Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the juvenile court of Los Angeles County No. CK65904, Jan Levine, Judge.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant Quang V.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kirstin J. Andreasen, Associate County Counsel, for Respondent Los Angeles County Department of Children and Family Services.
MOSK, J.
INTRODUCTION
Quang V. (father), the father of minor A.Q., was accused in a petition filed under Welfare and Institutions Code section 300 of sexually abusing A.Q.’s older half-sister, Kimberly M. (Kimberly). At the jurisdictional hearing, the juvenile court found that father had sexually abused Kimberly from the time she was eight years old until she was 14 years old. There was also evidence presented that father had recently abused A.Q.’s six-year old female cousin, L.H. Based on the evidence presented, the juvenile court found, inter alia, that A.Q. was a person described in section 300 and detained him from father.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father appeals from the dispositional order removing custody of A.Q. from him and vesting custody in the Department of Children and Family Services (DCFS), challenging the sufficiency of the evidence in support of the juvenile court’s finding that A.Q. was substantially at risk of sexual abuse. We hold that the juvenile court’s uncontested finding that father had sexually abused Kimberly constitutes sufficient evidence to support the finding that A.Q. was at risk of being subjected to sexual abuse. We therefore affirm the dispositional order of the juvenile court
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2006, DCFS filed a petition under section 300, subdivisions (b), (d), and (j), alleging, inter alia, that A.Q. came within the jurisdiction of the juvenile court. The petition alleged that “since 1998 and for six years after, . . . [father] sexually abused the child, Kimberly . . . .” The petition further alleged that “mother allowed . . . father to continue to reside in the child’s home and allowed . . . father unlimited access to the child, resulting in ongoing sexual abuse of the child.”
In a November 30, 2006, detention report, DCFS reported that the family came to the attention of the Department on November 27, 2006, based on allegations that father had sexually abused A.Q.’s six-year old female cousin, L.H., and Kimberly. According to the report, Kimberly “disclosed to [the children’s social worker (CSW) that], since the age of about eight years old until Kimberly was nearly fourteen years old, [father] . . . fondled Kimberly’s vaginal area with his hand, touching Kimberly skin to skin. Kimberly reported [to the CSW that] she disclosed to her mother . . . the sexual abuse throughout the time Kimberly was sexually abused.”
Based on interviews with Kimberly, her mother, and father, DCFS requested that the Alhambra Police Department respond to the mother’s residence. Father was arrested for sexual abuse and the children’s mother was arrested for child endangerment.
At the November 30, 2006, detention hearing, neither father nor the children’s mother were present because both were incarcerated, but they were represented by counsel. The juvenile court made preliminary findings that DCFS had made a prima facie case for detaining A.Q. and Kimberly, and that they were persons described by section 300, subdivisions (b), (d), and (j). The juvenile court further found that a substantial danger existed as to the physical or emotional health of the minors and that there were no reasonable means to protect the minors without removal from their mother’s home. Temporary custody of A.Q. and Kimberly was vested with DCFS, and the children were placed in the home of their maternal aunt. The juvenile court continued the matter to January 9, 2007, for a pretrial resolution conference and to January 23, 2007, for a contested adjudication hearing.
On January 9, 2007, DCFS filed a jurisdiction/disposition report. The report referred to and attached a supplemental report from Alhambra Police Detective Janelle Meier, who reported that Kimberly told her that when Kimberly was eight years old, she was sitting on the bed with father when he took her left hand and began sucking on the middle finger.
Kimberly also told Detective Meier about a second incident when she was eight years old during which she awoke in the middle of the night “to the sound and motion of the bed moving. Kimberly saw father watching “porn” and masturbating underneath the blanket. This scenario occurred “a few times,” and sometimes father would masturbate without anything covering him.
At that time, Kimberly, her mother, and father all shared the same bed.
