Opinion
C091724
10-13-2021
In re E.J. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. A.M., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. JD239448, JD239449, JD239450, JD239451
BLEASE, Acting P. J.
Appellant A. Miller, former probate guardian of the four minors (appellant), challenges the juvenile court's order sustaining the dependency petition and terminating the guardianship over the minors. (Welf. & Inst. Code, §§ 300, 358.) We will affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
“ ‘In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order.' ” (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
This case involves four minors, G.J., T.J., O.J., and E.J. (the minors), J.J. (mother), C.J. (father), and the minors' guardians, A. Miller (appellant) and L. Miller (the Millers). G.J. is male and his three siblings are female. Between January 2014 and September 2017, mother and the minors lived in the home of the Millers because the family was homeless and suffered from food insecurity. Father also lived in the Millers' home on and off during that period until mother kicked him out. Thereafter, mother moved her new boyfriend into the home. After a domestic violence incident between mother and her boyfriend, the Millers gave mother the choice of continuing to live in their home without her boyfriend or moving out with her boyfriend. Mother chose to move out, at which point the Millers, who the minors referred to as their grandparents, assumed the role of primary caregivers to the minors. On April 13, 2018, the family court appointed the Millers as co-guardians over the minors.
Six months later, the Sacramento County Department of Child, Family and Adult Services (Department) received a report that appellant hit O.J. (then 11 years old and developmentally delayed) in the face and touched and rubbed her breasts at night when he put her to bed. During an interview, O.J. stated appellant touched her breasts under her clothing while putting lotion on her, he did so “a lot of times, ” and he asked her “does that feel good, ” to which she responded, “No.” It was noted that O.J. dropped her head and curled up her body when talking about the touching. The minors' clinician, Stephanie Hutchins, who provided counseling for O.J. and the oldest minor, E.J. (then 14 years old), stated her concerns about the reported inappropriate touching and reported E.J. had been demonstrating an extreme amount of depression and suicidal ideation, causing Hutchins to request that appellant take her for a mental health assessment and possible psychiatric hold. The two remaining minors, T.J. (then nine years old) and G.J. (then six years old), were interviewed but denied any inappropriate touching.
O.J.'s foster mother later contacted the social worker to report that O.J. stated she had only told the police officer that appellant touched her under her bra and she did not tell the officer appellant applied cream to her vagina and asked her if she had her period.
On October 24, 2018, appellant was interviewed by the social worker and Deputy Jacob Thrall. Appellant stated his wife was in the home and helped with some of the minors' needs, but he was the primary caretaker. He stated he sometimes rubbed lotion on O.J. because it helped her go to sleep and claimed he only did it because O.J. asked him to do so. He stated he rubbed lotion all over O.J.'s body, including her breasts. Appellant also stated that O.J. and T.J. did not know how to properly wipe themselves after using the bathroom and were getting a lot of rashes and infections when he first started caring for them. He helped the minors in the bathroom to show them how to wipe properly, he checked their vaginal areas for rashes, and he applied ointment on their vaginal areas if they had a rash. He felt his actions were not inappropriate and he did nothing wrong. Appellant also reported he took E.J. for a mental health assessment at the request of her therapist. E.J. was admitted to the hospital and appellant did not know when she would be discharged.
Social worker and Forensic Interview Specialist Sarah Leatherby conducted SAFE (Special Assault Forensic Evaluation) interviews with the three younger minors on November 5, 2018. O.J. reported appellant rubbed coconut oil all over her body, including her breasts, that he did so “all the time, ” “like a thousand times, ” that he had nothing on his hands when he rubbed her breasts under her bra, and that he rubbed her breasts in her room and in appellant's room. O.J. stated that appellant also asked her to put lotion on his back. O.J. again reported that appellant asked her, “Do you like it?” or “Does it feel good or no?” Appellant would tuck her into bed, give her a kiss and say goodbye, and then touch her breasts. O.J. stated she did not like it and it felt weird, and when she told appellant she did not like it, he stopped. She also reported that appellant put cream on her vagina with his finger “all the time, ” and there was no one else in the room when he did so. O.J. said her stomach hurt whenever she talked about it.
T.J. also reported that appellant rubbed coconut oil all over her body and her breasts “often” and he checked her vagina for rashes and put cream on her vagina. She stated she never needed help using the bathroom and no one had ever needed to help her to clean herself after she used the bathroom. T.J. reported appellant put lotion and ointment on her for insect bites and, if she had a rash, he would use his finger and put it on her private area to “make it feel better.” T.J. stated L. Miller was in another room watching television when appellant put ointment on her vagina. She stated the door was always open when appellant put lotion on her and O.J., but appellant shut the door when he put lotion on E.J.
G.J. reported no sexual abuse, molestation, or inappropriate touching. He also stated that no one helped him shower or put lotion on him because he knew how to do so on his own.
The social worker interviewed E.J., who denied any inappropriate touching and stated she believed there had been a misunderstanding, noting appellant put lotion on her sisters' bodies only when they had dry skin or were sunburned, and put ointment on their vaginas when they had rashes. E.J. stated appellant put lotion on her back because she could not reach but did not put lotion on the front of her body. She noted L. Miller did not apply lotion or ointment to the children because L. Miller had very bad eyesight.
The minors were removed from the Millers' care and custody. O.J. and T.J. were placed in a foster home together, G.J. was placed in a different foster home, and E.J. was placed in a group home due to the fact that she had been on a psychiatric hold.
On November 9, 2018, the Department filed dependency petitions on behalf of the four minors pursuant to section 300, subdivisions (d) and (g) alleging sexual abuse of O.J. and T.J., and substantial risk of sexual abuse of E.J. and G.J., by appellant and leaving all four minors with no provision for support in that the parents' whereabouts were unknown. On November 14, 2018, the juvenile court ordered the minors detained and further ordered the Department to offer reunification services to the Millers.
Jurisdiction/Disposition Report
According to the jurisdiction/disposition report, the social worker located mother, who informed the social worker she spoke with appellant and learned the minors were removed from his care. Mother reported appellant stated he would never hurt the children and that he applied ointment to the minors' vaginas because they had bad rashes and were scratching “really bad.” Appellant told mother that L. Miller was present in the room when he applied ointment to the minors' vaginas. Mother noted she put diaper rash cream on a baby because a baby could not apply it themselves and wondered why appellant would put ointment on O.J.'s and T.J.'s vaginas when they were 11 and nine years old, respectively.
