Opinion
E074256
01-29-2021
In re D.F. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.M. et al., Defendant and Appellant.
Roni S. Keller, under appointment by the Court of Appeal, for Defendant and Appellant M.M. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant D.F. David R. Guardado and Michelle D. Blakemore, County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J280778-82) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Roni S. Keller, under appointment by the Court of Appeal, for Defendant and Appellant M.M. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant D.F. David R. Guardado and Michelle D. Blakemore, County Counsel, for Plaintiff and Respondent.
Defendants and appellants D.F. (father) and M.M. (mother) challenge juvenile court jurisdictional and dispositional rulings regarding their five children. The juvenile court found allegations of physical and sexual abuse to be true and denied the parents reunification services and visitation. The parents argue that no substantial evidence supports the juvenile court's findings, and that it abused its discretion in denying them visitation. We disagree, and therefore affirm the challenged findings and orders.
I. BACKGROUND
The five children involved in this matter include: A.M., a boy born 2007; E.F., a girl born 2009; L.F., a girl born 2011; I.F., a girl born 2014; and D.A.F., a boy born 2016. Father is the presumed father of all five, although he is not biologically related to A.M. Mother and father are not married, but have been in a relationship since approximately 2008.
Plaintiff and respondent San Bernardino County Children and Family Services (CFS) initially detained the children out of the parents' custody in April 2019 based on concerns about domestic violence between the parents, physical abuse of the children, and mother's mental health. At an uncontested jurisdiction and disposition hearing in May 2019, pursuant to an agreement reached in mediation between the parties, the juvenile court found that all the children came within Welfare and Institutions Code section 300, subdivision (b) (failure to protect), and that the oldest child, A.M., also came within subdivision (a) (serious physical harm) and subdivision (c) (serious emotional damage).
Further undesignated statutory references are to the Welfare and Institutions Code.
The intent of the parties and the juvenile court seems to have been to enter findings in accordance with the parties' agreement, reached in mediation. The court's minutes and oral recitation of those agreed-upon findings, as reflected in the reporter's transcript, depart from the agreement in some respects. Thus, the parties' mediation agreement states as to E.F., L.F., and I.F.'s petitions the following: "C.5 to become B.5 Mother submits Rewritten: The mother has engaged in domestic violence, placing the children at risk." This agreement was erroneously stated by the juvenile court, as "(c)4 becomes (c)5 and it's found to be true as rewritten." The court's minutes also reflect in some places a finding that E.F., L.F., and I.F. come within section 300, subdivision (c), inconsistent with the parties' agreement. Other portions of the minutes, however, accurately reflect the parties' agreement, stating that the court found as to those three children that "ALLEGATION #5, WI300C" is "TRUE [. . .] AS AMENDED TO WI300B."
Our discussion here gives effect to the parties' and the court's apparent intent, rather than the apparently garbled portions of the record. In any case, however, the disparities are not material to this appeal.
We further note that A.M. was also found to come within section 300, subdivision (g) (no provision for support), based on the circumstance that his biological father's whereabouts were unknown. Because this allegation does not relate to mother or father, it is not at issue here.
More specifically, under section 300, subdivision (b), the juvenile court found true allegations based on father's history of using excessive physical punishment on the children and physically abusing A.M.; mother's untreated mental illness, which she self-medicated with cannabis; father's failure to protect the children from mother's conduct related to her mental illness; and the parents engaging in domestic violence. The juvenile court further found that A.M. came within section 300, subdivision (a) based on physical abuse by father, and section 300, subdivision (c) based on exposure to incidents of domestic violence between mother and father.
Based on these findings, the children were all declared dependents of the juvenile court and removed from parental custody. The juvenile court ordered reunification services and supervised visitation for the parents.
The children were initially placed together in a foster home. In July 2019, however, at the foster parents' request, A.M. was moved to a different foster home. A.M. had been expelled from school for fighting and ditching class. He engaged in self-harm, poking himself with sharp objects, and the foster parents observed similar injuries on the toddler D.A.F., which they believed had been inflicted by A.M. A.M. fought with his younger siblings daily, hitting and yelling at them to the point that they feared him. E.F. also told the foster parents that, before the children were removed from mother and father, A.M. would make her "watch horror and sexual videos" on the computer.