Kimberly further informed Detective Meier of a third incident when she was eight years old during which she awoke “to [father’s] rubbing her leg with his hand. [Father] then reached inside [Kimberly’s] pajamas . . . over her underwear and rubbed the outside of her vagina. [Father] then reached inside of [Kimberly’s] underwear and rubbed her vagina with his fingers inside her labia majora. [Kimberly] pretended to be asleep . . . and said that this occurred at least once a week for approximately two years.”
In addition, Kimberly explained to Detective Meier that by the time she was eleven years old, father was not molesting her because she would move away from him whenever he entered the room. During that time period, father was sleeping on the floor, while Kimberly and her mother slept in the bed.
When Kimberly was twelve and thirteen years old, “she remembered seeing [father] masturbating several times on the floor next to the bed in the middle of the night. Kimberly told Detective Meier that she [had] seen [father’s] bare, erect penis approximately five times.”
Kimberly reported to Detective Meier a final act of abuse by father when she was thirteen. On that occasion, Kimberly “remembered waking up one morning to the touch of [father’s] hand on her right leg. His hand continued moving toward her vagina over her clothing. When [Kimberly] realized what he was doing, she kicked him and moved his hand off of her vagina. She simultaneously yelled at him to ‘Leave! Get out! Get out!’” When father left, Kimberly called her mother, who was not home at the time, and told mother what father had done. She also told her mother that she had seen father masturbate in the middle of the night.
Kimberly’s mother “kicked [father] out of the house . . . .” He lived with his two daughters from a prior relationship for approximately a year. When Kimberly turned 15 years old, her mother became pregnant by father. In November 2005, A.Q. was born, at which time father moved back in with Kimberly and her mother. From the time he moved back into her mother’s house to the time of the interview with Detective Meier, i.e., over a year, father did not engage in any acts of sexual abuse toward Kimberly.
The Alhambra Police also interviewed the mother of A.Q.’s six-year old female cousin, L.H., regarding the allegation that father had molested L.H. L.H.’s mother reported that while mother was in another room, she heard L.H. say “Don’t touch my pee-pee.” L.H.’s mother went into the living room and saw L.H. sitting on father’s lap. When she asked father what happened, he replied, “I’m just playing with her.”
The police then interviewed L.H. who told them that she was sitting on father’s lap watching “Elmo” when father reached down between her legs and touched her. L.H. “loudly” told father, “Don’t do that to me,” and father stopped.
Father was interviewed by DCFS and denied molesting either Kimberly or L.H. As to both girls, father maintained that they were lying or had misinterpreted innocent, appropriate touching by him.
Prior to the contested adjudication hearing, DCFS submitted police booking reports relating to the arrests of the children’s mother and father, including a narrative account prepared by Alhambra Police Officer Orozco, the initial officer to respond to the mother’s residence at the request of DCFS on November 27, 2006. Officer Orozco reported that Kimberly had told him that father “molested her over a five year period (1998-2003) . . . an estimated 20-30 times.” In each incident, father would “rub only her vagina area, never her buttocks or chest.” Kimberly said that father touched her over her clothing and under her clothing. She also reported that “on several occasions, she saw father masturbating himself (under his clothing) while he fondled her.” In addition, she told Officer Orozco about the last incident of abuse in 2003 “when she was awakened in the middle of the night by [father] who was using his hand to rub her vagina (skin to skin contact).”
The contested adjudication hearing began on February 15, 2007. DCFS submitted into evidence the November 30, 2006, detention report; the January 9, 2007, jurisdiction/disposition report with attachments, including the December 7, 2006, supplemental police report; the January 9, 2007, information for court officer with attachments; the January 23, 2007, supplemental report; and the February 15, 2007, information for court officer with attachments. DCFS called Kimberly as a witness and she testified at length about father’s sexual abuse of her on both direct and cross-examination. Father’s attorney called him to testify and, as he had done in interviews with DCFS and the police, he denied abusing either Kimberly or L.H. A.Q.’s counsel joined with DCFS in asking that the petition be sustained.