The social worker also located father, who reported that T.J. informed him appellant “sometimes... puts lotion on my private parts because it makes me feel better.” T.J. stated appellant would do so when she got hurt and that it happened a lot. Father noted T.J. was old enough to apply ointment to her own body. When father attempted to confront appellant via telephone, appellant would either “get short” or hang up. Father stated he saw appellant apply ointment to O.J.'s “private areas” in 2015 and when father told him to stop, appellant threatened to kick him out of the home. Father noted appellant had a tendency to “reach[] out and pinch[] butts” and forced the children to hug him. Father stated he previously confronted appellant about his conduct, but appellant threatened to kick the parents out of the home.
The social worker interviewed the minors. G.J. stated he wanted to live with his parents and the Millers. T.J. stated she did not talk with or see mother often. When asked what happened when she got in trouble, T.J. stated she would get sent to her room and spanked by L. Miller with a belt on her butt or her arm. O.J. refused to talk with the social worker. E.J. stated mother was a great mom but father “was never around” and she hated him because he was abusive and an alcoholic who physically and emotionally abused her. E.J. stated she would like to live with the Millers “because they are the only people that want me.”
According to the sheriff's department's report authored by Deputy Thrall, appellant stated he only touched O.J.'s breasts when he put lotion on her before bedtime and occasionally when O.J. asked him to rub her bare breasts. He put cream on her vagina when she had a rash and also wiped her anus to show her the proper way for females to wipe themselves after going to the bathroom. Appellant stated O.J. had serious emotional problems and the mental capacity of a seven- or eight-year-old. He stated O.J. got scared a lot and he occasionally slept in her bed and rubbed her back to make her feel better. He described O.J. as an “exhibitionist, ” stating she did not like to wear clothes and often took her shirt off and slept in her underwear.
Appellant reported he once found E.J. had been wearing the same underpants for a week so thereafter he had her bring him a clean pair of panties each night to make sure she was wearing clean underwear. He also reported a time when T.J. had a urinary tract infection and told him her vagina hurt. When he checked her he found feces in her vagina. Once he discovered the girls were wiping the wrong way, he taught them how to wipe from front to back. He also reported he occasionally put cream on O.J.'s and T.J.'s vaginas when they had rashes, but he did not put cream on E.J. because she was old enough to do it herself. He also denied wiping the minors noting “they are not three years old.” Appellant stated he put lotion on T.J. and O.J., noting O.J. asked him to put lotion on her every night. He claimed that, when O.J. said she wanted lotion on her breasts, he asked her if she was sure she wanted him to rub there and she said yes. He added, “What am I supposed to do when she asks me to put lotion on her breasts? Say no?” Appellant also reported he applied lotion to T.J. and O.J. approximately 10 times in the past year, but he had never taken the minors to the doctor to address their dry skin as it “comes and goes.”
L. Miller reported appellant applied lotion to O.J. and T.J. two to three times per week, usually when they were itching. She stated the minors did not have good hygiene practices and she believed that was the cause of their urinary tract infections. L. Miller stated she was occasionally present when appellant applied ointment to the vaginas of O.J. and T.J. and that the minors specifically asked appellant to apply it because “he did it better.” When asked why the minors could not apply the ointment themselves, L. Miller recalled that appellant showed them how to apply it, but the minors did not want to do it themselves.
First and Second Addendum Reports
The Department filed a first addendum report providing the court with information regarding mother's home inspection, the details of her safety plan if the minors were to be placed with her, and mother's boyfriend's criminal background. The Department noted concerns regarding possible domestic violence between mother and her boyfriend and requested additional time to further assess mother and her boyfriend for possible placement.
The second addendum report provided additional information regarding mother's boyfriend's criminal history and the minors' relationship with mother and dispositional recommendations. The report noted appellant lacked insight and understanding as to how his actions toward O.J. and T.J. were inappropriate and the issues that led to the removal of the minors, and he had difficulty maintaining appropriate and healthy boundaries with the minors. The Department concluded the minors could not be safely returned to L. Miller's care because appellant lived in the home with her, L. Miller was aware appellant was applying lotion to the minors' breasts but considered it to be “normal” care, and L. Miller was also aware appellant was applying ointment to the minors' vaginas because “he did it better.” The report noted L. Miller lacked insight regarding appropriate caretaker boundaries and failed to protect the minors or assist with teaching them how to apply lotion or properly care for their own hygiene needs.
The Department recommended that the court terminate the guardianship and determined that, while there was a substantial risk of detriment if the minors were returned to mother, the minors would be safe in mother's care with a safety plan in place. The Department further determined that mother would benefit from reunification services and, although father was not requesting custody, discretionary services to him would be in the best interests of the minors.
First Amended Petitions
On February 5, 2019, the Department filed first amended petitions pursuant to section 300, subdivision (d) alleging L. Miller failed to adequately protect the minors in that she knew or should have known appellant sexually abused O.J. and T.J. on more than one occasion and she continued to allow appellant to have unsupervised access to the minors.
Third and Fourth Addendum Reports
The third addendum report filed February 20, 2019, provided the court with information regarding a 2017 domestic violence referral between mother and her boyfriend, the probate guardianship, a safety plan developed with appellant, and medical information regarding O.J. and T.J. The Department recommended against placement of the minors with mother until completion of further assessment.
The fourth addendum report filed March 7, 2019, contained information regarding the medical records for O.J. and T.J. The report noted that T.J. had been seen on November 14, 2017, for a urinary tract infection and was prescribed Amoxicillin. The medical records indicated “a general inspection of the child's skin was found to be normal.” T.J. was again seen on March 9, 2018, March 23, 2018, June 5, 2018, and December 18, 2018, and, on each occasion, a general inspection found her skin to be normal. O.J. was also seen on several occasions, and each time her skin was found to be normal.
Contested Jurisdiction Hearing
The contested jurisdiction hearing commenced on March 8, 2019. Deputy Thrall testified regarding his October 24, 2018 interview of appellant. Deputy Thrall testified that appellant said he applied lotion on the backs of O.J. and T.J. on a nightly basis and he also applied it to O.J.'s breasts because she asked him to do so. Appellant said nothing to Deputy Thrall about the children having a skin condition or issues with sunburn. Deputy Thrall confirmed appellant's statement, “What am I supposed to do when she [O.J.] asked me to put lotion on her breasts? Say no?” Appellant told Deputy Thrall that L. Miller did not have much interaction with the minors because she had memory problems and issues with her vision. Appellant stated T.J. had had a urinary tract infection and, when appellant checked her vagina, he discovered some feces likely due to the fact that T.J. was wiping back to front instead of front to back. Appellant taught O.J. and T.J. the correct way to wipe.
Deputy Thrall also testified regarding his interview of O.J., during which O.J. stated appellant usually applied lotion during bedtime. Appellant applied it to O.J.'s back but when he applied it to her breasts, she told him to stop and he stopped. O.J. said it felt “weird” when appellant applied lotion to her breasts.
