Opinion
C096684
11-17-2023
In re V.C., a Person Coming Under the Juvenile Court Law. v. N.C., Defendant and Appellant. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. STKJDDP20210000391
RENNER, J.
N.C., father of the minor, appeals from the juvenile court's jurisdictional and dispositional orders adjudging the minor a dependent child of the court and removing her from his custody. (Welf. &Inst. Code, §§ 360, subd. (d), 395.) He contends the evidence was insufficient to support jurisdiction and removal. We shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
We dispense with a detailed recitation of the underlying facts and procedure as they are unnecessary to our resolution of the issues. It suffices to say that the then 14-year-old minor was placed into protective custody after she reported father had been touching her inappropriately for approximately five years. She reported that he would touch her when they were alone in a room and would tell her not to tell anyone. The minor stated she was afraid to return home and did not feel safe there. Father had full legal and physical custody of the minor and they lived with the minor's stepmother, two stepsisters, and the minor's older brother. Her stepmother had been made aware of the allegations but had questioned father and believed him when he denied inappropriately touching the minor.
The San Joaquin County Human Services Agency (Agency) filed a petition on behalf of the minor, pursuant to section 300, subdivisions (b), (d), and (g), based on allegations that father had been touching the minor inappropriately for several years, that the minor was afraid of father and unwilling to return to his custody, and that father and the minor's stepmother have a prior child welfare referral for physical abuse of another of minor's siblings who no longer lived in the home. The petition also alleged that the minor's mother, who also has a prior child welfare referral, had not cared for the minor for several years and that father had sole legal and physical custody of the minor due to mother's substance abuse issues.
The juvenile court found the allegations as to mother true and took jurisdiction on November 10, 2021. It held a protracted contested jurisdiction hearing as to the allegations relating to father on January 13, March 11, March 17, March 18, April 22, May 3, and May 16, 2022. The minor testified at the hearing, including testimony that father had touched her inappropriately when no one else was around since she was nine or 10 years old. She provided some details of a specific instance, as well as a description of his repeated touching of her legs, chest, thighs, and buttocks. Father testified briefly but asserted his fifth amendment right against self-incrimination, although his counsel represented father continued to deny the allegations. The minor's stepmother, older brother, and stepsisters testified that they never saw father touch the minor inappropriately and indicated they did not believe it occurred. Both minor's stepsisters also denied father had ever touched them inappropriately.
The juvenile court purported to "split" jurisdiction by parent, which we have since held is procedurally incorrect. (See In re A.J. (2022) 77 Cal.App.5th 7, 14.)
At the conclusion of the contested jurisdiction hearing, the juvenile court sustained the allegations in the petition. The court dismissed petitions that had been filed on behalf of the minor's brother and stepsisters and permitted father, who had been ordered to move out of the family home, to return home. The minor remained in out-of-home placement. The disposition hearing was set for June 15, 2022.
The Agency filed a disposition report recommending the minor remain in out-ofhome placement and that reunification services be provided to mother, but that father be bypassed for services. Father had previously said he did not want the minor back in his home, although he later denied making that statement. He maintained the minor had fabricated the allegations and that he was unwilling to participate in services.
Father appeared at the June 15, 2022 disposition hearing. Mother's counsel submitted on the Agency's report. Father's counsel noted father disagreed with many of the facts and conclusions in the Agency's report, as argued at the jurisdiction hearing, but that father was prepared to file a waiver of reunification services. The juvenile court adjudged the minor a dependent of the court, accepted father's waiver of services, ordered reunification services for mother, and ordered the minor removed from father's custody.
II. DISCUSSION
A. Jurisdiction
Father contends there was insufficient evidence to support the juvenile court's jurisdiction. This claim lacks merit.
Although the juvenile court sustained the allegations in the petition under section 300, subdivisions (b) (failure to protect), (d) (sexual abuse), and (g) (no provision for support), the allegations relating to father were essentially the same under each count -that father had been sexually abusing the minor for several years and the minor did not feel safe returning to the home. Because the factual basis as to father is the same, and we may affirm a jurisdictional ruling if the evidence supports any of the counts, we will discuss the jurisdictional allegations as they support jurisdiction under section 300, subdivision (d) (sexual abuse). (See In re Christopher C. (2010) 182 Cal.App.4th 73, 83 [juvenile court's jurisdiction may rest on a single ground]; see also In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113 [single finding sufficient to sustain jurisdiction].) We review the juvenile court's jurisdictional findings for substantial evidence. (In re Basilio T. (1992) 4 Cal.App.4th 155, 170.) "The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order." (In re Cole C. (2009) 174 Cal.App.4th 900, 916.) As we shall explain, sufficient evidence supports the juvenile court's jurisdiction based on father's sexual abuse of the minor.
For this reason, we need not also address father's additional argument that the evidence did not support jurisdiction based on the minor's unwillingness to return to father's home. We also recognize, as does father, that the jurisdictional allegations found true as to mother, who did not appeal, were sufficient to establish jurisdiction. We nonetheless exercise our discretion to address jurisdiction based on father's conduct because it served as the basis for the removal order also being challenged and could impact father in this or other dependency proceedings or could have other consequences beyond jurisdiction. (See In re L.O. (2021) 67 Cal.App.5th 227, 237.)
Section 300 provides, in relevant part, as follows: "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent of the court: [¶] . . . [¶] (d) The 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 the child's parent or guardian or a member of the child's household."
