Opinion
B232719
02-15-2012
In re JACOB F. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D. F., Defendant and Appellant; JACOB F. et al., Respondents.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent. Marissa Coffey, under appointment by the Court of Appeal, for Respondent Minors Jacob F. and Makenna F.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK85209)
APPEAL from orders of the Superior Court of Los Angeles County, Marilyn K. Martinez, Juvenile Court Referee. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
Marissa Coffey, under appointment by the Court of Appeal, for Respondent Minors Jacob F. and Makenna F.
INTRODUCTION
D. F. (Father) appeals from jurisdiction and disposition orders issued pursuant to Welfare and Institutions Code section 300 with respect to his minor son Jacob F. and his minor daughter Makenna F. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise identified.
FACTUAL AND PROCEDURAL BACKGROUND
On November 18, 2010, the Los Angeles Department of Children and Family Services (DCFS) filed a juvenile dependency petition pursuant to section 300, subdivisions (b), (d) and (j), on behalf of seven-year-old Jacob F. and his four-year-old sister, Makenna F. The petition alleged that Father had sexually abused Makenna on numerous occasions and, as a result, Jacob was also at risk of harm, specifically: "On numerous prior occasions, the children Jacob [F.] and Makenna [F.'s] father D. [F.] sexually abused the child Makenna by fondling and orally copulating the child's vagina and anus. On prior occasions, the child fondled, masturbated and orally copulated the father's penis." Additionally, "[t]he father's sexual abuse of . . . Makenna endangers the child's physical and emotional health and safety, placing the child Makenna and the child's sibling Jacob at risk of physical and emotional harm, damage, danger [and] sexual abuse." The petition further alleged that "[t]he father's sexual abuse of . . . Makenna endangers the child's physical and emotional health and safety, placing . . . Makenna and . . . Jacob at risk of physical and emotional harm, damage [and] danger." The petition as amended contained no allegations as to the children's mother, E.M. (Mother).
Mother is not a party to this appeal.
A Los Angeles Police Department investigative report dated November 5, 2010 was prepared by Officers Vardanian and Mikel regarding their interviews with Makenna, Jacob and Mother on that date. When the officers interviewed Makenna, she stated that earlier that day, she asked Father if he could lick her with his tongue on her "tutu" because she liked it. When asked to show what a "tutu" is, she pointed to her vagina. Makenna said that Father told her "'no because mommy is home.'" The child stated that Father had licked her vagina numerous times and had also asked her to lick his penis. She said that "'sometimes we lick each other at the same time.'" When asked where the acts took place, Makenna said "'sometimes in mommy's room on the bed, daddy closes the door and locks it. Then sometimes when we take a shower.'" She said that Mother was not home "'but sometimes we lick each other when she's home but daddy closes the door so mommy won't get mad.'" She reported that Father touched her vagina with his fingers numerous times and asked her to touch his penis. She said "'daddy asked me to scratch his penis and I did.'" When asked what she meant by "scratch," Makenna demonstrated a stroking motion in a horizontal movement with her hand.
The officers also recorded the interviews.
When one of the officers interviewed Jacob, he stated he had not observed any such acts as described by his sister. He also stated that Makenna told him of the acts. He denied being touched by Father.
Mother told Officers Vardanian and Mikel that she and Father had been married for approximately 17 years and have two children, Jacob and Makenna. She explained that approximately three weeks earlier, she noticed red bumps on Makenna's genital area. She was concerned and took Makenna for an examination by a pediatrician. Approximately two weeks after the examination, the pediatrician confirmed to Mother that the red bumps were type 1 herpes. Mother became upset and could not determine how her daughter caught the herpes virus.
Mother told the officers that, the previous evening, during dinner, Makenna began playfully blowing into Father's ear. Mother advised the child that she should act more ladylike. Mother also explained to her that she should not let anyone touch her private parts and she should not touch anybody's private parts. Makenna responded, "'I don't touch anybody's private parts except daddy's.'" Mother said that when she asked Makenna to explain, the child said "'sometimes daddy asks me to scratch him,'" and physically showed a jerking motion with her hand. Then Makenna told Mother that she had a secret that she was not supposed to tell. Mother asked what the secret was and why she was not supposed to tell, and she responded, "'daddy said don't tell mommy because she'll get mad.'" Mother asked the child to be honest with her and tell her everything. Makenna said "'daddy and I licked each other.'" Pointing to her vagina, she explained "'sometimes we lick each other's private parts at the same time.'" When Mother confronted Father about Makenna's statements, Father denied everything and said that Makenna was making up stories. Mother then told Father to leave their home.
