Opinion
G038197
4-25-2007
RYAN P., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Juvenile Defenders and Dennis McNerney for Petitioner. No appearance for Respondent. Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Real Party in Interest, Orange County Social Services Agency.
NOT TO BE PUBLISHED
In his petition under California Rules of Court, rule 8.450, Ryan P. (father) challenges the courts order adjudicating a Welfare and Institutions Code section 387 supplemental petition only insofar as it sustains a sexual abuse allegation which, father argues, is unsupported by sufficient evidence. The order was issued at the hearing in which the court also scheduled a .26 hearing to consider a permanent plan for five-year-old Ethan P. There are no issues pertaining to mother. Moreover, father does not contest the courts true findings as to the remaining allegations of the supplemental petition, nor does he deny these allegations provide a legitimate basis for continuing dependency jurisdiction, and he does not assign error respecting the dispositional order.
All further references to rules are to the California Rules of Court.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated. The selection and implementation hearing pursuant to section 366.26 is designated the .26 hearing.
"All court orders, regardless of their nature, made at a hearing in which a section 366.26 permanency planning hearing is set must be challenged by a petition for extraordinary writ." (In re Merrick V. (2004) 122 Cal.App.4th 235, 247; rule 8.452.)
After providing the parties an opportunity to fully brief and orally argue the issue, we deny the petition. As discussed more fully post, Ethans disclosures of his fathers sexual abuse, consistently repeated to different people at different times, provide a sound evidentiary basis for the order sustaining the allegation.
FACTS
Orange County Social Services Agency (SSA) took then 18-month-old Ethan into protective custody on October 15, 2003, based on allegations of general neglect and caretaker absence. Ethan and his mother had for some time been homeless, most recently staying with the maternal grandparents, but mother had been asked to leave the residence, and friends with whom she stayed for a few days thereafter likewise told her she was no longer welcome after they found among her possessions drug paraphernalia, including syringes, readily accessible to children. When Ethan was taken into custody, mothers whereabouts had been unknown for two days.
Both parents had extensive histories of substance abuse, fathers criminal record included drug-related and DUI offenses, and in the nine months preceding the dependency, SSA had had three contacts with the family pertaining to reports of general neglect. Allegations of the amended petition filed on Ethans behalf, to which father pleaded no contest, addressed mothers bi-polar mental illness, her failure to complete court-ordered drug testing and domestic violence classes, fathers continuing use of illegal drugs despite his completion of a substance abuse program and an alcohol abuse program, the parents "ongoing conflictual relationship," including physical violence in the presence of the child, and fathers acknowledged inability to provide care for Ethan. The parents stipulated to disposition, including orders for de facto parental status of the maternal grandparents, Elizabeth and John E., and Ethans placement with them.
We need not detail developments during the ensuing one and one-half years of family reunification services. At the 18-month review hearing in June 2005, SSA was sufficiently satisfied with mothers progress that it recommended and the court ordered Ethan returned to her under a family maintenance plan. Mother was then living with Pete F., the man with whom she had had a child, Angelina, during the dependency and whom she eventually married. Father was given enhancement services, including substance abuse treatment and testing.
For about another year, there appeared to be little cause for concern, and SSA anticipated the dependency would be terminated. However, underneath the surface, things were not as they seemed. SSA found out, inter alia, that mother, Pete F., and father were again using illegal drugs, and shortly thereafter, the agency completed an investigation substantiating Ethans report of his fathers sexual abuse. In a supplemental petition under section 387, as twice amended, SSA alleged the parents relapse into substance abuse and Ethans statements that his father had digitally penetrated his anus, forced him to reciprocate by digitally penetrating fathers anus, and urinated and defecated on him. Ethan was redetained and placed with Elizabeth and John.
The facts regarding the sexual abuse allegation will be summarized in the legal discussion post, as necessary to fathers insufficient evidence challenge. For now, we simply note that at the jurisdictional and dispositional hearing on the supplemental petition, the court articulated its reasons for finding the sexual abuse allegations true by a preponderance of the evidence. Continuing the child as a dependent, it vested custody with SSA, denied the parents further reunification services, and scheduled a .26 hearing to determine a permanent plan for Ethan.