Deputy Bao Mai testified that she interviewed L. Miller, who stated the minors had very fair and sensitive skin and would get sunburned so appellant would apply lotion to their arms, backs, and legs. L. Miller stated that O.J. could not apply the lotion herself because she had the mental capacity of a seven-year-old so appellant would do it for her. L. Miller also stated that when T.J. saw appellant applying lotion to O.J., she wanted appellant to apply lotion to her as well.
School psychologist Pa Dipad testified she evaluated O.J. to determine if she continued to qualify for special education services. Dipad testified that O.J. was diagnosed with attention deficit hyperactivity disorder (ADHD) and a learning disability and some cognitive functioning issues. Dipad confirmed O.J.'s teachers never raised any concerns about O.J. misreporting or misinterpreting interactions with other students or lying, and appellant never raised any concerns about O.J. lying or telling untruths.
Social worker Jennifer Klimek testified regarding her interview of O.J. on October 24, 2018, regarding an allegation of sexual abuse. Klimek testified that O.J. spoke in a baby voice and covered her face with her hair, and she presented as developmentally delayed, meaning she presented as immature and did not act like a typical 11-year-old. O.J. stated she had been slapped in the face by appellant “a long time ago” and “maybe a year ago.” O.J. also told Klimek that appellant touched her breasts with his hand “a lot of times” when he was putting her to bed at night. She also said appellant asked her, “Does it feel good?”
Klimek testified she spoke with Stephanie Hutchins, someone who provided counseling for O.J. and E.J. at appellant's home. Hutchins told Klimek that appellant was the primary caretaker of the minors and that O.J. had developmental delays due to past trauma. Klimek spoke with T.J., who denied being touched in her private areas. Klimek also spoke with G.J., the youngest of the minors and a male. G.J. also denied being touched in his private areas. Klimek testified she spoke with appellant, who stated he sometimes rubbed lotion on O.J.'s body because she asked him to and because it helped her go to sleep. Appellant never mentioned anything about the minors having dry skin. Appellant also told Klimek that O.J. and T.J. did not know how to properly wipe themselves after going to the bathroom and they would get “a lot of rashes and infections, ” so he would apply ointment to their vaginal areas. When Klimek asked appellant for information about the last time he took the minors to see a doctor, appellant stated that most of the appointments were for strep throat and “there was [an] appointment for urinary track [sic] infection.”
Klimek interviewed E.J., who denied any touching of her private areas and stated appellant put lotion on her back because she could not reach. E.J. stated appellant applied lotion to O.J. and T.J. when they had a sunburn or dry skin and put ointment on their vaginal areas because they “get rashes.” However, appellant never said anything to Klimek about the minors having sunburn or dry skin. E.J. also stated that L. Miller did not apply lotion or ointment because she had very bad eyesight.
Appellant's sexual abuse counselor, Diana Sarabia, testified that appellant completed 10 sessions of individual counseling, during which he told Sarabia he was putting “medication” on the minors' vaginas and chest area because the minors had rashes in their private parts and eczema on their bodies.
Social worker Jessica Andrews testified that, in formulating her assessment and her recommendation that the court sustain the allegations in the dependency petitions, she considered the statements made by the minors and L. Miller, and the statements made by appellant to her and to law enforcement, including that he rubbed lotion on the minors' breasts as a caretaker function because they had dry skin and scratched themselves until they bled. Andrews did not find appellant's statements to be credible when she viewed them against the medical and other records in the case and did not find any information to corroborate that the minors had dry skin, eczema, or sunburns that required lotion or medication to be regularly applied to their bodies. She also felt there was no evidence in the medical records to corroborate appellant's claim that he needed to apply ointment to the minors' vaginal areas when they had urinary tract infections. While she admitted that O.J. might need assistance applying lotion or ointment, Andrews felt the fact that the minors were able to do things for themselves, such as brushing their teeth, demonstrated they were capable of applying lotion and ointment to their own bodies.
Fifth Addendum Report
On March 22, 2019, the Department filed a fifth addendum report informing the court about recent disclosures made by O.J. and T.J. following a visit with the Millers. Both minors reported that appellant rubbed coconut oil on their vaginas.
On March 25, 2019, the Department filed petitions for termination of guardianship over the minors.
On April 2, 2019, the contested jurisdiction/disposition hearing was briefly halted and then continued after the Department received information that, on March 20, 2019, E.J. disclosed to her therapist an incident of sexual abuse by appellant. It was reported that, while E.J. and her siblings were at appellant's home the previous summer, E.J. had some bumps or a rash near her buttocks and upper thigh area. Appellant offered to apply lotion or ointment to the affected areas. E.J. told appellant she did not want him to, but appellant became angry so E.J. allowed him to put ointment on her even though she did not want him to and she felt uncomfortable. E.J. also reported to her therapist that if she did not take a shower when appellant told her to, appellant would make her take off her clothes in front of him in the bathroom as he watched, and that appellant told E.J., “Even if you wanted to have sex with me, I wouldn't. Come see me when you're 18.”
On April 16, 2019, the court trailed the hearing on the petition to terminate guardianship to follow the contested jurisdiction/disposition hearing, which was thereafter continued pending completion of the emergency response report regarding the recent disclosures by the minors.
Sixth Addendum Report
According to the sixth addendum report, emergency response social worker Savyna Simpson-Trice conducted an unannounced visit on March 31, 2019, and interviewed O.J. and T.J. Both minors reported appellant put “itching lotion” on their vaginas and put lotion such as cocoa butter on their bodies because of their dry, flaky skin. The minors described the “itching lotion” as a cream for rashes, and told Simpson- Trice that they would ask appellant to apply it because they had rashes on their vaginas from not wiping themselves after using the bathroom and they did not feel they were old enough to put it on themselves. The minors stated appellant applied the “itching lotion” on “the sides, not inside” of their vaginas. They also stated L. Miller was always in the kitchen or in her bedroom when appellant applied the cream. T.J. reported she did not like appellant putting cream on her vagina and “it did not feel good.”
Simpson-Trice also spoke with the reporting party who stated that, after visiting with appellant, O.J. became emotional because she wanted to go back to live with the Millers. Then O.J. reported that appellant put lotion on her breasts and coconut oil on her vagina and gave her and T.J. gifts. T.J. became upset with O.J. for disclosing the information.