It cannot reasonably be questioned, nor does appellant contend otherwise, that the minor's disclosures, if believed, reveal sexual abuse under section 300, subdivision (d). She reported father had been touching her inappropriately since she was nine years old, including, inter alia, intentionally touching and squeezing her chest and attempting to touch her underneath her clothing, and that he did these things when they were alone or no one could see, and that his behavior worsened as she got older. The juvenile court was entitled to find the minor's disclosures and testimony credible. That the minor's family may not believe her or that she may have had a motive to lie, or even that there were some inconsistencies in her statements, matters which the parties argued and the juvenile court considered, do not make her disclosures and testimony inherently unreliable or incredible. Therefore, her disclosures and testimony are substantial evidence of sexual abuse and sufficient to support the juvenile court's jurisdictional finding. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 ["Evidence from a single witness, even a party, can be sufficient to support the trial court's findings"]; see also In re D.C. (2015) 243 Cal.App.4th 41, 52, superseded by statute on other grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.)
Father's argument with respect to the evidence supporting the jurisdictional allegations relating to him is based entirely on his reevaluation of the evidence and credibility of the minor. He reargues the conflicts in the evidence in the manner most favorable to him and asserts that there were inconsistencies in the evidence and the minor had a motive to fabricate the allegations.
First, father repeatedly, throughout his argument, characterizes the minor's "story" as inconsistent but fails to identify actual inconsistencies in her "story." Instead, he simply summarizes, unnecessarily, all the family members' statements indicating they do not believe the minor and focuses on the fact that no one else ever witnessed any inappropriate touching (a fact which is consistent with the minor's statements). These are not inconsistencies in the minor's statements but rather evidence relating to her credibility.
Father also argues, at length, about why he believes the minor had a motive to lie or fabricate the allegations of sexual abuse and further asserts the juvenile court "could not have believed" the minor because the court permitted father to return to the home where his two stepdaughters (who stated they had not been improperly touched) reside. Again, father's argument relates to the minor's credibility. It was not impossible for the juvenile court to believe the minor's testimony that father was touching her, and believe the stepdaughters' testimony that he was not touching them.
Indeed, in order to accept any of father's arguments that the juvenile court's findings were not supported by the evidence, we would have to resolve factual disputes, conflicting inferences, and questions of credibility against the finding of jurisdiction. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) That is not the standard of review we employ.
"We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)" '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.'" (In re Basilio T., supra, 4 Cal.App.4th at p. 168, italics added.) "[I]ssues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 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." (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) 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.)
We will not reweigh the evidence or make credibility determinations. The minor's testimony and earlier disclosures of sexual abuse were sufficient evidence to establish a basis for the juvenile court's jurisdiction. (§ 300, subd. (d).)
B. Removal
Father also contends there was insufficient evidence to support the juvenile court's disposition order removing the minor from his custody. (§ 361, subd. (c).) This claim lacks merit as well.
Section 361, subdivision (c) provides, in relevant part: "A dependent child shall not be taken from the physical custody of his or her parents, guardian or guardians . . . unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, . . .: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody.... [¶] . . . [¶] (2) The parent . . . of the minor is unwilling to have physical custody of the minor, and the parent . . . has been notified that if the minor remains out of their physical custody for the period specified in Section 366.26, the minor may be declared permanently free from their custody and control. [¶] . . . [¶] (4) The minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent . . . and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent, . . . or the minor does not wish to return to his or her parent .... [¶] (5) The minor has been left without any provision for his or her support."
Father appeared at the disposition hearing with counsel. Instead of proceeding with the hearing, father presented a voluntary waiver of reunification services signed by himself and his attorney, who declared she had explained to father the nature of reunification services including the statutory time limits for services, the potential consequences of waiving them, and the likelihood that the parental rights to the minor would be terminated. The juvenile court confirmed with father that he understood that by filing the waiver he would not be reunified with the minor and accepted the waiver. The juvenile court then, with no objection from father, adopted the proposed findings and orders in the Agency's disposition report, including the orders physically removing the minor from father's home with services to be provided only to mother.
Father now complains on appeal that the Agency failed to prove, by clear and convincing evidence, that the minor could not safely remain in his custody. Not only did father forfeit this argument by failing to contest the dispositional issues in the social worker's report, which recommended out-of-home placement for the minor (In re Christopher B. (1996) 43 Cal.App.4th 551, 558), he affirmatively waived it by filing a signed, written waiver of reunification services, including his initialed statement that, "I do not wish to reunify with the child or have the child placed in my custody." (See §§ 361, subd. (c)(2) [removal based on parent's unwillingness to have physical custody of minor], 361.5, subd. (b)(14) [reunification services need not be provided to parent who executes waiver of services and placement].) Thus, he cannot be heard now to complain about the evidence supporting the minor's removal from his custody based on the minor's safety in his home.
To the extent father argues that removal from his physical custody was appropriate but that the court should not have extended it to "legal custodial removal" or "removing legal custody from [f]ather," we note that the legal authority upon which he relies refers to removal of physical custody. This is, of course, because removal from parental custody at disposition is removal from the physical custody of the parents, not "removal" of legal custody. (§ 361, subd. (c) [providing requirements and findings necessary to support taking a dependent child from "the physical custody of his or her parents"].) While the juvenile court may also enter other orders limiting the control to be exercised over the dependent child by any parent, such as educational or developmental decisions (§ 361, subd. (a)), removal is from the "physical custody" of the parents. (§ 361, subd. (c).) Indeed, the juvenile court's written findings and orders referred to the evidence that "the child's physical custody must be taken from the home of [father]" and does not purport to "remove" legal custody from father.
The juvenile court's removal orders were not in error.
III. DISPOSITION
The orders and judgment of the juvenile court are affirmed.
We concur: EARL, P. J., MESIWALA, J.