Mother also told the officers that she had not had sexual intercourse with Father in approximately a year. She said that Father was a teacher at a private elementary school and taught the first through the sixth grades.
The officers took Mother and Makenna to the Center for Assault Treatment Services clinic at Northridge Hospital Medical Center for a medical examination of Makenna and interviews by Ann Allison, RNC-NP/SANE-A (Allison). According to Allison's examination notes, Makenna reported to the nurse that Father licks "'my tutu-pee pee'" and "'I like it. I ask him to.'" Another time Father licked her "'tutu'" when she was beside his penis. She reported to the nurse that the contact occurred more than one time, usually in Mother's room. Makenna stated that she asked Father to lick her tutu-pee pee "'today,'" but he said he could not because Mother was home.
Allison also made a written report of her examination of Makenna and her interviews with Makenna and Mother, each privately and not in the presence of the other. When the nurse asked Makenna to discuss what she had talked to her mother about, the child stated, "'My daddy left today. I told my mommy something my daddy didn't want me to tell her and mommy told him to leave.'" The nurse asked Makenna if what she told her mother had happened one time or more than one time. When the child responded that it was more than one time, the nurse asked her to tell about the last time. Makenna stated, "'I tried to ask my dad but he said no.'" The nurse asked her to explain what she asked Father. "Makenna stated, 'If he can lick me with his tongue on my tutu cause I like it and he said no.'" When asked if Father ever said yes, "Makenna stated, 'Yes . . . . I pull down my pants. He just did it, his tongue . . . ,' and explained that his tongue licked her 'front part, pee-pee. [¶] He wanted me to lick his too. His penis.'" When the nurse asked if anything else occurred another time, Makenna stated, "'I asked him if he could do it at the same time. If he could lick me when I lick him.' Makenna report[ed] that her father licked her [tutu, her pee-pee] at [the] same time that she licked him [on his penis]. [¶] . . . [¶] She stated, 'I liked it. He told me not to tell my mom because she would get mad but she didn't.'"
Allison recorded her interview with Makenna.
Children's social worker (CSW) Yekaterina Bessanova interviewed Mother, Makenna and Jacob at their home on November 11, 2010. Mother explained to CSW Bessanova that, during the end of September and beginning of October, Makenna had a rash in her vaginal area. When Mother took the child to the doctor to determine the cause of the rash, the doctor tested for herpes. Makenna was diagnosed with type 1 herpes. Mother later recalled that earlier she had a cold sore and could have transmitted the herpes indirectly to Makenna. When Mother questioned Father, he denied having any issue with herpes.
Mother told CSW Bessanova that, on Friday, November 5, Father took the children to school. He first dropped off Jacob and then took Makenna to Starbucks rather than immediately dropping her off. Mother reported that Makenna told her later that day that "daddy lickey." When Mother asked what Makenna meant, she stated that she licked Father and Father licked her on her bottom. Mother immediately reported the incident to DCFS. Police officers came to the home to conduct interviews. Father was not there.
According to CSW Bessanova, the following Monday, Mother obtained a restraining order against Father. Mother said that Father then picked up the children from the maternal grandmother's home. She was concerned that Father was still coming around after being served with the restraining order. Mother was not able to report any sexual inappropriateness by Father that she had witnessed. Father declined CSW Bessanova's request for an interview.
CSW Bessanova also interviewed Makenna. When the CSW asked how she liked spending time with Mother and Father, Makenna stated that "'daddy licked my bottom and tutu's.'" When asked what her "tutu's" was, she pointed to her genital area. She said that "'daddy asked me to scratch him and tickle him.'" When asked where, Makenna stated, "'on his private.'" She explained to CSW Bessanova in detail how she licked Father at the same time he licked her. She said that Father "'rubs my tutu's, when my pants are on or when my pants are off. I tell him to'" because "'I like it.'" Makenna said that "I asked daddy to do it, but he said no, then I told my mommy.'" She stated that "'it happened a lot of years.'" CSW Bessanova was unable to ascertain from Makenna whether she understood what "years" meant. Makenna told the CSW that "daddy did a sneaky thing, he came and took us to Chuckie Cheeses [sic], a different one and we took a picture.'"
On the same day, CSW Bessanova interviewed Jacob. When questioned, Jacob said that Father left because Father and Makenna were taking showers together. He stated, "'my sister told me that dad asked her to scratch his private parts'" and that Father and his sister "'touched each other's private parts.'" Jacob denied tickling or scratching Father or Father doing the same to him.
