent statements about the details of the abuse, it was the function of the juvenile court to reconcile those inconsistencies, and, on that issue, the juvenile court found that although Lucero’s accounts of the abuse “varied a little,” overall she had been “very consistent” in her accounts. Moreover, on appeal, we must resolve all evidentiary conflicts in favor of the juvenile court’s determinations. Similarly, we must defer to the juvenile court’s credibility determinations which, in this case, accepted Lucero’s account. The record reflects that the juvenile court found Lucero to be a credible and reliable witness, findings that we must accept on appeal. Therefore, based on Lucero’s testimony at the adjudication hearing and her prior accounts of the abuse to the various social workers who interviewed her and the nurse who examined her, the trial court reasonably concluded that father had sexually abused Lucero.

Father’s reliance on the results of Lucero’s physical examination is misplaced. Although the results of Lucero’s exam were “normal,” the nurse who performed the exam concluded that she could neither confirm nor negate the allegations of abuse based on those results. Therefore, it was reasonable for the juvenile court to deem the exam inconclusive and to accord it little, if any, weight.

The juvenile court also sustained Count a-1 of the petition which alleged that father struck Lucero with tree branches and that such physical abuse endangered Lucero’s physical and emotional health and safety in violation of section 300, subdivision (a). That subdivision provides in pertinent part: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶ . . . ¶] (a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian.” (§ 300, subd. (a).)

As he did with the juvenile court’s finding that he sexually abused Lucero, father contends that there is insufficient evidence that he physically abused Lucero. But Lucero―whom the juvenile court found to be a “terrific” witness―reported and testified that father hit her across the bottom and back with a tree branch, and she included a detailed description of how she tried to avoid the abuse by climbing on a chair and retrieving the branch from where father kept it so she could break it and throw it in the trash. The juvenile court found that description to be compelling on the issue of Lucero’s credibility. In addition, Lucero’s older brother Miguel reported that he had seen father hit Lucero with a tree branch at least 10 times. Even mother admitted that Lucero had told her that father hit Lucero with a stick. Such evidence was sufficient to support the juvenile court’s finding that father physically abused Lucero.

The juvenile court also sustained Count b-2 of the petition which, as amended by the court, alleged that father bit Kevin’s penis causing Kevin pain and that such physical abuse endangered Kevin’s physical and emotional health and safety. Because father does not challenge that finding on appeal, we are bound by the juvenile court’s determination in that regard.

C. Substantial Evidence Supports the Domestic Violence Finding

In addition to the Counts discussed above, the juvenile court sustained Count b-4 of the petition which, as amended by the court, alleged that father engaged in an altercation with mother during which father struck the door of the children’s home, breaking the door frame, and that such altercation between father and mother endangered the children’s physical and emotional health and safety in violation of section 300, subdivision (b). That subdivision provides in pertinent part: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶ . . . ¶] (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.” (§ 300, subdivision (b).)

Father contends that there was insufficient evidence to support the juvenile court’s domestic violence finding. According to father, the altercation with mother in August 2007 does not establish a violation of section 300, subdivision (b) because that isolated incident does not show that Kevin is at current risk of harm from father.

It is well established that “‘domestic violence in the same household where children are living is neglect; it is a failure to protect [them] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.’ (In re Heather A. (1996) 52 Cal.App.4th 183, 194 [60 Cal.Rptr.2d 315].)” (In re S.O. (2002) 103 Cal.App.4th 453, 460-461.) Here, mother, Miguel, and Lucero all testified that during the August 2007 altercation with mother, father kicked the door of the children’s residence so hard that he broke the door frame. That evidence, when coupled with the evidence that father repeatedly hit Lucero with a tree branch, was sufficient to raise an inference that father had a propensity towards physical violence and therefore posed a present risk of harm to Kevin. Because that inference is reasonable, it supports the juvenile court’s domestic violence finding.

D. Monitored Visitation

Father contends that DCFS failed to facilitate the monitored visitation ordered by the juvenile court and that the court exceeded its jurisdiction when it ordered that father’s visits be monitored by a professional outside DCFS. Neither contention has merit.

Even assuming that DCFS failed to facilitate the court-ordered visitation with Kevin and that, as a result, no visitation took place during the three month period prior to the adjudication hearing, that issue is either moot or not prejudicial at this juncture. At the time of the adjudication hearing, this matter was still in the reunification phase. No determination had yet been made concerning whether father had complied with his case plan or successfully reunified with Kevin. Moreover, at the hearing, the juvenile court ordered continued visitation and further reunification services for father. Thus, not withstanding the alleged failure of DCFS to facilitate visitation, father does not appear to have been prejudiced by that failure. There is nothing in the record to suggest that he is not currently able to visit regularly with Kevin or that he is being denied reunification services. Therefore, we are unable to determine at this juncture whether father’s interests were harmed by the initial lack of visitation. Given the record on this issue, we assume that if at some later stage of the proceedings DCFS’s alleged failure to facilitate visitation becomes relevant, father will at that time be able to raise the issue with the juvenile court. As a result, there is no reason to reverse the juvenile court’s jurisdictional and disposition orders based on alleged conduct by DCFS which has yet to cause harm to father’s parental rights.

According to father, the juvenile court made a specific finding that he had received reasonable services, when in fact DCFS had failed to assist him in locating a professional monitor, resulting in no visitation with Kevin for three months. The record, however, does not contain any specific finding that father had received reasonable services. Rather, it only shows that the juvenile court found that “reasonable services have been provided to meet the needs of the minor[s].”

As noted, contrary to father’s contention, the record does not contain a specific finding by the juvenile court that father received reasonable services. Thus, that issue remains to be determined by the juvenile court.

Father’s related claim that the juvenile court exceeded its jurisdiction by ordering a professional monitor outside DCFS is similarly flawed. First, father failed to object to the requirement of a professional monitor at the time the order was made in October 2007, thereby forfeiting the claim on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558 [“In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal”].) Second, the juvenile court remedied any claimed error in December 2007 when it ordered visitation with any monitor approved by DCFS. Third, as discussed above, father has failed to show any prejudice to his interests resulting from the professional monitor requirement. At best, father has shown that the professional monitor requirement temporarily interfered with his visitation rights, without showing how his relationship with Kevin was harmed or how his parental rights were prejudiced.

Father contends that he did object, but the record does not support that contention.

DISPOSITION

The orders of the juvenile court from which father appeals are affirmed.

We concur: TURNER, P. J., ARMSTRONG, J.


Summaries of

In re Kevin H.

California Court of Appeals, Second District, Fifth Division
Jul 16, 2008
No. B204894 (Cal. Ct. App. Jul. 16, 2008)
Case details for

In re Kevin H.

Case Details

Full title:In re KEVIN H., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jul 16, 2008

Citations

No. B204894 (Cal. Ct. App. Jul. 16, 2008)