On April 10, 2019, Simpson-Trice met with E.J. at school to discuss her recent disclosure to her therapist. E.J. stated appellant “was very controlling, dominant and OCD.” E.J. reported that when she was living with the Millers, appellant would put ointment on T.J. and O.J.'s vaginal areas and would force E.J. to let him do the same to her, telling E.J. “she had something wrong with her vaginal area and needed ointment on it.” E.J. told appellant “no” but he would insist and become angry and she did not want to get in trouble. E.J. stated, “I have mental issues and I could not stand him being upset and being pushy, so I let him put the ointment on, ” clarifying that he applied the ointment to her bikini area, not her vagina. E.J. also reported that if she did not get in the shower by a certain time, appellant would threaten to rip off her clothes and put her in the shower himself. She further reported that, on one occasion, appellant dragged her into the bathroom and cornered her and told her to take off her clothes. When E.J. refused, appellant became upset and grabbed her by the collar of her shirt. E.J. began screaming until appellant let go and left the bathroom. She stated that, during the second year of living with the Millers, appellant would say to her, “No matter what you do, you can never have sex with me. But once you turn 18 that [is] a different story.”
Second Amended Dependency Petitions
On May 14, 2019, the Department filed second amended petitions pursuant to section 300, subdivision (d) adding allegations that E.J. had been sexually abused by appellant on more than one occasion.
Continued Contested Jurisdiction Hearing
The continued jurisdiction/disposition hearing recommenced on May 14, 2019, with social worker Andrews returning to testify. Andrews testified she received information about E.J.'s disclosures of sexual abuse from Erin McManus, a social worker in E.J.'s group home, who summarized what E.J. disclosed to her. When E.J. was asked why she took so long to report the abuse, she stated “she was processing the abuse of her siblings and that she didn't understand the extent of abuse that she has endured.”
E.J. testified she told her therapist that appellant touched her bikini area and it made her feel uncomfortable. She explained that she told McManus, “I was told I had bumps around that area. I personally didn't see anything, and I didn't feel anything. It wasn't bugging me. So to be told that I did, and to be offered to put cream or ointment on it, I said no. I could do that myself or that I was okay. But I was insisted upon, and because I didn't want to get in trouble or to upset [appellant], I said yes.” E.J. testified appellant took “a little longer than it would take originally to apply ointment” and she “just wanted it to be over.” It made her feel uncomfortable and it “didn't feel right.” She noted that appellant wore boxers and a t-shirt or no shirt at all when he applied lotion and ointment to O.J. and T.J.
E.J. also testified that appellant would tell her that if she did not get into the shower at a specific time, he would either watch her take her clothes off and take a shower or he would go into the shower with her. She confirmed telling Simpson-Trice about an incident when appellant became upset with her because she did not shower on time and he grabbed her by the collar of her shirt. She began screaming so he let go. She also confirmed telling Simpson-Trice that in 2017, appellant said, “[E]ven if you were to under [sic] dress and want to have sex with me, I would say, no, but come back to me when you are 18” or “but when you turn 18, that's a different story.” Appellant's comments made E.J. very uncomfortable. She recalled telling people at the time that she felt uncomfortable and unsafe and that her family should leave the Millers' house.
E.J. explained that she initially stated the allegations of appellant putting lotion and ointment on O.J. and T.J. were a misunderstanding because that is what appellant told her. E.J. also received a letter from appellant instructing her to say specific things so that he would have a chance of getting E.J. and the other minors back in his care. E.J. was “really irritated” by the letter and “felt it wasn't right.”
Social worker McManus testified that sometime in February or March of 2019, E.J. discussed the allegations of appellant's sexual abuse of her siblings, O.J. and T.J., stated it was inappropriate, and she felt bad that she did not do anything at the time to protect them. Sometime in April 2019, after having met with her therapist (Kaitlyn Scott), E.J. told McManus about appellant inappropriately touching her in the past and threatening to take her clothes off if she did not take a shower. McManus informed Scott and social worker Andrews about the information E.J. disclosed.
Savyna Simpson-Trice, the social worker originally assigned to the minors' case, testified consistent with her reports following her interviews with O.J., T.J., and E.J. Simpson-Trice testified she concluded the minors' claims were substantiated under the definition of sexual abuse in Penal Code section 11165.1, explaining that she relied primarily on the disclosures made by O.J., T.J., and E.J., and the fact that there was an ongoing dependency case and a pending criminal case.
Jesica Cottrell, secondary permanency social worker, testified her assignment included meeting with the minors once a month to ensure their safe placements. She met with the minors and their caregivers approximately six times. She spoke with the caregiver for O.J. and T.J. on January 10, 2019. The caregiver expressed concern regarding O.J.'s ability to maintain proper hygiene but stated she would give the minors step-by-step instructions on hygiene and they learned to do it. On January 29, 2019, Cottrell spoke again with the caregiver, who expressed concerns with O.J.'s hygiene and the fact that she constantly needed to be redirected to read the shampoo bottle and make sure she was not using body wash to wash her hair. The caregiver considered filing a seven-day notice due to fear that T.J. had been telling her teacher lies that the caregiver was yelling at her and that those lies could result in false allegations against the caregiver. However, T.J. admitted to lying and sent a letter of apology.
Cottrell also testified that, on December 6, 2019, E.J. stated she had been getting messages from appellant on a daily basis and it was causing her to feel anxious, stressed, and irritated. Cottrell advised E.J. that she did not have to respond to the messages and could tell appellant how the messages were making her feel. E.J. did communicate with appellant and appellant responded, “[O]kay. I guess that means you don't love me anymore.”
Appellant testified he and his wife had to teach T.J., O.J., and E.J. how to properly wipe themselves after going to the bathroom. They had to show O.J. what to do and then monitor her on a continuous basis and had to show and monitor T.J. on a less continuous basis. Appellant testified that, in 2017, T.J. was diagnosed with a urinary tract infection for which a doctor prescribed liquid antibiotics. A few days after seeing the doctor, T.J. reported having pain in her vagina. Appellant discovered she had feces in her vaginal area, which was inflamed. He flushed the area and applied hydrocortisone to it. L. Miller was present in the room during the first application. Appellant stated he applied the cream instead of his wife because the minors trusted him more and interacted with him more and they asked him to do it because L. Miller had extremely poor eyesight due to her diabetes. Appellant only ever applied ointment to T.J.'s vaginal area once. He stated he did not ask E.J. to apply the ointment to T.J. because he did not want her to have to be the parent to her younger siblings.
Appellant testified that O.J. also complained of vaginal pain but he did not take her to a doctor and instead treated the problem by applying a mixture of hydrocortisone and Lamisil to O.J.'s vaginal area and continued to tell O.J. to wipe front to back. When asked whether he ever told O.J. to apply the ointment herself, appellant stated he attempted to get her to do it, but she did not want to. Appellant stated O.J. only had two cases of vaginitis but she also had issues with “dribbling” when she did not make it to the bathroom on time that caused wetness and vaginal irritation and required appellant to apply ointment to her vagina. He applied ointment to O.J.'s vaginal area twice. Appellant stated he applied ointment to the sides of the lips of the minors' vaginas and it only took about a minute.