On November 18, 2010, the juvenile court held a detention hearing. The court made detention findings as to Father, vested DCFS with the temporary placement and custody of the children, and ordered the children released to Mother pending the next hearing. The court also issued a temporary restraining order which restrained Father from contacting Mother, the children and the maternal grandmother. The court authorized monitored visitation for Father and paternal relatives to occur only in the DCFS office. The court ordered DCFS to arrange individual counseling for both children, to provide family maintenance services to Mother, and to provide family reunification services to Father.
On November 11, the same day that CSW Bessanova conducted her interviews with the family, Los Angeles Police Officer Loretta Smith began a follow-up investigation by speaking with Mother by telephone. Mother gave Officer Smith an account of events substantially similar to the account Officer Vardanian recorded on November 5. Mother also said that, on November 5, when Makenna said she had a secret to tell Mother but was afraid Mother would get mad, Mother told the child she would not get mad. Father then told Makenna that he was going to get mad, and he went to another room. After Makenna whispered in Mother's ear that "'Daddy licked it at Starbucks,'" Mother confronted Father in the other room; he yelled at her that she was handling this wrong. She called Makenna into the room and asked her to tell her what Makenna meant by "'daddy licked it.'" Makenna said that Father had licked her vagina and that she had licked his penis, and then put her head down and said, "'because I like it.'" Father asked Makenna if she was sure and she said, "'Daddy, remember you locked the door.'" Mother called DCFS, which advised her to tell Father to leave and to file a police report. According to Mother, Father packed his things but did not leave. She went to the home of the maternal grandmother and met with police officers there, and then she and Makenna were taken to the Center for Assault Treatment Services clinic at Northridge Hospital Medical Center.
During the interview by Officer Smith, Mother added that after she confronted Father about Makenna's statements about the licking game, Father told her she needed to drop the matter because it could ruin their lives. Father asked Mother if he got a herpes test, would she drop it. He denied ever having herpes. After taking the children to school the next morning, Father got tested for herpes. Mother told Officer Smith that she never got the results.
In early December 2010, after obtaining a release from Father, Officer Smith obtained Father's herpes test results. The results indicated that herpes type 1 and type 2 were detected, but were not active. DCFS requested a pediatrician, Sara Stewart, M.D., to provide expert review of medical reports for Father and Makenna regarding herpes. In her written report, Dr. Stewart opined that "it is possible that Makenna could have contracted the type 1 herpes simplex virus from her father through several potential mechanisms in the sexual contacts that she described," but the likelihood that she did so could not be stated.
On December 8, Officer Smith interviewed Jacob and Makenna at their home. Makenna told Officer Smith that the last time she asked Father to lick her vagina was the day she told Mother. When asked why she told Mother that day, Makenna said that Father "'made up the secret and I made up the plan.'" She said "'Mommy was home and I asked him to do it and he didn't do it.'" She answered "'Yes'" when the officer asked if Father told her not to tell Mother. The officer asked if she had ever touched Father's private part. She said, "'I licked it and I touched it.'" Makenna said that Father liked licking her vagina and she liked licking his penis. She explained, "'We did it at the same time and it felt good. I don't know why mommy asked him to go away cause I miss him.'" According to Makenna, they played the licking game in Father's room. Father would lie on the bed, with his shirt off, but his underwear on, and she would lie down on top of him, with her underwear halfway off. Father would take her underwear off. When Officer Smith asked Makenna to draw a picture, she drew one picture with Makenna and Father lying the same way and another picture with her head near Father's penis. When Officer Smith asked if Makenna had touched anyone else's private part, she said that she touched Jacob's private part and he touched her private part. She said that since they started living at maternal grandmother's house, she and Jacob "'licked and we touched,'" and Jacob licked her vagina one time. According to Makenna, Jacob told Mother. She said she asked Jacob to lick her because Father was not there and she wanted it. Makenna told Officer Smith that she only does the licking with boys, but "'just my family.'"
Officer Smith interviewed Jacob. He was able to tell the officer the difference between the truth and a lie. When asked why he was living at his grandmother's house and not his house, Jacob said that Mother told Father to leave when Makenna told Mother that Father touched her private part. The officer asked Jacob if Father ever touched his private parts or he ever touched Father's private parts. Jacob said that when they showered with Father, he washed Jacob's private parts and Makenna's private parts and that Jacob had washed Father's private part. In response to the officer's questions, Jacob denied ever seeing Father touch Makenna's private parts outside of the bathroom, denied that Father touched Jacob's private parts outside of the bathroom, and denied that Makenna had ever asked him to touch her private parts.