After considering the written submissions and four days of testimony, the juvenile court ruled as follows: “I agree . . . that there was consistency in Kimberly’s testimony of the abuse that she received by [father] and while she gave conflicting reports to the different people who interviewed her as to the frequency of the abuse and whether or not she told her mother . . . [,] [¶] [h]er essential story stayed the same, that she was abused. It’s clear having [to disclose] . . . this [abuse] is very difficult for her in that she’s been separated from her mother to whom she’s obviously very attached. I think the fact that the disclosures have been at such great cost to her, reinforces her credibility. I also agree that [father’s] . . . credibility is not as persuasive as Kimberly’s. I don’t find him to be as credible. I find his story either not really relevant to the essential allegations or inconsistent. [¶] . . . [¶] So I’m going to sustain the petition, Counts (B) (1) and (D) (1) as I’ve amended them and find that the children [Kimberly and A.Q.] are persons described by Welfare and Institutions Code section [300, subdivisions] (B) (1) and (D) (1) and (J) (1). (J) (1) is also as amended. [¶] I find that the children are persons described by section 300, subsection (B) and (D) and (J). [¶] We have had some four days of testimony in this matter and we admitted a number of exhibits into evidence. I considered the evidence and heard the testimony and the arguments, and based on this evidence, I’ve made the findings as I’ve stated.”
Based upon its findings, the juvenile court removed A.Q. from the custody of father and placed him and Kimberly with mother. The juvenile court expressly found by clear and convincing evidence that A.Q. would be at substantial danger if returned to father’s custody. Father was ordered to participate in reunification services and granted monitored visits with A.Q. only, twice a week.
From the time of their original detention until the jurisdiction/disposition hearing, the children had been living with a maternal aunt while their mother went through the process of reunifying with them. Based on the juvenile court’s disposition of the section 300 petition, it appears that father was not living at the mother’s residence at the time the dispositional order was made placing the children with their mother.
DISCUSSION
A. Standard of Review
Father’s challenge to the sufficiency of the evidence in support of the juvenile court’s jurisdictional findings is governed by a substantial evidence standard of review. “‘When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence . . . to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party . . . . [Citation.] In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]’ [Citations.]” (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.)
“‘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 Angelia P. (1981) 28 Cal.3d 908, 924 [171 Cal.Rptr. 637, 623 P.2d 198].) 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. [Citation.] “Issues of fact and credibility are questions for the trial court.” [Citations.] It is not an appellate court’s function, in short, to redetermine the facts. [Citation.]’ (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200 [23 Cal.Rptr.2d 482]; accord, Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969 [78 Cal.Rptr.2d 311].)” (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194-195.)
B. Substantial Evidence of Risk to A.Q.
Father contends that there was insufficient evidence to support the trial court’s jurisdictional findings under section 300 as to A.Q. According to father, although there may have been sufficient evidence to support the conclusion that he sexually abused Kimberly, there was no evidence at the time of the disposition hearing that 16-month old A.Q. would have been at risk of such abuse if returned to the custody of father.
A.Q. was born in November 2005. The juvenile court made its preliminary ruling detaining A.Q. on November 30, 2006, and its jurisdictional findings on March 26, 2007.
“A juvenile court’s jurisdictional findings are reviewable on appeal from the dispositional order. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112 [240 Cal. Rptr. 445].)” (In re P.A., supra, 144 Cal.App.4th at p. 1341, fn. 2.) The juvenile court has jurisdiction over a minor if the actions of either parent bring the minor within any one of the statutory definitions in section 300. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) “The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.)
The trial court found that A.Q. was at substantial risk under section 300, subdivisions (b), (d), and (j). Because the juvenile court’s jurisdiction is appropriate under any subdivision of section 300, we need not address the validity of father’s claim under each of the three subdivisions cited by the juvenile court, so long as there was substantial evidence to support jurisdiction under at least one of those subdivisions. (See In re Shelley J. (1998) 68 Cal.App.4th 322, 330 [“Having concluded there was substantial evidence to support the court’s determination that the minor came within the provision of section 300, subdivision (c), we need not address appellant’s claim that there was insufficient evidence to find jurisdiction under section 300, subdivision (j). Section 300 contemplates that jurisdiction may be based on any single subdivision”].)