Appellant further testified he applied Solarcaine to O.J. and T.J. when they got sunburned in Mexico. There was also a time when they had an infestation of bed bugs and he had to apply hydrocortisone to the minors to stop the itching. He also applied “cocoa butter moisturizing lotion” to O.J. from “the soles of her feet to the top of her neck” whenever she started itching herself and whenever she asked him to. He did so “infrequently” because “it wasn't needed every day.” He testified he applied lotion to O.J.'s chest approximately 20 times in the evening. He denied that O.J. ever asked him to stop. He also applied lotion to T.J. once or twice a month because she also had itchy, dry skin and she wanted him to. T.J. asked appellant to put moisturizer on her chest. He asked both girls something to the effect of, “Doesn't that make your body feel better?” or “Doesn't this make your skin feel better?” after applying the lotion. He applied lotion because the minors' skin was so dry they scratched until they bled. In particular, O.J. and T.J. scratched their breasts until they bled.
Appellant denied ever telling anyone he put lotion on O.J. because it helped her go to sleep. He admitted he told officers he did not feel his actions were inappropriate because he felt he was caring for the minors “in a caretaker function.” He testified that his only intent was to provide relief of the minors' pain and suffering and he never had any sexual intent. He stated that one of the reasons he applied ointment to O.J. and T.J. is they were both “delayed” and were never taught how to do things. He did not believe T.J. could have applied the ointment herself, but he never attempted to have her try.
Appellant denied E.J. ever had bumps or rashes that needed medication and denied ever putting any cream or medication on E.J.'s vaginal area or her “bikini” area, stating she was fully capable of doing it herself. He denied ever threatening to take a shower with E.J. or telling her she would have to undress in front of him. He also denied discussing the dependency case with E.J. when he visited her in the hospital, but he admitted telling her the other three minors had been placed in protective custody and that “this is all a misunderstanding.” He denied ever telling E.J. what to say to investigators or law enforcement officers or asking her to lie. He also denied ever writing E.J. a letter containing instructions about what to say. Appellant also denied ever suggesting to E.J. that he would have sex with her once she turned 18 or telling her, “We can never have sex, but when you're 18, it's a different story.”
Appellant testified L. Miller sometimes applied lotion to the minors' arms and legs and, while she also cooked and took notes during the hearing, she could not apply ointment to the minors' vaginal areas because “her eyesight is not whole” and “functions barely for what she can do.” He admitted she could “probably” apply lotion to the minors' breasts and she could have applied ointment to their vaginal areas. Appellant never reported to anyone that the minors had eczema.
Jurisdictional Findings and Orders
On June 19, 2019, at the conclusion of witness testimony and argument from counsel, the court discussed the evidence presented and noted its impression of the testimony of each witness. The court found appellant's conduct could not be reasonably construed to be normal caretaking functions or administrations for a valid medical purpose, concluded the Department met its burden to prove by a preponderance of evidence the allegations in the second amended petitions, finding the minors to be described by section 300, subdivision (d).
Seventh Addendum Report
The seventh addendum report filed August 9, 2019, stated mother was participating in individual counseling and domestic violence counseling. Appellant completed parenting classes and individual counseling for sexual abuse offenders. L. Miller completed sexual abuse group counseling for nonoffenders.
Eighth Addendum Report
The eighth addendum report, filed September 12, 2019, stated appellant completed 10 sessions of individual counseling for sexual abuse offenders and made “significant progress.” Therapist Diana Sarabia reported that appellant stated he administered medication by hand to the minors' chests and vaginal areas to help with medical conditions (e.g., vaginal rash) but came to understand he crossed boundaries he should not have crossed and stated he would not do so again and would make sure that if the minors needed help, a female adult would address the situation.
Contested Hearing on Termination of Guardianship
The contested hearing on termination of guardianship commenced on January 9, 2020. The court heard testimony from appellant's niece, Amanda Krecisz-Clark, and appellant's sister, Suzanne Clark, and stipulated statements from visitation supervisors Manny Ayon and Leandra Jones. On January 16, 2020, after hearing argument from counsel, the court granted the Department's motion to terminate the Millers' guardianship, concluding it was in the best interests of the minors to do so.
Ninth Addendum Report
The Department concluded, in its ninth addendum report filed February 4, 2020, that it would be detrimental to the minors to be placed with mother and recommended that reunification services be provided to mother while the minors remained in out-of-home placement.
Contested Disposition Hearing
On August 11, 2020, the court adjudged the minors dependents of the juvenile court, found mother waived reunification services as to E.J., placed the three youngest minors in the physical custody of mother under a plan of family maintenance, with E.J. to remain in her current placement, and ordered that father be provided with reunification services.
On March 16, 2020, and October 20, 2020, appellant filed notices of appeal as to each minor from the court's June 19, 2019 jurisdictional order, its January 16, 2020 order terminating guardianship, and its August 11, 2020 disposition order. We granted appellant's request to construe his March 16, 2020 notice of appeal to include the August 11, 2020 disposition order.
DISCUSSION
I
Full Consideration of Circumstantial Evidence
Appellant contends the juvenile court abused its discretion and deprived him of due process of law when it failed to consider circumstantial evidence demonstrating he did not have the sexual intent required to sustain the allegations in the petition. The claim lacks merit.
The second amended petitions were based on section 300, subdivision (d), which requires proof that “[t]he 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... guardian..., or the... guardian has failed to adequately protect the child from sexual abuse when the... guardian knew or reasonably should have known that the child was in danger of sexual abuse.” (§ 300, subd. (d).) As relevant here, Penal Code section 11165.1 provides that sexual abuse includes: “The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.” (Pen. Code, § 11165.1, subd. (b)(4).)
As a preliminary matter, appellant states the standard of review in a footnote as follows: “[W]hether there is substantial evidence, supporting a finding that [appellant] did not have a sexual intent, in performing the acts alleged, against him, in the Petition.” (Italics added.) He is incorrect.