On December 3, 2010, the juvenile court held an order to show cause hearing on the temporary restraining order against Father. The court issued a permanent restraining order restraining Father from contacting the children, which order was to expire on December 3, 2012. The court issued a visitation order allowing Father to visit with the children according to a schedule and only in the DCFS office.
In early January 2011, Dependency Investigator (DI) Chelsea Levine conducted interviews with Makenna, Jacob and Mother. DI Levine asked Makenna if she had ever been scared of Mother or Father, and Makenna said she had not been scared of Father and was only scared by Mother when Mother was dressed up for Halloween. DI Levine asked the child if there was anything special she liked to do with Mother. Makenna said she liked to cook "'muffins and everything'" with Mother. When asked if there was anything she liked to do with Father, Makenna said that she liked to wrestle with Father on her parents' bed and she wears clothes when they wrestle. She did not want to talk more about the wrestling and hid her head from DI Levine under a pillow.
When asked about taking showers or baths, Makenna said that she used to take baths with Jacob, but changed to taking them by herself because of her rash. When DI Levine asked where her rash was located, the child pointed to her genitals. DI Levine asked Makenna if she took showers. She said that she was taking showers and with Father. Makenna said that they play the "licking game" in the shower. When asked to explain the game, the child said, "'Daddy licks me here [pointing to her genitals] and I lick daddy here [pointing to genitals].'" Makenna said that they did not wear clothes when they played the game and that it only happened in her parents' room. Makenna stated, "'It is a fun game. It feels good.'" When asked if anyone else played the game with her, she responded that "'only daddy'" plays the "'licking game'" and he told her "'don't tell mommy.'" When asked if they played the game one time, two times or more times, Makenna said, "'It was a lot of times.'" She said she was four years old when the game happened. DI Levine asked where Mother was when Makenna played the "'licking game'" with Father. She said Mother was at the store, cooking, or resting in Makenna's bed. At this point in the interview, Makenna began touching her genitals and DI Levine asked her if she was feeling all right. Makenna said that she had a rash at that time and it itched. Mother had previously reported that Makenna was currently experiencing an outbreak of herpes. The interview ended, and Mother attended to Makenna.
DI Levine interviewed Jacob, who reported that sometimes Father slept in his bed, but when Jacob fell asleep, Father would go back to his own room. Jacob said he and Father wore pajamas, but sometimes they would take off their shirts and "'cuddle.'" Jacob said that meant that they slept next to each other; he did not describe any other touching. Jacob said that he liked to take baths by himself rather than showers, but that he sometimes showered with Father. They would spray each other with the shower hose. Jacob stated that Makenna would shower with him and Father. He said that he and Makenna would wash Father, but Jacob did not want to discuss the subject any more. When asked if there was anything special that he liked to do with Father, Jacob said that they liked to eat ice cream, and also he liked to go to the movies with Mother and Father. DI Levine asked if anyone in the home was mean to another one. Jacob said that sometimes his parents scream and "'say bad words,'" but he denied knowing of any physical fighting between them. Jacob told DI Levine that he felt safe with Mother and Father.
Mother told DI Levine that in October, Makenna was diagnosed with type 1 herpes, which is typically oral, but was on Makenna's genitals. Mother said that she questioned Makenna about possible sexual abuse, but the child did not disclose anything. Mother was concerned that she may have indirectly transferred the virus from a cold sore on her mouth when she helped Makenna wipe herself.
According to Mother, Makenna was usually a very "'touchy-feely'" child who liked to sit on people's laps and touch earlobes. Mother reported that they were going to be around several people and so she reminded Makenna to "'act like a lady.'" She told Makenna that it was not okay for anyone to touch her "'private parts'" or for her to touch anyone else. Mother reported that Makenna said that "'only daddy'" can touch her there. Since Father was not at home, Mother called Father to confront him about the matter. According to Mother, Father said that the child was mistaken and that "'kids make things up.'" He told Mother that there was no emergency and nothing happened.
Mother told DI Levine that later that night, after she put the children to bed, she spoke to Father again. Father told Mother to "'drop it'" and said it did not happen. According to Mother, Father said that he could go to jail because of these accusations. Mother reported that Father told her that he only "'adjusts himself"' and tickles the children on their genitals. Mother told Father that was not okay. He replied he was still going to give the children baths. Father told her that he would get tested for herpes.
