Opinion
B233643
01-11-2012
In re A.Q. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.T. et al., Defendants and Respondents; A.Q. et al., Appellants.
Merrill Lee Toole, under appointment by the Court of Appeal, for Appellant A.Q., Minor. Aida Aslanian, under appointment by the Court of Appeal, for Appellants K.Q. and D.Q., Jr., Minors. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK86889)
APPEAL from an order of the Superior Court of Los Angeles County. Sherri Sobel, Juvenile Court Referee. Affirmed.
Merrill Lee Toole, under appointment by the Court of Appeal, for Appellant A.Q., Minor.
Aida Aslanian, under appointment by the Court of Appeal, for Appellants K.Q. and D.Q., Jr., Minors.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendants and Respondents.
Appellants A.Q. (born Mar. 1995), K.Q. (born May 1996), and D.Q., Jr., (born July 2005; collectively the children) challenge a juvenile court order finding that they are not persons described under Welfare and Institutions Code section 300, subdivisions (b) and (d), and dismissing the petition. They contend that there was substantial evidence to sustain the section 300 petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The children's parents did not file a respondent's brief. The Department of Children and Family Services (DCFS) filed a letter brief asking that we grant the relief requested by the children.
The children have the same mother, A.T. (mother); D.Q., Sr., (father) is A.Q.'s stepfather and the biological father of K.Q. and D.Q., Jr. Father met mother when she was pregnant with A.Q. and his is listed as A.Q.'s father on her birth certificate. A.Q.'s biological father is deceased.
Pursuant to the deferential substantial evidence standard of review, we must affirm the juvenile court's order.
FACTUAL AND PROCEDURAL BACKGROUND
Detention Report; Section 300 Petition; Detention Hearing
On February 14, 2011, DCFS received a referral alleging sexual abuse of A.Q. by father. According to the detention report, law enforcement went to the home because A.Q. and mother were having an argument. At that time, A.Q. reported that father had sexually abused her on two occasions, once in April 2010 and once in January 2011. After the first incident, A.Q. told mother; mother confronted father, who denied the allegations. The second time, A.Q. believed that father was drunk at the time he attempted to fondle her. At around 4:00 a.m., mother went into her room and asked why she was awake. A.Q. said that she began to cry and told mother that father had tried to touch her again. A.Q. then said that K.Q., who shared the room with her, woke up and discussed what had occurred with mother and A.Q. Mother again confronted father, and he again denied the allegation.
Mother stated that she believed A.Q. and decided to leave father.
K.Q. said that she had no knowledge of any sexual abuse; she and A.Q. share a bedroom and she never saw father touch A.Q. in an inappropriate way. K.Q. further reported that A.Q. "always does things to get her way." Because father does not allow A.Q. to do whatever she wants, K.Q. believed that A.Q. was doing this to get back at father.
D.Q., Jr., said that no one had ever touched him inappropriately.
Father denied the allegations of sexual abuse. He agreed to leave the children in mother's care. Father was arrested on February 15, 2011, and charged with lewd and lascivious conduct with a child. On March 2, 2011, the sexual abuse charges were dismissed.
On March 7, 2011, DCFS filed a section 300 petition on behalf of the children pursuant to subdivisions (b), (d), and (j). The children were detained.
Jurisdiction/Disposition Report
In its April 4, 2011, jurisdiction/disposition report, DCFS reiterated the allegations against father. The social worker concluded: "It is highly unlikely that [A.Q.] disclosed the sexual abuse for any . . . reason other [than] to free herself from an inappropriate relationship created by [father]. [A.Q.] sought out her own protection by calling law enforcement when her mother did not behave protectively by not believing [A.Q.'s] disclosure when [the] child initially disclosed the allegations of sexual abuse and by not ensuring that [father] not have access to [A.Q.] Clearly, [mother] considered many other things before behaving protectively toward [A.Q.]. [Mother] is completely financially dependent on [father] and is currently three months behind in rent since [father] is no longer residing in the home. The latter may be one of the things [mother] considered after [A.Q.'s] initial disclosure of abuse in April 2010 by [father] before behaving protectively towards her daughter allowing for a second incident of abuse to occur in January 2011."
May 9, 2011, Contested Hearing
At the contested adjudication hearing on May 9, 2011, the juvenile court received the social worker's reports into evidence.