“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193; accord In re I.J. (2013) 56 Cal.4th 766, 773; In re Basilio T. (1992)4 Cal.App.4th 155, 170.) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Appellant claims the court erred because it failed to consider “substantial circumstantial evidence” corroborating his position of no sexual intent, including the following: his own pre-trial statements and testimony; his cooperation with the Department and law enforcement; O.J.'s problems accurately recounting events and learning skills; O.J.'s problems with hygiene; O.J.'s and T.J.'s lies about the foster mother; E.J.'s emotional problems; E.J.'s motive to lie and her inconsistent statements; the absence of sexual activity one would expect of appellant if he did have sexual intent; incomplete and inaccurate evaluation of facts by the Department showing it was predisposed to finding evidence to sustain the petitions; evidence that O.J. and T.J. both had vaginal irritation requiring medical treatment; and legitimate reasons for appellant to put lotion on O.J. and T.J. As we explain, the record makes plain that the court considered the circumstantial evidence before it.
The circumstantial evidence to which appellant refers was revealed through testimony at the lengthy contested jurisdiction hearing over which the juvenile court presided. The court listened intently to each witness, ruled on countless objections from all parties, and asked questions of the testifying witnesses. At the completion of the hearing, the court spent a great deal of time discussing its impressions of the credibility of each witness, the relevance of any of the testimony given, and the weight and impact of that evidence. In particular, the court acknowledged that, in considering the veracity of witness testimony, the trier of fact “may use common sense and experience, ” “may believe all or part of a witness's testimony, ” “should not automatically reject testimony just because of inconsistencies or conflicts, ” and “should consider whether the differences are important or not.” Against that backdrop, the court concluded the Department met its burden to prove, by a preponderance of evidence, the allegations in the second amended petitions.
In particular, the court considered appellant's pretrial statements and testimony and found portions of it to be unbelievable and contradictory, in part regarding how, when, and why he applied lotion and ointment to the minors' bodies, breasts, and vaginas. The court considered evidence of O.J.'s developmental delays and difficulties with giving and receiving information verbally but found her statements and reports of sexual abuse were nonetheless compelling because she was able to communicate and “clearly express herself, albeit, in a manner younger than her stated age.” The court also considered testimony regarding O.J.'s issues with hygiene, noting testimony from several witnesses that O.J. was performing “within the expected range for her age” contrary to appellant's assertion that she was unable to do something as simple as spread lotion on her own body, that O.J. “may not be efficient, but she was capable of getting the job done in her way, ” and that O.J. and T.J. were able to apply lotion and sunscreen themselves. The court also heard testimony and considered medical records and other documentary evidence that O.J. and T.J. at times had medical issues including urinary tract infections and vaginitis, but noted the dearth of evidence that anything other than antibiotics and the occasional “zinc oxide” cream were prescribed or that appellant informed doctors he was applying anything to the minors' vaginal areas or reporting what he characterized as skin issues so severe it caused the minors to “[scratch] themselves until they bled.” The testimony of social worker Jesica Cottrell informed the court as to the foster mother's concerns over lies told by O.J. and T.J., namely that the foster mother yelled at O.J. and T.J., both of whom admitted lying and wrote letters of apology. However, there was no indication the minors were prone to telling lies or that they lied in their reporting of the sexual abuse by appellant.
The record also belies appellant's claim that the court failed to consider circumstantial evidence regarding E.J.'s emotional problems, her motive to lie, and her inconsistent statements. To the contrary, the court spent a fair amount of time discussing E.J.'s testimony, which the court found to be “very consistent” and “very credible, ” and stated it was not troubled by certain inconsistencies in her responses. Similarly, the court heard and considered testimony from appellant and other witnesses regarding the absence of any additional activity (e.g., taking nude pictures of the minors, oral copulation or intercourse with the minors, owning or watching child pornography) that might normally demonstrate a person's sexual intent. In that regard, the court noted testimony from the emergency response social worker that appellant's actions could not be reasonably construed to be normal caretaker activities, even though there was no specific direct evidence to prove sexual gratification. The court commented, “As the case law notes, there rarely is.”
The record makes plain that the juvenile court “carefully considered whether it could draw two or more reasonable conclusions from the circumstantial evidence” and concluded that it could not, finding “the conduct in question could not be reasonably construed to be normal caretaking function[s] or administrations for a valid medical purpose[].” To the extent appellant argues there was insufficient evidence to support that finding, we disagree for the reasons set forth above. The court properly considered all of the evidence, including the circumstantial evidence to which appellant refers. We find no error.
II
Proper Consideration of Departmental Reports
Next, appellant contends the juvenile court erred when it relied on Departmental reports that were not admitted into evidence. The Department argues appellant forfeited his claim for failure to object in the juvenile court and, in any event, the reports were admitted, and appellant suffered no prejudice.
We agree the reports were admitted into evidence, as demonstrated by the court's statement on March 8, 2019, at the beginning of the contested jurisdictional hearing that “I should have the record reflect that I am receiving the reports that I indicated into evidence.” (Italics added.) The reports “indicated” by the court were “the detention report, the jurisdiction and dispositional report and four addenda.” On June 19, 2019 at the conclusion of the jurisdictional hearing, the court confirmed its receipt of evidence in the case, including “[t]he reports admitted, the exhibits, the SAFE interviews, and the testimony.” (Italics added.) It is worth noting that appellant failed to object in any manner to the admission of the reports at the beginning of or during the lengthy days-long hearing and, as aptly noted by the Department, fully exercised his opportunity to cross-examine each of the witnesses who testified. In any event, there was no error.
III
Sufficient Evidence to Sustain Petition and Terminate Guardianship as to G.J.
Appellant claims there was “no substantial evidence” to sustain the petition, exercise jurisdiction, and terminate the guardianship as to G.J., the youngest of the four minors and the only male. As we shall explain, sufficient evidence supports the court's jurisdictional order and its order terminating the guardianship as to G.J.
The Department has the burden to prove jurisdiction by a preponderance of the evidence. (§ 355, subd. (a); In re I.J., supra, 56 Cal.4th at p. 773 ; In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)As we noted above, we review the juvenile court's jurisdictional findings for substantial evidence. (In re I.J., at p. 773; In re Basilio T., supra, 4 Cal.App.4th at p. 170.) “ ‘If there is any substantial evidence to support the [jurisdictional] findings of the juvenile court, a reviewing court must uphold the trial court's findings. All reasonable inferences must be in support of the findings and the record must be viewed in the light most favorable to the juvenile court's order. [Citation.]' ” (In re Basilio T., at p. 168.) “[I]ssues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A., supra, 52 Cal.App.4th at p. 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
The second amended petition as to G.J. alleged, pursuant to section 300, subdivision (d), that G.J. was at substantial risk of sexual abuse based on the sexual abuse of his three female siblings by appellant and due to L. Miller's failure to adequately protect him from such abuse. Appellant claims there was no evidence that he had harmed, or would harm G.J. or that he had any sexual interest in males and, as such, there was no substantial evidence by which to have sustained the amended petition or terminate the guardianship as to G.J.