In further interviews with a social worker in July 2019, the three girls each told social workers that the parents physically abused them, and that A.M. had physically and sexually abused them. According to each of the girls, father and mother would hit them with wires and belts, and the social worker observed that they "had some scars as evidence." Each reported being hit, choked, and slapped by A.M., and E.M. stated that one time A.M. had threatened to kill her and cut her on the leg with a knife. Each also described A.M. touching their private parts, performing sex acts on them, and forcing them to watch pornography. E.F. had seen A.M. sexually abusing L.F. and I.F. The children told the social worker that the parents were aware of the abuse by A.M., but did not stop it.
When A.M. was interviewed, he admitted to yelling at, slapping, and pushing his siblings, but denied choking or threatening them. He said that he would act as a babysitter, and when the girls were "'very annoying'" he would "'hit them,'" but said that he "'stopped doing that a long time ago.'" A.M. admitted that he watched pornography, but he denied touching his sisters sexually. A.M. admitted that mother had told him in advance of the interview about his sisters' allegations, and that mother had told him "'not to say anything.'"
Based on the allegations of sexual abuse, CFS requested that the court authorize E.F. and L.F. to undergo a forensic interview and medical examination. The court granted the request over mother's objection. The forensic interviews and medical examinations were conducted on September 4, 2019. During the forensic interviews, E.F. and L.F. again described physical abuse by mother and father, and physical and sexual abuse by A.M. E.F. and L.F. each stated that during visitation mother had demanded that they "stop talking" about A.M.
E.F.'s medical examination discovered a labial adhesion that the examiner described as a "non-specific finding," commonly caused by a medical condition, but which could also have been caused by sexual abuse. E.F. had several linear scars on her thigh that were consistent with her description of being struck with a wire, which the examiner found "diagnostic for physical abuse." L.F.'s medical examination showed no physical signs of sexual abuse, but she had several scars on her face that were "highly suspicious for physical abuse."
On September 13, 2019, CFS submitted the reports of the forensic interviews and medical examinations of E.F. and L.F. to the court along with a request that mother's and father's visitation with the children be suspended. The trial court temporarily suspended mother's visitation on September 25, 2019, but rejected CFS's request as to father, finding that CFS had not documented "any issues with his visits."
On October 9, 2019, a forensic interview of I.F. was conducted. I.F. described sexual abuse not only by A.M., but also by father and mother. She also stated that not only the parents, but also A.M. had hit her with items like a wire and a belt.
Subsequently, E.F. and L.F. were both re-interviewed. Both disclosed that not only A.M., but also father had sexually abused them. Both described mother as witnessing the sexual abuse by father and A.M., smoking marijuana and either not caring or laughing, rather than intervening.
On October 11, 2019, CFS filed subsequent dependency petitions pursuant to section 342, alleging that the children came within additional subsections of section 300. More specifically, the section 342 petitions added the following section 300 allegations to those of the original dependency petitions: (1) subdivision (a) (serious physical harm) as to E.F., L.F., and I.F., based on physical abuse by mother and father; (2) subdivision (c) (serious emotional damage) as to E.F., based on her exhibiting suicidal ideation as a result of abuse by mother, father, and A.M.; (3) subdivision (d) (sexual abuse), as to A.M., E.F., L.F., and I.F., based on sexual abuse by mother and father; (4) subdivision (i) (cruelty) as to E.F., L.F., and I.F., based on cruelty inflicted by A.M., from which the parents failed to protect them; and (5) subdivision (j) as to D.A.F. (abuse of sibling), based on the parents' neglect and physical, sexual, and emotional abuse of the other four children, and the risk that he would suffer similar abuse and neglect.
At the October 15, 2019 detention hearing on the section 342 petitions, the juvenile court ordered visitation suspended for both parents. The trial court subsequently extended that suspension until the contested jurisdiction and disposition hearing.