Mother told DI Levine that the next day, Father took the children to school and brought them home from school. Mother observed that both Father and Makenna were agitated. The child was jumping up and down and said that she had a secret. She told Mother that she "'peed like boys at school'" with one of her friends. Mother clarified that Makenna meant standing and urinating rather than sitting down. Mother told the child that it was not okay to do that.
According to Mother, Makenna then said that she had another secret. Mother saw that Father was pacing up and down. Makenna told Mother that she was afraid Mother would get upset with her. Mother said that she would not get upset, but Father chimed in that he would be upset. Mother reported that Makenna then said "'daddy licky'" and "'Starbucks.'" Mother said she left the room with Father; he denied that anything happened. Then Mother talked with Makenna and Father. Makenna told Mother that Makenna and Father "'lick each other on their private parts.'" Mother reported that Makenna was very specific and said to Father, "'remember when you lock the door.'" Mother said that Jacob did not make any disclosures at the time. She said that when Jacob was interviewed later in the investigation, he disclosed that he touched Father's genitals when they would wash each other in the bath or shower.
Mother told DI Levine that she called DCFS and law enforcement. She then went with the children to the maternal grandmother's home, where she met with the police. She had to take Makenna for an examination. She then obtained a restraining order and took it to both of the children's schools. She said that Father was employed at the school that Makenna attended but was given a leave of absence.
On January 11, 2011, DI Levine interviewed Mother about the restraining order. Mother reported that she obtained a restraining order on November 8, 2010. The next day, she worked at a farmer's market and the maternal grandmother took the children home from school. When they approached the grandmother's street, Father was waiting on the corner. Father told maternal grandmother that he was taking the children to Chuck E. Cheese. Father brought the children home later that night. While he had the children, Mother called law enforcement. She also had a neighbor make a copy of the restraining order and serve Father with a copy when he returned, so there would be proof of service. The police came to the home and Father left. According to Mother, that was very upsetting to the children and they cried. Mother said that she talked to the children about the visit, and Jacob told her Father had said to the children that he was "'being sneaky'" in taking the children.
At Father's request, the juvenile court set the matter for a contested jurisdiction/disposition hearing, which was held from March 22 through March 25, 2011. At the hearing, Father testified at length. He then called Makenna and Jacob as witnesses. Each of the children testified in chambers out of the presence of their parents and their sibling.
Makenna was first asked if she ever talked to anyone about the licky game. She said "No." But she said "Yes" when asked if she had talked to social workers about the licky game, but could not remember what she told them. Makenna testified that she played the licky game with "my daddy" and nobody else. She nodded in the affirmative when asked if she ever blew in somebody's ear. She said, "I only do in my daddy's—."
Makenna testified that Mother did not tell her what to say "today" and did not tell her what to tell the judge about DI Levine. She answered "No" when asked if she had ever talked to DI Levine.
She testified that she played the licky game with Father, but that she did not remember what Father did in the game. She said that she did not have to do anything in the licky game. She played the licky game in her Mother and Father's room, but only Father was in the room when she played the game. She played the game in the bed. She played the licky game a lot, more than 10 times. She testified she did not like the licky game "because it tickles me . . . on my pee pee," pointing to her vaginal area. She stated, "He licks my pee pee and it tickles."
Father called Jacob as a witness. Jacob said that when he, Makenna and Father were showering together, Father never asked him to wash Father's private parts and he had "no idea" if Father ever asked Makenna to do so. Jacob testified that Father often washed his (Jacob's) and Makenna's private parts.
When asked, Jacob said that Mother did not tell him anything about what to say in court. Jacob testified that he did not remember if Makenna ever touched his penis or if he ever touched her vagina. He stated that he never kissed or licked her vagina and never told Mother that he did so. Jacob said that Makenna never licked his penis.
CSW Bessanova and DI Levine testified, having been called as witnesses by Father. Each of them was examined as to her qualifications for investigating the sexual abuse alleged in the petition and as to the manner in which she conducted her investigation.
Father also called Mother as a witness. The court sustained objections to the questions posed by Father's counsel. On cross-examination, Mother testified that she did not coach Makenna or Jacob to tell lies and did not believe that she in any way influenced Makenna to tell stories concerning her sexual abuse. On redirect, Mother testified that, on November 4, while the children were having a snack, she told Makenna that when Father had his brother or male friends over, she would like Makenna to wear shorts or a skirt, not just her underwear as she sometimes did around the house. Mother reminded the children that we never let anybody touch our private parts and we never touch anyone else's private parts. Mother said that was when Makenna disclosed to her what had happened.