As the Department correctly points out, case law establishes that sexual abuse of a female minor by a parent or guardian places male minors in the home at risk of sexual abuse. (In re P.A. (2006) 144 Cal.App.4th 1339 [male siblings of molested nine-year-old girl at risk of sexual abuse as they approach age of molested sibling]; In re Andy G. (2010) 183 Cal.App.4th 1405 [parent living in home molested the minor's half-sibling who also lived in the home]; In re Ricky T. (2013) 214 Cal.App.4th 515, 522-524 [even absent the rebuttable presumption of § 355.1, subd. (d), guardian's prior sexual abuse of two minor sisters placed their minor male sibling at risk of sexual abuse]; In re I.J., supra, 56 Cal.4th at p. 778 [sexual abuse of daughter supported determination that male siblings were also at risk of sexual abuse]; In re Karen R. (2001) 95 Cal.App.4th 84 [juvenile court exercised jurisdiction over siblings of minor girl raped by father who lived in home with all the children].) While the factual context and degree of sexual abuse varies in these cases, there is a common principle among them. In In re I.J., our state's highest court stated the principle as follows: Even when no evidence exists that the parent or guardian physically or sexually abused or neglected the male child/children, “section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. The subdivisions [(b), (d), and (j)] at issue here require only a ‘substantial risk' that the child will be abused or neglected. The legislatively declared purpose of these provisions ‘is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.' (§ 300.2, italics added.) ‘The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.' (In re R.V. (2012) 208 Cal.App.4th 837, 843.)” (In re I.J., at p. 773.)
The court in In re I.J. noted, “Some of these cases are distinguishable from this one and each other, in that some of the cases upholding the jurisdictional finding contained additional evidence that is lacking here. But to some extent, the cases simply disagree with each other. The majority... agreed with the cases finding the evidence sufficient, while the dissent agreed with the cases finding the evidence insufficient.” (In re I.J., supra, 56 Cal.4th at p. 775.) We agree with the conclusions reached in the cases upholding the jurisdictional finding, and we reiterate the sentiment set forth by the court in In re P.A. that, while acknowledging the sexual abuse in the case “concededly is less shocking” than the abuse in other cases, “we are convinced that where, as here, the child has been sexually abused, any younger sibling who is approaching the age at which the child was abused, may be found to be at risk of sexual abuse.... [A]berrant sexual behavior by a parent places the victim's siblings who remain in the home at risk of aberrant sexual behavior.” (In re P.A., supra, 144 Cal.App.4th at p. 1347.)
The evidence was sufficient to support the court's exercise of jurisdiction over G.J. and its termination of the guardianship as to him.
IV
Denial of Request to Call Character Witnesses
Finally, appellant claims the court committed prejudicial error when it refused his request to call character witnesses. The claim lacks merit.
Background
Appellant's sexual abuse counselor, Diana Sarabia, testified during the contested jurisdiction hearing. Appellant's counsel asked Sarabia her opinion as to whether appellant “is someone that needs further services.” In response to a relevance objection, appellant's counsel argued, “I think this goes to her opinion as to the veracity of the allegation.” When the court asked why the witness's opinion on veracity mattered when it was for the trier of fact to decide, counsel argued that, “under Evidence Code [section] 1102, [appellant] is allowed to present character evidence in his defense as part of that psychological testimony. Psychological testimony can be able to show that he does not have character to commit sexual acts of the nature he's being alleged.” Counsel argued Evidence Code section 1102 was applicable in a dependency case to allow “an accused to enter evidence on his character to show that he himself acted in conformity with that character and that allows the prosecution to rebut with bad character, ” referring the court to In re Mark C. (1992) 7 Cal.App.4th 433 (Mark C.). Counsel further argued appellant's character was “relevant as to whether the children are in danger or whether the children are at risk of danger as they are alleged to be here.”
The court expressed concern with the implication that a person of good character would not place children at risk noting, “It doesn't necessarily follow that an individual who provides good parenting in one area is therefore not subject to poor parenting in another area.” Counsel argued that “evidence is admissible under [Evidence Code section] 1102” and “[e]vidence is also admissible by the defendant himself or in this case the accused, [appellant]. And once that happens, then the door is open if the prosecution wants to rebut with bad character evidence. But it's up to the Court the amount of weight that the Court wants to give such testimony.” Counsel also argued that, pursuant to People v. Stoll (1989) 49 Cal.3d 1136, character evidence under Evidence Code section 1102 regarding sexual abuse standards can include psychological testimony that the accused is not a sexual deviant. The Department argued the purported testimony was irrelevant based, at least in part, on the fact that it was not being offered by a clinical psychologist, as in Stoll. The court allowed appellant's counsel to file a motion in limine regarding admission of character evidence.
Following a brief recess, the court sustained the objection to appellant's in limine motion stating it reviewed Mark C. and conducted additional research and concluded that Mark C. “very clearly pointed out that when there is a [section] 300[, subdivision] (j) petition, as there was in that case, that the legislature has specifically in the Welfare and Institutions Code directed the court to consider the circumstances including the mental condition of the parent or guardian or any other factors in terms of considering substantial risk to a child, specifically as it relates to the [section] 300[, subdivision] (j) allegation. There is no [section] 300[, subdivision] (j) allegation before the Court in this case.”
The court also noted that Mark C. very clearly limited the application of Evidence Code section 1102 in the dependency context “to whether or not there is a need to make a [Kelly/Frye] showing of scientific reliability concerning psychological testimony based on standardized written personality test and patient interviews.” The court further noted that a footnote in Mark C. discusses that Evidence Code section 1101 “provides the exceptions to the general exclusionary rule, such as those set forth in Sections 1102 and 1103, ” and that “the provisions of Evidence Code Sections 1102 and 1103 have not, however, been extended to juvenile dependency matters.” The court stated it was important to consider that “a dependency case directs the Court to focus very specifically on the children” and applying the rule as suggested by appellant “would devolve dependency proceedings into the county looking for witnesses to come in and testify as to poor character and bad character to rebut the parent[']s or guardian's information to the opposite. And that's not really what the focus of this court is supposed to be.”
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.
Finally, with regard to appellant's argument that Evidence Code section 1102 allows the accused to bring forth evidence of his good character and then allows the prosecutor to rebut with evidence of bad character, the court stated Evidence Code section “1101 doesn't say anything about the prosecutor. It simply says evidence of a person's character, [trait] of character, is inadmissible when offered to prove his or her conduct on a specified occasion whether in the form of an opinion, or reputation or evidence of specific instances of his or her conduct, except as otherwise provided in the other code sections, ” such as section 1102.