In a jurisdiction/disposition report for the subsequent petitions, CFS reported that social workers re-interviewed E.F., L.F., and I.F. E.F. demonstrated that she "understood the difference between the truth and a lie and she agreed to be honest." She also was "able to identify the difference between appropriate and inappropriate touching." She described father touching her in an inappropriate, sexual manner, and that she had observed him doing so to L.F. and I.F. as well. L.F. was unable to give an example demonstrating "understanding of truth versus a lie," but she was able to define a "bad touch" as "'when someone touch my privacy.'" She gave one example of such a bad touch: "'My Dad put his privacy in my privacy.'" She "denied being touched in a bad way by anyone else." I.F., too, could not "demonstrate the difference between the truth and a lie based on an example," but stated: "'It happened in the bathroom.'" When asked what happened in the bathroom, I.F. said "'My Dad licking my privacy.'" After that statement, she was not able to continue further with the interview, seemingly unable to understand the social worker's questions.
At the contested jurisdiction/disposition hearing on December 4, 2019, the juvenile court found the allegations of the section 342 petitions to be true. It applied section 361.5, subdivision (b)(6) to bypass reunification services based on severe physical and sexual abuse. It also denied the parents visitation, finding it to be "detrimental," but authorized CFS to resume visitation if to do so would be in the children's best interests.
II. DISCUSSION
A. Substantial Evidence of Abuse
Mother and father contend that no substantial evidence supports the juvenile court's true findings on the section 342 petitions' allegations because the children's out of court statements do not meet the evidentiary requirements described in In re I.C. (2018) 4 Cal.5th 869. On essentially the same basis, the parents also contend that the evidence was insufficient to support the juvenile court's decision to bypass reunification services pursuant to section 361.5, subdivision (b)(6). These contentions are without merit.
1. Standard of Review
A parent may seek review of both the jurisdictional and dispositional findings on an appeal from the disposition order. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, all conflicts are resolved in favor of the prevailing party and issues of fact and credibility are questions for the trier of fact. (In re I.J. (2013) 56 Cal.4th 766, 773.)
We must "account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard," such as the challenge here to the juvenile court's decision to bypass reunification services. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011; see § 361.5, subd. (b)(6).) Nevertheless, even in that context, our review is deferential to the juvenile court's role as the trier of fact: "When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011-1012.)
2. Analysis
Mother and father's substantial evidence arguments rest on the premises that the children's out of court statements were (1) required to, but (2) do not meet the evidentiary requirements described in In re I.C. (2018) 4 Cal.5th 869. Both of these premises are false.
As a general matter, "[i]n a juvenile dependency proceeding, a child's out-of-court reports of parental abuse are admissible in evidence regardless of whether the child is competent to testify in court." (In re I.C., supra, 4 Cal.5th at p. 875 [citing In re Cindy L. (1997) 17 Cal.4th 15, 20, and § 355].) "But a juvenile court may not base its findings solely on the hearsay statements of a truth-incompetent child—that is, a child who may not testify because she is too young to separate truth from falsehood—unless the child's statements bear 'special indicia of reliability.'" (In re I.C., at p. 869 [citing In re Lucero L. (2000) 22 Cal.4th 1227, 1246, 1231 (plur. opn. of Mosk, J.) & pp. 1250-1251 (conc. opn. of Kennard, J.)].) Such special indicia of reliability include "'(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate,'" as well as "'the child's ability to understand the duty to tell the truth and to distinguish between truth and falsity,'" or any other "'factor bearing on reliability.'" (In re I.C., at p. 891.) To affirm a juvenile court's finding of special indicia of reliability, it is not enough that "the record contains some evidence that the court could have found reliable; a reviewing court instead must consider whether the record as a whole provides substantial evidence to support a determination that the child's statements bear special indicia of reliability." (In re I.C., at p. 892.)
We are not persuaded by mother and father's substantial evidence arguments based on In re I.C. On their view, the children's reports of abuse must be considered unreliable and therefore insufficient to constitute sufficient evidence of abuse to support the juvenile court's jurisdictional or dispositional findings. We disagree.