The juvenile court found by clear and convincing evidence that Makenna had suffered severe sexual abuse by Father. (§ 361.5, subd. (b)(6).) The court stated that it found a factual basis to find true by the preponderance of the evidence the allegations in the petition, as amended, and sustained the petition as to all counts against Father. The court found the children to be persons described by section 300, subdivisions (b), (d) and (j) and removed them from Father's custody.
With regard to specific findings, the court found that Jacob was included as a person being at risk, based upon, inter alia, Father's egregious conduct for which he failed to take any responsibility. The showering together, the court found, gave Father further opportunity to violate Makenna and expose Jacob to highly inappropriate conduct. The court found Makenna to be highly credible, in that over a period of months, she gave clear, detailed and consistent disclosures to several persons, including the police, Allison, CSW Bessanova, DI Levine and the court. The court observed that Makenna was a young child, not quite five years old, but she qualified to give truthful testimony. According to the court, the evidence showed that Makenna and Father each had herpes and there was a reasonable possibility that Makenna contracted herpes from Father, but "[e]ven if she did not, the evidence is . . . overwhelming that [Makenna] ha[d] been sexually abused by her father."
As to Father's claim that Mother coached Makenna as to what to say, the court found that was not the case. The foremost basis for the finding, according to the court, was the clarity, detailed nature and consistency of Makenna's disclosures to several people. Also, the court observed, in their trial testimony, Mother, Makenna and Jacob each denied that Mother coached Makenna or Jacob as to what to say.
The court ordered the children be placed in the home of Mother under DCFS supervision. The court also found that it was in the best interest of both children to offer reunification services to Father. The court ordered monitored visitation at least once a week for Father in DCFS offices only. The children were to participate in individual counseling and, at the discretion of the therapist, in conjoint counseling, including with Mother. The court ordered Father to participate in individual counseling and in a DCFS approved program for perpetrators. The court set the next review hearing for September 23, 2011.
This appeal was pending at the time of the September 23, 2011 hearing. According to the minute order, of which we take judicial notice (Evid. Code, §§ 452, sub. (d), 459; Cal. Rules of Court, rule 8.252), the juvenile court terminated jurisdiction over Makenna and Jacob, granted Mother sole physical and legal custody of the children, and ordered one visit for 45 minutes per month by Father, with the visit to be monitored by a professional monitor. The court modified the restraining order issued December 3, 2010, to be consistent with the change in the terms of visitation for Father. The court's order does not render this appeal moot, in that our decision can have a practical impact on the parties. (See MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.)
DISCUSSION
A. Sufficiency of the Evidence of Sexual Abuse
Father contends the juvenile court's finding that Father sexually abused Makenna is not supported by substantial evidence and, therefore, the court's jurisdiction and disposition orders must be reversed. We disagree.
We review jurisdictional and dispositional findings to determine if there is any substantial evidence, contradicted or uncontradicted, which supports the juvenile court's decision. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433; In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) If substantial evidence supports the juvenile court's findings, we must affirm the court's decision. (In re Rocco M., supra, at p. 820.) "Substantial evidence" is relevant evidence which is "reasonable in nature, credible, and of solid value." (In re J.K., supra, at p. 1433.) In making the determination, we review the record in the light most favorable to the court's order, resolving conflicts in favor of the order, and drawing reasonable inferences from the evidence. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) "Evidence from a single witness, even a party, can be sufficient to support the . . . court's findings." (Id. at p. 451.) We do not "reassess the credibility of witnesses or reweigh the evidence." (In re S.C. (2006) 138 Cal.App.4th 396, 415.)
Father contends that Makenna's out-of-court statements of sexual abuse did not exhibit the indicia of reliability established by statute and by judicial opinion for admissible hearsay statements by a young child who has allegedly been sexually abused and is the subject of a jurisdictional hearing. (In re Lucero L. (2000) 22 Cal.4th 1227, 1247-1248; In re Cindy L. (1997) 17 Cal.4th 15, 18, 34-35.) As a result, Father claims, there was insufficient evidence to support the juvenile court's finding of severe sexual abuse, as defined in section 361.5, subdivision (b)(6), of Makenna by Father. We disagree.
Section 361.5, subdivision (b)(6), provides in part: "A finding of severe sexual abuse . . . may be based on, but is not limited to, . . . stimulation involving genital-genital [or] oral-genital . . . contact, whether between the parent . . . and the child or a sibling . . . of the child . . . with the actual or implied consent of the parent . . . ."