Then, A.Q. testified. She reiterated the allegations of two incidents of sexual abuse by father. She also testified that father drinks alcohol and that she has seen him drunk.
A.Q. further stated that she was pregnant; she got pregnant by her boyfriend in January 2011, at around the time the first alleged incident of sexual abuse occurred. She also admitted that she was on probation in February 2011, at the time she reported the sexual abuse. A.Q. testified that she was supposed to be home by 8:00 p.m., and that she was not in the house by the court-ordered time. It did not bother A.Q. that she was breaking court orders; she did not "consider it a big deal because [she] was on informal probation. And [she] wasn't doing anything wrong, like out with friends, doing drugs and stuff like that."
According to A.Q., she was on probation for getting "caught in school, drunk, and they gave [her] a ticket. And, when [she] went to court, they just gave [her] informal probation and [she] had to go to counseling for three months."
A.Q. testified that she told mother the following morning what father had done. Mother confronted father and then the family talked it about it and "let it go." After the second incident, A.Q. also told mother what had happened. At that point, mother stayed in the bed with A.Q. until the next morning. When mother asked father about A.Q.'s allegation the next day, father denied it, and mother and father "let it go" a second time.
The juvenile court then entertained oral argument. First, DCFS argued that the juvenile court would "have to assess credibility" and that A.Q. had "been consistent as far as what she[] told the police and the court. [¶] Obviously . . . it's certainly inappropriate touching if what [A.Q.] says is correct."
A.Q.'s counsel spoke next. "[A.Q.] has been consistent from the very first time this happened with what she told her mother within hours of it happening.
"The mother agrees that the child told her within hours of this happening. It's throughout the reports. The mother's stated she was told directly afterwards, did not believe her, confronted [father].
"This went on to the second time that it happened after the family had decided to basically sweep this under the rug. It happens again. She tells her mother again. Her mother must have had suspicions that this was true if she decided to spend the entire evening in the room with [A.Q.] that night, presumably because she was concerned that he may come back. And all accounts are that they had been drinking on that evening.
"[A.Q.], hoping that she would not get anyone into trouble, again didn't say anything. When she does say something, it is in a moment of anger at her mother. But I believe that this is a case where she did get angry and she told the truth. She's told the truth here today. She's told the same story that she told the police that day, [and] that she had told everybody in this case, the social worker. There's been absolutely no inconsistency in what she's been saying.
"The fact that this child is now pregnant by another minor is completely irrelevant to whether or not [father] sexually molested her.
"Further, the fact that this child was having issues at that time in her life is exactly the type of child that gets targeted by sexual predators, and I believe that's what happened here in this case.
"He saw a child that was vulnerable; a child who social workers, her mother, the court, others may not believe is telling the truth because of other issues going on in her life. And he targeted that child. He took advantage of a vulnerable child and he sexually molested her. Her story has been consistent throughout, and I would ask that the court sustain the petition as pled."
Counsel for K.Q. and D.Q., Jr., argued next. She indicated that K.Q. was supportive of her sister, but also could not believe that father would have done this. Ultimately, she opined that father did something he ought not to have done, and she believed that he would never do it again. But, she asserted that the petition needed to be sustained.
Then, father's counsel spoke. She reiterated that father denied all the allegations and that he denied that he had ever been inappropriate with the children. Furthermore, there were inconsistencies in A.Q.'s testimony. For example, A.Q. earlier reported that K.Q. woke up and saw A.Q. crying; when K.Q. asked what was wrong, A.Q. told her sister that father tried to touch her again. But, at the hearing, A.Q. said that no one else knew about the alleged abuse.
Counsel also indicated that A.Q. "is a troubled teen. She has a lot going on. [¶] And that's no reason to believe she's lied. But I think, coupled with all of the facts— she's on probation. She conceived this child—if you count back, she's four months pregnant, she conceived this child in January when she's saying all these incidents occurred.
"This is another point that the court should consider, that she wants to be away from the family home. [Father] is the [disciplinarian] in the home and she wouldn't be allowed to go and move in with the boyfriend if he was there.
"So there's a lot going on. A lot was left out in her testimony.
"And, again, the father denies that these things have ever happened."
A.Q. then left the courtroom.