In re I.C., and the earlier authority on which it relies, require the juvenile court to examine whether special indicia of reliability are present when the child at issue is "truth incompetent." (In re I.C., supra, 4 Cal.5th at p. 889.) Here, the parents argued on the basis of the social worker's report that L.F. and I.F. were unable to tell the difference between truth and falsity, and therefore should not be believed. But they did not even argue that E.F. was truth incompetent, asserting only that she had not told the truth. All three girls were older than the three-year-old involved in In re I.C., supra, 4 Cal.5th at p. 877, but this was especially true of E.F., and there is nothing in the record that compels the conclusion that E.F. was otherwise incapable of reporting her experiences truthfully, whether to a social worker or through in-court testimony. The juvenile court, while acknowledging some "issues about credibility," ultimately credited E.F.'s statements describing the alleged abuse (as well as those of L.F. and I.F.). Nothing in the record demonstrates that this view of the evidence was unreasonable. Evidence from even a single competent witness is sufficient to support a court's findings, even if evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Moreover, even if L.F. and I.F. are assumed to have been truth-incompetent, the evidentiary requirements of In re I.C. would still be satisfied as to their hearsay statements, given their corroboration by E.F.'s statements. (In re I.C., 4 Cal.5th at p. 875 ["juvenile court may not base its findings solely on the hearsay statements of a truth-incompetent child," absent special indicia of reliability (italics added)].)
The parents contend that the girls' statements "tended to interweave fantasy with truth," and the allegations of abuse may reflect not what the parents actually did to them, but rather the pornography their brother showed them, or coaching of the children's foster parents, with whom mother and father have a contentious relationship. Despite some contradictions, discrepancies, and unlikely moments in the girls' statements, however, there is nothing inherently unbelievable or even, sadly, especially unusual in their core allegations of being subjected to various sex acts and acts of violence by their parents and brother. There is no appropriate basis for us to disturb the juvenile court's decision to find the girls' statements to be credible, at least with respect to those core allegations.
Furthermore, mother and father have argued only that the girls' statements should not be treated as credible evidence; they have not argued that, even if credited, the statements (together with the other evidence in the record) do not constitute evidence of physical, sexual, and emotional abuse sufficient to bring the children within the jurisdiction of the juvenile court. We therefore need not discuss the matter at length. We have concluded that, In re I.C. notwithstanding, the girl's statements constitute competent evidence, which the juvenile court as finder of fact was entitled to give the weight it deemed appropriate. We are not empowered to reweigh the evidence, and must view the record in the light most favorable to the juvenile court's determinations. (See In re I.J., supra, 56 Cal.4th at p. 773.) Viewed in the deferential light required, the girls' statements, together with the other evidence in the record, are more than sufficient to support each of the juvenile court's jurisdictional findings.
For similar reasons, the juvenile court's dispositional order bypassing reunification services was also supported by substantial evidence. Even accounting for the clear and convincing standard applicable to the juvenile court's determination, there is ample evidence in the record. (See § 361.5, subd. (b) [requiring clear and convincing evidence for bypassing services]; Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011-1012 [discussing substantial evidence standard of review as applied to determination of fact by clear and convincing evidence].) On the basis of the girls' statements, among other evidence, the juvenile court reasonably could have found it highly probable that they had been severely sexually abused within the definition of section 361.5, subdivision (b)(6)(B). The girls' statements, particularly together with evidence of scars on E.F.'s body that an examiner found "diagnostic for physical abuse," and "highly suspicious" scars on L.F.'s face, also provide ample basis for a finding of clear and convincing evidence of "the infliction of severe physical harm" under section 361.5, subdivision (b)(6)(C).)
Because the juvenile court's jurisdictional and dispositional orders are supported by substantial evidence, we will not disturb them. B. Visitation
Mother and father contend that there is no substantial evidence that visitation was detrimental to the children, so the juvenile court abused its discretion by denying them visitation. The parents' arguments presume, however, that a finding of detriment, supported by substantial evidence, was necessary for the juvenile court to deny them visitation. It was not.
Once reunification services have been bypassed, the juvenile court "may continue to permit" a parent to visit the child, if it finds no detriment to the child in doing so. (§ 361.5, subd. (f), italics added.) Nevertheless, the juvenile court may instead deny visitation in such circumstances "even in the absence of any showing that continued visitation would be detrimental to the child." (In re J.N. (2006) 138 Cal.App.4th 450, 460; see also id. at p. 458 [under § 361.5, subd. (f), juvenile court has "discretion to permit or deny visitation when reunification services are not ordered, unless of course it finds that visitation would be detrimental to the child, in which case it must deny visitation"].)
Thus, the juvenile court's decision to deny the parents visitation was within the scope of its discretion, regardless of whether or not its express finding of detriment was supported by substantial evidence.
III. DISPOSITION
The challenged findings and orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: MILLER
Acting P. J. MENETREZ
J.