Under the evidence presented, the juvenile court’s finding of jurisdiction over A.Q. can be sustained, inter alia, under section 300, subdivision (d), which 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: [¶] . . . [¶] 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.” (Italics added.)
Father does not challenge on appeal the juvenile court’s findings under section 300, subdivision (d) concerning his sexual abuse of Kimberly for several years prior to A.Q.’s birth, and we are therefore bound by those factual conclusions for purposes of father’s appeal. Instead, father argues that there is no evidence to support a reasonable inference that A.Q. was at substantial risk of sexual abuse at the time of the disposition hearing. Father bases his assertion on A.Q.’s gender—male—and age at disposition—16-months—as well as the evidence showing that any abuse of Kimberly ceased well prior to A.Q.’s birth.
Contrary to father’s suggestion, the juvenile court’s finding that he sexually abused Kimberly can support a reasonable inference that A.Q. was at risk of similar abuse, notwithstanding his gender, age, or the cessation of father’s abuse of Kimberly. As the court concluded in In re Karen R. (2001) 95 Cal.App.4th 84, 90-91, “a father who has committed two incidents of forcible incestuous rape of his minor daughter reasonably can be said to be so sexually aberrant that both male and female siblings of the victim are at substantial risk of sexual abuse within the meaning of section 300, subdivision (d), if left in the home. To the extent other cases suggest only female siblings are in substantial danger of sexual abuse after a sexually abused female sibling has been removed from the home due to sexual abuse by a father, we respectfully disagree. (See In re Rubisela E., supra, 85 Cal.App.4th at p. 197; In re Joshua J. (1995) 39 Cal.App.4th 984, 994-995 [46 Cal.Rptr.2d 491].) Although the danger of sexual abuse of a female sibling in such a situation may be greater than the danger of sexual abuse of a male sibling, the danger of sexual abuse to the male sibling is nonetheless still substantial. Given the facts of this case, the juvenile court reasonably could conclude every minor in the home, regardless of gender, was in substantial danger of sexual abuse by father.”
Kimberly reported and testified that over a period of years, father repeatedly fondled Kimberly’s vagina, sometimes when mother was in bed with them. The evidence further shows that he masturbated in Kimberly’s presence, exposing himself on more than one occasion. Moreover, on at least one occasion father watched “porn” in Kimberly’s presence. The record also reflects that father had recently engaged in sexually abusive conduct with six-year old L.H. that was similar to that in which he engaged with Kimberly. Although father denied at the hearing that he engaged in any such conduct, the juvenile court found Kimberly more credible than father.
Based on the uncontested factual findings concerning father’s continuous abuse of Kimberly, the juvenile court could have reasonably concluded that there was a substantial danger that A.Q. was at risk of being subjected to similar conduct, even if the risk posed was not as great as it would have been if A.Q. were an older, female child. In particular, as it relates to A.Q., father’s conduct in watching pornography in the presence of a minor and repeatedly masturbating in the presence of that minor, sometimes exposing himself to her, can reasonably be said to be “so sexually aberrant” that both male and female siblings of Kimberly could be at substantial risk of similar abuse, within the meaning of section 300, subdivision (d). Although father had stopped abusing Kimberly approximately two years prior to the jurisdictional findings relating to A.Q., there was evidence in the record that father had recently engaged in similar abusive conduct toward six-year old L.H., thereby supporting a reasonable inference that father posed a current risk to young siblings or relatives. Accordingly, there is substantial evidentiary support for the juvenile court’s jurisdictional findings as they relate to A.Q.
DISPOSITION
The dispositional order of the juvenile court is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.