After noting that it is not easy to raise children today, the juvenile court dismissed the section 300 petition on behalf of K.Q. and D.Q., Jr. It then turned its attention to A.Q. The juvenile court first commented that the behavior of children who act out is consistent with "being a victim and not an excuse to let a molester off the hook. [¶] However, there are some cases where the credibility of the child has to be looked at quite carefully in the context of not only what was happening in the home but what was said." After summarizing A.Q.'s testimony, the juvenile court remarked, "I don't even understand what that means."
After counsel's attempt to clarify what she believed the juvenile court misunderstood, the juvenile court continued: "I don't buy it. I don't buy any of it. I don't believe it happened. I don't believe it happened the way she said. I don't believe it happened at all. [¶] And so the family has a major problem now because they have to figure out what's what. [¶] I'm dismissing the petition in its entirety. [¶] I am always 'believe the child first.' This makes no sense, none at all. [¶] And . . . I cannot go with the child, given everything else that's been happening in this household and everything else that's been happening. [¶] . . . [¶] I do not believe this happened. [¶] I'm dismissing the petition in its entirety, and the family is going to have to figure out what they're going to do. [¶] [Father] is free to return home. [¶] The petition's dismissed."
Petition for Writ of Mandate
On May 11, 2011, A.Q. filed a petition for writ of mandate. K.Q. and D.Q. filed a joinder. On May 12, 2011, DCFS filed a letter brief asking that A.Q.'s petition be granted. On May 13, 2011, father filed a letter brief requesting that A.Q.'s petition be denied. On May 19, 2011, we summarily denied A.Q.'s petition.
Appeal
The children's timely appeal ensued.
DISCUSSION
A. Standard of review
At a jurisdictional hearing, "'proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300.' [Citation.]" (In re Sheila B. (1993) 19 Cal.App.4th 187, 198.) On appeal, we review the juvenile court's findings for substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
"'"In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible."' [Citation.]" (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
"We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.]" (In re Sheila B., supra, 19 Cal.App.4th at pp. 199-200.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) "The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
B. Analysis
On appeal, the children argue that the juvenile court had sufficient evidence to sustain the section 300 petition under subdivision (b) and/or (d). Specifically, they point to A.Q.'s statements and testimony, which they claim are reliable and consistent; the minor inconsistencies in her testimony did not make it less credible. The problem is that their argument amounts to nothing more than an inappropriate request for this court to reweigh the evidence. This case turned on the juvenile court's determination that A.Q. was not a credible witness, and, as troubled as we may be by the allegations against father, we are not in a position to second guess the juvenile court, which observed the demeanor of the witness first hand.
The juvenile court admitted the written reports into evidence and heard A.Q.'s testimony. It then stated, numerous times, that it did not believe A.Q. or that the alleged sexual abuse occurred at all. The juvenile court's assessment of A.Q.'s credibility is supported by the evidence, including father's denial of the allegations and K.Q.'s statements to the social worker that she never saw any sexual abuse and that A.Q. would "do[] this to get back at their father." It follows that the juvenile court's finding is supported by substantial evidence, and we are not at liberty to reverse the order of the juvenile court.
In re Jessica C. (2001) 93 Cal.App.4th 1027, 1034 (Jessica C.)and In re P.A. (2006) 144 Cal.App.4th 1339, 1344, are distinguishable. In those cases, the juvenile court sustained the section 300 petitions, and the fathers appealed, claiming that the victimized children's testimonies were inconsistent, and thus there was insufficient evidence to affirm the juvenile court's orders. (Jessica C., supra, at p. 1034; In re P.A., supra, at p. 1344.) In that context, the Court of Appeal noted that "[s]uch quibbles do not render a child's testimony in a sexual abuse case unreliable." (Jessica C., at p. 1034.) The procedural posture of the instant case is the reverse: Here, the juvenile court found no evidence to sustain the allegations set forth in the section 300 petition. We cannot, and will not, bend the rules of appellate review and reweigh A.Q.'s testimony to determine whether it is credible and reliable to warrant a reversal of the juvenile court's findings.
DISPOSITION
The juvenile court's order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________, J.
ASHMANN-GERST
We concur:
_____, P. J.
BOREN
_____, J.
CHAVEZ