In In re Lucero L., supra, 22 Cal.4th 1227, the court held that "section 355 notwithstanding, the out-of-court statements of a child who is subject to a jurisdictional hearing and who is disqualified as a witness because of the lack of capacity to distinguish between truth and falsehood at the time of testifying may not be relied on exclusively unless the court finds that 'the time, content and circumstances of the statement provide sufficient indicia of reliability.' [Citation.]" (Id. at pp. 1247-1248, italics added.) In the instant case, however, Makenna was qualified as a witness who could distinguish between truth and a lie. At the request of Father's counsel when Makenna appeared as a witness at trial, counsel for DCFS questioned Makenna about her understanding of the difference between the truth and a lie. The juvenile court asked if there were any other questions and, hearing none, the court ruled that Makenna qualified as a witness. Father's counsel did not ask to inquire further and did not raise an objection. Having not objected to the finding, Father forfeited the issue of qualification of Makenna as a witness on appeal. (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.)
Makenna's testimony at trial constituted substantial evidence that Father sexually abused her. After being qualified as a witness, Makenna testified that she played the licky game with Father in the bed in her Mother and Father's room and that only Father was in the room when she played the game. She testified that she played the licky game a lot, more than 10 times. She testified she did not like the licky game "because it tickles me . . . on my pee pee," pointing to her vaginal area. She stated, "He licks my pee pee and it tickles." Due process concerns were satisfied, in that Makenna was subject to direct examination by Father's counsel, cross-examination by DCFS counsel, and redirect by Father's counsel. The juvenile court found that Makenna was credible and we may not disturb the court's credibility finding. (In re S.C., supra, 138 Cal.App.4th at p. 415.) Makenna's testimony was substantial evidence sufficient to support the juvenile court's finding that Father had sexually abused her. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
Contrary to Father's claims, the juvenile court also properly relied on Makenna's out-of-court hearsay statements reported by DCFS, medical professionals and the police as further evidence of sexual abuse by Father. Again, Lucero does not support Father's claims, in that the case can be distinguished on the facts. In Lucero, the juvenile court relied exclusively on the child's statements about sexual abuse to child welfare workers, as presented in a social study report by the child welfare agency to the court. (§ 355, subds. (b), (c), (d).) Here, Makenna's credible testimony corroborated the hearsay statements.
In re Cindy L., supra, 17 Cal.4th 15, the other opinion cited by Father, is also distinguishable, in that, unlike Makenna, the child in that case was determined to be incompetent to testify as a witness. The California Supreme Court set forth "requirements . . . applicable to admission of child hearsay statements in dependency hearings in which sexual abuse is alleged" and the child is incompetent to testify as a witness. (Id. at pp. 20, 29.) The requirements are that "(1) the court must find that the time, content and circumstances of the statement provide sufficient indicia of reliability; (2) a child must either be available for cross-examination or there must be evidence of child sexual abuse that corroborates the statement made by the child; and (3) other interested parties must have adequate notice of the public agency's intention to introduce the hearsay statement so as to contest it." (Id. at p. 29.) Although the holding in In re Cindy L. is not directly applicable to the instant case, nevertheless, all three requirements were satisfied here. As to the latter two requirements, Makenna was available for cross- examination, and all parties had adequate prior notice that DCFS would proffer the reports at the contested hearing.
The first requirement, reliability of the hearsay statements, originated from the general rule is that "hearsay evidence is inadmissible because it is inherently unreliable." (In re Cindy L., supra, 17 Cal.4th at p. 27.) With respect to Makenna's hearsay statements, the juvenile court found "that the time, content and circumstances of the statement provide sufficient indicia of reliability." (Id. at p. 29.) The court found that, as reported by the various persons who interviewed Makenna over the months of the investigation, her statements were "consistent as to what happened, where it happened, when it happened, what she was wearing, the frequency and, importantly, how it is she felt." Review of Makenna's hearsay statements reveals ample evidence to support the court's finding of reliability.
Makenna's account of playing the licking game with Father is detailed, specific and consistent as given on November 5, 2010 to Officers Vardanian and Mikel and to Allison, on November 11 to CSW Bessanova, on December 8 to Officer Smith, and in early January 2011 to DI Levine. As the foregoing discussion reveals, the evidence of Father's sexual abuse was substantial and, in fact, overwhelming. Makenna's trial testimony was consistent with her out-of-court statements. The court properly found that Makenna's hearsay statements were sufficiently reliable to justify an exception to the hearsay rule. (In re Cindy L., supra, at pp. 27-29.)
