Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INJ021142 Samuel Diaz, Jr., Judge.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Respondent.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mi.D., father, appeals from an order sustaining a juvenile dependency petition and removing custody of the minor child, Me.D., from father and placing her with mother, Mo.D. Both the Riverside County Department of Public Social Services (DPSS) and mother have filed respondents’ briefs.
Father argues there is insufficient evidence to support the allegations of failure to protect and sexual abuse under section 300, subdivisions (b) and (d). He also contends the court abused its discretion by not watching a recording of an interview with the child. We conclude the evidence in the record is sufficient and the trial court did not abuse its discretion. We affirm the jurisdictional and dispositional orders.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Family Law Case
Mother and father married in 2005. Me.D. was born in December 2005. The parents separated in 2006 and their divorce was final in 2009. Beginning in April 2009, after father completed parole, the parents agreed to share joint legal and physical custody of Me.D. In August 2009, the family court ordered father to have temporary custody because of mother’s alleged drug use.
B. Original Juvenile Dependency Petition
While the custody dispute in family court was ongoing, the DPSS filed an original juvenile dependency petition (§ 300) on January 12, 2010. The petition alleged a failure to protect the child and sexual abuse based on father’s sexual abuse of the child, father’s domestic violence against mother, father’s criminal history, and father’s drug use, including methamphetamine. (§ 300, subds. (b), (d).) The specific allegations of sexual abuse were that father had hit the child in the pelvic area and that she had seen pornographic movies at his house.
C. The Detention Report
The detention report elaborated upon the allegations of the dependency petition. Mother had called DPSS stating that the child had “covered her private area like she didn’t want anyone to see her and when asked if anyone touched her, [she] replied, ‘Yes, ... (father) hit me.’ [Mother] further alleged that [the child] then demonstrated how she was hit.” Mother further stated that the child then “demonstrated on a doll how she was touched in the private area.” Mother also stated that the child “disclosed that she has been exposed to illicit material.” Mother had previously obtained a five-year restraining order against father, effective from April 2006 to April 2011.
Father was involved in a prior dependency proceeding regarding his son, D.D. Reunification services to father were terminated in June 2006 because of father’s felony conviction and failure to complete services. In August 2007, the dependency was terminated after a permanent plan of legal guardianship with D.D.’s paternal grandparents was established.
The court ordered that Me.D. be detained with mother.
D. The Jurisdiction/Disposition Report
The jurisdiction/disposition report, submitted by DPSS on February 9, 2010, describes father’s criminal history, including trespassing in 1996, kidnapping in 2000, drug possession in 2004, and domestic violence in 2006. Father had received a three-year sentence for inflicting corporal injury on a spouse (Pen. Code, § 273.5) and had been released from custody in March 2008.
The child was given an RCAT (Riverside Child Assessment Team) interview in which she disclosed sexual abuse by father. The RCAT interviewer said the child “was unable to provide contextual details regarding the abuse and was unable to verbalize specific events.... [t]he child was limited verbally during the interview, and the child did not want to continue the interview after disclosing the abuse.”
A forensic pediatric examination could not confirm or deny sexual abuse. But the forensic report described the child’s statements to mother that father had touched her “cookie, ” the word she used for genitals, and that she had seen father “‘playing with his tail’ [masturbating] & watching nasty movies.”
Mother said that the child had been speaking and acting inappropriately. The child told mother that father had touched and punched her “cookie.” The child also told mother she had “watched nasty movies with big boobs” while with father.
Mother confirmed that father had engaged in physical and emotional abuse against her. Mother had obtained a five-year restraining order against father in 2006. Mother had abused alcohol until 2007. Mother admitted using methamphetamine between 2003 and 2007 and that she had relapsed in August and December 2009, when she tested positive. Mother had attempted suicide twice in 2007 but was being treated for depression. She was participating in substance abuse and parenting programs.
Father denied all allegations of sexual abuse as “a total lie.” Father had used drugs and alcohol in the past but had completed substance abuse and domestic violence programs. He was completing parenting education in February 2010.
Me.D., age four, expressed a wish to stay with mother and not to return to father’s home.
DPSS recommended the child be declared a dependent of the court and placed with mother with family services provided to both parents.
E. The Contested Jurisdictional/Dispositional Hearing
In March 2010, at the contested jurisdictional/dispositional hearing, the following comments were made regarding the videotaped RCAT interview. Father’s counsel said, “There is an [RCAT] DVD that we have, all parties here, excluding the parents, have reviewed, and in that the child... does not indicate that she was sexually abused in any way. And she certainly did not make any disclosures that there was any pornographic material that she had been exposed to. [¶]... [¶] I’m not sure if the court feels that viewing the [RCAT] would be of assistance, but there are statements in there... that kind of makes this beyond the realm of—they are in the realm of complete imagination.”
Mother’s counsel added, “I did view the [RCAT]. And frankly, I think the [RCAT] had problems and maybe with the Court needs to look [at] that. [¶] I know the problems—one problem is the child’s attention when these questions were asked. The child was already very restless, wanted to be with her mommy, wanting to play, not really responding well to the inquiries. So that’s the problem with the [RCAT]. [¶]... If you experience coaching in this type case, Your Honor, I think it would have been a better indication in the [RCAT] for specific things the child would have been coached in saying. [¶] I think we have an [RCAT] that’s very limited in what the child disclosed....” Mother’s counsel did not object to the court reviewing the RCAT.
Minor’s counsel agreed: “I have to say the [RCAT] was bizarre. It’s hard to tell where imagination stops and where the truth comes out, if there is any truth in the [RCAT]. I don’t know what to think about the [RCAT]. [¶]... I can’t figure out what happened, if anything.... I would suggest that the court watch the [RCAT] because it’s hard to explain.”