Law and Analysis
As the juvenile court noted, “The general exclusionary rule for character evidence in a civil case appears in Evidence Code section 1101, subdivision (a), providing in pertinent part: ‘Evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.' [Citation.] This rule has been applied in the juvenile dependency context to disallow the use of inferences drawn by an expert psychiatrist, from standardized psychological tests of an allegedly offending father, in order to form a conclusion that the father ‘had a character trait, a propensity to sexually abuse children, and acted in conformance with that propensity in this instance by sexually abusing his daughter.' (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1123.) Such an inference is prohibited by section 1101 of the Evidence Code, banning character evidence in civil cases. (In re Cheryl H., supra, at pp. 1123-1124.) Thus, such expert opinion could not be used in support of a trial court finding that the father had sexually abused his daughter. ([Id.] at p. 1125.)” (Mark C., supra, 7 Cal.App.4th at pp. 441-442.)
We review the juvenile court's admissibility findings for abuse of discretion. (In re Cindy L. (1997) 17 Cal.4th 15, 35.)
Relying on Mark C., appellant argues character and opinion evidence was admissible in this juvenile dependency case to prove his lack of propensity to commit the sexual abuse of the minors, an issue relevant to whether there was sufficient evidence to sustain the petitions. We disagree.
In Mark C., the juvenile court sustained allegations that the father committed sexual abuse of Mark pursuant to section 300, subdivision (d), and of Mark's half-sister Jennifer pursuant to section 300, subdivision (j). (Mark C., supra, 7 Cal.App.4th at p. 435.) Prior to the evidence phase of the jurisdiction hearing, the agency filed a motion in limine to exclude certain expert testimony regarding psychological and physiological testing the father was expected to present on the issue of his propensity or lack thereof to molest children. (Id. at p. 437.) The father argued the expert testimony was offered “only to show there was no future substantial risk to Mark because of any sibling abuse within the meaning of section 300, subdivision (j), and he did not intend to argue it was probative as to whether past acts of sexual conduct had occurred.” (Ibid.) He further argued that “if the evidence showed that Jennifer had been sexually abused by [him], ‘based upon who this individual is,' [he] posed no substantial risk to Mark” and “the expert evidence would show there was no nexus between what may have happened to Jennifer and what might happen to Mark in the future.” (Id. at pp. 437-438.) The agency argued the purported evidence was inadmissible “either to show that prior acts occurred or to show that [f]ather would likely act in conformance with the behavior which he demonstrated at testing, i.e., that he had no propensity to molest children.” (Id. at p. 438.) The juvenile court granted the motion in limine to exclude the proposed testimony for any purpose and sustained the petition. (Ibid.)
On appeal, the father argued the juvenile court erred when it denied admission of expert opinion testimony because it would have been helpful to the substantial risk determination pursuant to Evidence Code section 801. In the alternative, he argued the court should have admitted the expert testimony as character evidence under Evidence Code section 1100 et seq., because it would have been helpful to the determination of whether the father had a predisposition or propensity toward future sexual abuse of Mark. (Mark C., supra, 7 Cal.App.4that p. 441.) The appellate court reiterated the general exclusionary rule for character evidence to prove conduct on a specified occasion, noting the rule applied in dependency cases “to disallow the use of inferences drawn by an expert psychiatrist, from standardized psychological tests of an allegedly offending father, in order to form a conclusion that the father ‘had a character trait, a propensity to sexually abuse children, and acted in conformance with that propensity in this instance by sexually abusing his daughter.' [Citation.]” (Id. at p. 442.)
The father argued the expert evidence “was admissible under section 300, subdivision (j), as probative that there was no ‘substantial risk that the minor will be abused or neglected,' based upon abuse of the sibling.” (Mark C., supra, 7 Cal.App.4th at p. 442.) The appellate court agreed that the “terms of [section 300, subdivision (j)] necessarily imply that in evaluating risk to the child at the jurisdictional hearing, the [dependency] court may consider the propensities or predispositions of the parent (i.e., his or her character) in order to determine if he or she is likely to act in conformity therewith in the future toward another child. By enacting section 300, subdivision (j) as an alternative basis for jurisdiction over a dependent child, the Legislature apparently intended to place the parent's character in issue to some extent.” (Ibid.) However, the court pointed out that there was a “specific statutory basis for the admissibility of that evidence in former section 355.5 (now § 355.1, subd. (b)), which in both forms reads as follows: [¶] ‘Proof that either parent... who has the care or custody of a minor who is the subject of a petition filed under Section 300, has physically abused, neglected, or cruelly treated another minor shall be admissible in evidence.' The court concluded, ‘This type of character evidence is essential, when available, to aid the court in dependency actions, which are concerned with the future well-being of a minor.' [Citation.]” (Mark C., at pp. 442-443.) The court then queried whether the father's purported character evidence “(i.e., expert testimony concerning a parent's general propensity toward future sexual abuse)” was admissible for purposes of jurisdiction and concluded it was not: “such evidence is not claimed to have any special statutory authorization such as section 355.1” and, “[a]lthough we believe that in principle such evidence is admissible at the jurisdictional hearing under section 300, subdivision (j) on the issue of the parent's mental condition, in this case the rules regarding expert testimony and its required foundation prevent any conclusion that this evidence should have been admitted here.” (Id. at p. 443.)
We reach a similar conclusion here. The record makes plain that appellant sought opinion testimony from his sexual abuse counselor, Diana Sarabia, to use as character evidence “to show that he does not have character to commit sexual acts of the nature he's being alleged” and to show he “acted in conformity with that character” to prove he did not sexually abuse the minors as alleged. That testimony was inadmissible under Mark C., which clearly prohibits the use of expert opinion testimony in dependency cases to prove that, based on the expert's inferences drawn from a parent's standardized psychological tests, the parent has a character trait or a propensity to sexually abuse children and that the parent acted in conformance therewith as to the parent's own child. (Mark C., supra, 7 Cal.App.4th at p. 442.) Appellant also argued, as he does on appeal, that opinion evidence, reputational evidence, and evidence in the form of specific instances of conduct were all admissible given that his lack of a propensity to sexually molest children was at issue. However, while Mark C. appears to allow for the consideration of character evidence when a section 300, subdivision (j) allegation has been made and when there is a specific statutory basis for the admissibility such as section 355.1, subdivision (b) (Mark C., at p. 442), the petitions here did not contain a section 300, subdivision (j) allegation nor was there prior sexual abuse by appellant which would have triggered section 355.1.
We conclude the court did not abuse its discretion in denying appellant's request to call character witnesses.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: ROBIE, J., KRAUSE, J.