Having determined that substantial evidence overwhelmingly supports the juvenile court's finding of sexual abuse, we need not address Father's claim that, because Jacob did not confirm Makenna's statements about sexual contact with him, Makenna was not credible. Father also argues that Makenna's statements were unreliable, in that Mother told Makenna what to say as part of her effort to maintain custody in the parents' pending divorce case. The evidence refutes the argument. At the trial, Mother, Jacob and Makenna each independently testified that Mother did not tell Makenna what to say. In any event, although there may be conflicting or contradictory evidence or inferences that could be drawn from the evidence, our review is limited to determining if there is any substantial evidence, whether it is contradicted or uncontradicted, which supports the juvenile court's decision. (In re J.K., supra, 174 Cal.App.4th at p. 1433; In re Rocco M., supra, 1 Cal.App.4th at p. 820.)
The juvenile court's finding that Father committed serious sexual abuse on Makenna is supported by substantial evidence. Therefore, we will not disturb the juvenile court's jurisdictional and dispositional findings. (In re J.K., supra, 174 Cal.App.4th at p. 1433; In re Rocco M., supra, 1 Cal.App.4th at p. 820.) B. Conflict of Interest of the Children's Court Appointed Attorney
Father also contends that the children's court-appointed attorney had a conflict of interest and the juvenile court should have removed her. (Cal. Rules of Court, rule 5.660(b) & (c)(1)(A), (B).) Father characterizes Jacob's interests as differing from and in conflict with Makenna's interests, in that there was no finding that Father sexually abused Jacob and, therefore, no reason Jacob should be removed from Father's custody, especially given that Jacob wanted to be with Father.
We note that Father did not raise an objection to the children's joint representation during the dependency proceedings. Unlike the right to appointed counsel of a criminal defendant or defendant in a juvenile delinquency proceedings, the children's right to appointed counsel in juvenile dependency proceedings is statutory, not constitutional. (In re Celine R. (2003) 31 Cal.4th 45, 59.) Claims of error in appointing counsel cannot be raised for the first time on appeal. Father's failure to object in the juvenile court proceedings resulted in forfeiture of the issue on appeal. (In re Riva M., supra, 235 Cal.App.3d at pp. 411-412.)
In any event, the juvenile court's appointment of only one attorney to represent both Makenna and Jacob did not constitute reversible error. A juvenile court is not required to appoint separate counsel for a minor unless there is an actual conflict of interest, not simply a potential conflict of interest, between the minors represented by the same appointed counsel. (§ 317, subd. (c); In re Celine R., supra, 31 Cal.4th at p. 56.) When there are multiple siblings involved, the fact that only one child wants to be with a parent does not create an actual conflict of interest requiring the juvenile court to appoint counsel for that child separate and independent from counsel appointed for the child's siblings. (In re Celine R., supra, at pp. 56-57.) Pursuant to section 317, subdivision (c), a "primary responsibility" of appointed counsel is "to advocate for the protection, safety, and physical and emotional well-being of the child." "[T]he obligation of counsel for a dependent minor is to pursue whatever is in the minor's best interest," whether or not it is what the minor wants. (In re Candida S. (1992) 7 Cal.App.4th 1240, 1253.) Nothing precludes appointed counsel from, for example, informing the juvenile court that one child wants an arrangement with a parent that differs from an arrangement for the child's sibling. (Ibid.)
In addition, while the evidence may more strongly support a determination that removing Makenna from Father's custody would be in her best interest, there is an evidentiary and associated statutory basis for advocating that removing Jacob would be in his best interest. The evidence reveals that Father exposed Jacob to Father's inappropriate conduct with Makenna while the children showered with him. It also raises questions about Father's conduct in washing Jacob's genitals and having Jacob wash Father's genitals. Section 300, subdivisions (b), (d) and (j), when considered together, protect the sibling of a child who has been sexually abused by a parent as well as the victim. Pursuant to section 361.5, subdivision (b)(6), a finding of severe sexual abuse is based upon specified sexual acts, "whether between the parent . . . and the child or a sibling . . . of the child." The juvenile court found that the definition applied in the instant case. Thus, not only would Makenna be a victim of the sexual abuse, but Jacob also would be a victim. Accordingly, we conclude that there was no actual conflict of interest between Jacob and Makenna and, thus, the court was not required to appoint separate counsel. (§ 317, subd. (c); In re Celine R., supra, 31 Cal.4th at p. 56.)
DISPOSITION
The orders are affirmed.
JACKSON, J. We concur:
PERLUSS, P. J.
WOODS, J.