DISCUSSION
A section 387 supplemental petition is filed by SSA to obtain an order to remove a dependent child from the physical custody of the parent for out-of-home placement when it can be shown that a previous disposition has not been effective in the protection of the child and a more restrictive level of custody is sought. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1075.) In this case, father contends a single allegation in the second amended supplemental petition, the sexual abuse allegations, is unsupported by substantial evidence. He concedes, as he must, that the applicable standard for the trial courts adjudication of the petitions allegations is a preponderance of evidence (rules 5.684(f) & 5.565(e)(1)), and that the substantial evidence test applies to appellate review. (In re Javier G. (2006) 137 Cal.App.4th 453, 458-459.) Father argues there is no substantial evidence of the alleged sexual abuse because the evidence was inherently unreliable, unbelievable, and unacceptable to a reasonable mind. He illustrates this argument by isolating individual pieces of evidence, examining them in relation to other pieces of evidence, and attempting to find credibility flaws through the process of comparison or contrast. The problem with fathers approach is that the trial court performed precisely that function in arriving at its true finding, and we are not empowered to do it over from fathers point of view. "`The ultimate test [of substantial evidence] is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)
The record here shows Ethan had many unmonitored visits with father, even at a time when the courts order was for monitored visitation. In July 2006, mother reported to two senior social workers, Stephanie Daleo and Sheri McCluskey, that Ethan had told her and Pete, separately, that father had played a secret "butt picking" game with him, in which father would stick his finger in Ethans anus, and then Ethan would "payback" by sticking his finger in fathers anus. Ethan said the acts had occurred at fathers apartment and at the paternal grandfathers home. That same month, Ethan told McCluskey he played the "butt picking game with daddy," and described it: "[H]e picked my butt and I picked his butt." Ethan further stated father put his finger between Ethans butt cheeks and then Ethan had to "payback" and pick fathers butt. He said the game had occurred more than once and had happened at the paternal grandfathers house. In September 2006, the maternal grandfather, John, with whom Ethan lived, reported that Ethan had been talking about father touching his buttocks, saying, "Daddy hurts my butt. He puts his finger in and if I cry he says he will leave it there all night." However, when interviewed by the Child Abuse Services Team (CAST) that same month, Ethan denied sexual abuse and did not disclose any information consistent with what he had told others.
In October 2006, Ethan told Daleo father had "pooped" and "peed" on him. (Mother testified at the hearing that Ethan had separately reported those acts to her.) In November, fathers therapist observed that Ethan froze and became anxious and angry and hesitant to share information when talking about father. Also in November, John reported that Ethan had said several times he did not want to see father again, saying he was mean and refused to stop doing mean things to him, even when Ethan said stop, over and over again. According to John, Ethan continued to express his anger at father in December.
At the hearing, mother testified she and Pete found Ethan sitting naked on the toilet, sticking his finger in and out of his butt. When asked where he learned to do that, Ethan said "daddy Ryan" did it to him and showed him how to do it. Mother found Ethan doing the same thing a few more times. Over time, Ethan continued to tell her, Pete, and the maternal grandparents more details about the sexual abuse, and he continued to explain how he and father played the butt picking game and paybacks. Mother testified Ethan had described fathers sexual abuse to her consistently, at least a dozen times, always giving the same details. He never confused father with Pete, always clearing designating the latter as "Pete" or "Pete Daddy" and father as "Daddy Ryan." Mother further testified that Ethans behavior had become increasingly aggressive toward her and Angelina after visits with father.
This is more than a mere scintilla of evidence supporting the courts order sustaining the sexual abuse allegation. The child repeatedly described the sexual activity to several people on several different occasions, and he consistently identified father as the perpetrator. He said the butt picking game had occurred more than once and at different sites, and he told at least two people that father had urinated and defecated on him. Father had the opportunity to perform the acts, since he and Ethan spent several unmonitored nights or weekends together.
Under section 300, subdivision (d), the juvenile court may take jurisdiction if a child has been sexually abused by a parent or there is a substantial risk of such abuse. Sexual abuse includes anal penetration or intrusion or any intentional touching of the buttocks for purposes of sexual arousal or gratification. (Pen. Code, § 11165.1, subds. (a), (b)(1), (b)(3), (b)(4).)
True, as father argues, father denied sexual abuse; Ethan made no disclosure during the CAST interview; there was evidence mother and Pete engaged in sexual activity in front of their daughter, Angelina; mother had made some sexually provocative videos of her butt and some intimate butt-focused activities with Pete; Ethan was not always afraid of father, but was often excited to see him and happy to be with him; and SSA produced no physical evidence of the alleged sexual abuse. (See, e.g., In re Nada R. (2001) 89 Cal.App.4th 1166, 1177 [finding of sexual abuse allowed where only evidence is childs statement].) But all of these points and the inferences assigned to the evidence by father were addressed by fathers counsel in closing argument, and the court was not required to accept fathers viewpoint. It simply needed a preponderance of the evidence to support its finding. In this respect, it noted, inter alia, that Ethan was clearly afraid of father, and although the child may have been exposed to some inappropriate sexual activity in mothers home, he had never talked about mother engaging in sexual acts. Rather, he had consistently asserted fathers inappropriate acts and his own fear and concern regarding those acts. We cannot say no reasonable finder of fact could have made this determination.
DISPOSITION
The petition is denied.
We concur:
SILLS, P. J.
OLEARY, J.