The court then asked father’s counsel if he thought the RCAT interview would support father’s position rather than DPSS: “You want me to take into consideration something I have not reviewed or looked at in order to complete the conclusion that the county counsel did not meet [its] burden?”
Father’s counsel responded, “I don’t think the Court needs to review the [RCAT] to come to that conclusion.”
Counsel for DPSS did not object to the court viewing the RCAT interview but he doubted it “would add anything to the Court’s information.”
The court indicated it had reviewed the DPSS submissions, including the police report and the family law file, but not the RCAT interview. Based on those materials, the court sustained the allegations of the dependency petition and adjudged the child a dependent of the court to be placed in the physical custody of mother.
After the court made its orders, father’s counsel asked the court to review the RCAT interview. Father appealed.
F. Proceedings in the Appellate Court
Father’s appellate counsel made a motion to augment the appellate record with the family law file and the RCAT interview. This court granted the motion. After reviewing the record more fully, we conclude that the RCAT interview should not be considered on appeal. The reporter’s transcripts of the hearings in which the RCAT interview was discussed establish that the interview was never presented as evidence by any party in the lower court. Although the parties and the court discussed the interview and it was suggested the court might care to view it, the RCAT video was not submitted into evidence. The court did not watch it or give it any consideration, instead basing its decision on the DPSS reports, which included the police reports and the family law file.
III
ANALYSIS
A. Standard of Review
Father asserts there was insufficient evidence to uphold jurisdiction or removal under either section 300, subdivision (b) or (d). We disagree.
“‘The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court’s jurisdiction.... On review, this court will view the juvenile court record in the light most favorable to that court’s order.... We may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court.... Issues of fact and credibility are matters for the trial court alone; we may decide only “‘“whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.”...”” (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860, citations omitted.)” (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
More particularly, both jurisdiction and removal are justified where “the purpose of a dependency proceeding... is to protect the child, rather than prosecute the parent.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) “Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.) In this regard, the court may consider the parent’s past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.)” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
B. Sexual Abuse Allegation—Subdivision (d)
Father contends there was insufficient evidence of sexual abuse to support jurisdiction and removal of the child. Father argues that punching the child in the groin and unintentionally exposing her to purported masturbation while watching a pornographic movie do not constitute sexual abuse. He discounts the second-hand evidence of statements made by the child to mother and reported by her to DPSS. Father attacks mother’s bias and lack of credibility because of the ongoing custody dispute between the parents and because of mother’s mental health problems and her brief relapse into drug use. Father also challenges Me.D.’s credibility because of her young age and her susceptibility to parental influence. Finally, father protests that the court did not watch the RCAT video and evaluate the child’s direct statements.
On the latter point, father mischaracterizes what happened in the lower court. Although there was considerable discussion about the merits of the RCAT interview, the video was never submitted as evidence by any party. We disagree with father’s assertion that the juvenile court misunderstood the rules of evidence or the burden of proof for DPSS. Father misinterprets the court’s statement to mean that it believed the contents of the video would strengthen DPSS’s position rather than weaken it. Instead, we read the court’s comments to mean that it would not base its findings on information it had not received. The RCAT video was never proffered by father or another party. The court did not mistakenly exclude evidence as part of the record below. We do not consider the RCAT interview on appeal or those of father’s arguments which are based on its contents.
“You want me to take into consideration something I have not reviewed or looked at in order to complete the conclusion that the county counsel did not meet [its] burden?”
Father acknowledges that, in the absence of the RCAT interview, the court would have little reason to doubt that sexual abuse had occurred. Nevertheless, father also tries to argue that the allegations about father’s conduct—hitting the child in the pelvis and masturbating while watching a pornographic movie—did not constitute sexual abuse.
Father’s effort to segregate and minimize the incidents is not supported by the record. As reported by mother to DPSS, the child displayed a degree of sexual consciousness and behavior that were not appropriate in a girl who was barely four years old.
Father’s belated objections to the court’s reliance on the DPSS reports were waived by not challenging the reports below. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846, citing In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [by failing to object to assessment reports at the section 366.26 hearing, appellant waived the issue of inadequacy of the reports on appeal] and In re Riva M. (1991) 235 Cal.App.3d 403, 411-412; In re P.C. (2006) 137 Cal.App.4th 279, 287.)
If the juvenile court accepted the dependency allegations as credible, then the dependency court could reasonably conclude, based on the child’s statements, that she had experienced sexual abuse. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
C. Failure to Protect Allegation—Subdivision (b)
Father also makes various challenges to the court’s jurisdictional findings of failure to protect, which were based on father’s criminal history and past drug use. The statutory definition for subdivision (b) “consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The court focuses on circumstances existing at the time of the hearing, while considering past conduct as “probative of current conditions.” (Id. at p. 824.) Future risk of harm is not required. (In re J.K. (2009) 174 Cal.App.4th 1426, 1434-1436.) In the present case, the required three elements were demonstrated by evidence of recent sexual abuse; a history of, as well as ongoing, domestic violence between the parents; and father’s past drug use and criminal record.
IV
DISPOSITION
The RCAT video was never admitted into evidence and the RCAT interview is not part of the record on appeal. Instead, the court properly relied on the DPSS reports, including the family law file and the police reports. We conclude there is sufficient evidence supporting the allegations for section 300, subdivisions (b) and (d). For that reason, we decline father’s argument that we should reverse the court’s findings on subdivisions (b) or (d). We affirm the orders of the juvenile court sustaining the juvenile dependency petition and removing custody of the child from father and placing her with mother.
We concur: Ramirez P.J., King J.