Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J09-00380 & J09-00381.
Lambden, J.
Contra Costa County Bureau of Children and Family Services (the bureau) filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d), alleging that Ashley B. was sexually abused by Mark T., the live-in boyfriend of Amanda P. (mother), and mother failed to protect her. The bureau also filed a second petition that Ashley’s sister, Julia B., was at risk of sexual abuse under section 300, subdivision (j), because Ashley had been sexually abused. At the jurisdiction hearing, the juvenile court found the allegations in both petitions true. Mother appeals and contends that insufficient evidence supported the jurisdiction findings. We affirm the judgment.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
In March 2009, mother had two daughters with Christopher B. (Christopher or father): four-year-old Ashley and six-year-old Julia. Mother and Christopher had divorced and, although the parents had joint custody, the children’s primary residence was with mother. Christopher had visitation with his children every other weekend. Mother’s fiancé, Mark, resided with mother and the two girls.
On February 27, 2009, while staying with Christopher on the weekend, Ashley told him that her “pee-pee” hurt and that Mark had put his finger in her too hard when he was bathing her. Christopher asked Julia if Mark had touched her inappropriately, and she responded that he had not. Christopher provided mother with this information, and Christopher reported that mother’s response was that the two girls “over-exaggerated about things all the time.” Christopher reported to the police department that Ashley had been molested.
On March 11, 2009, the bureau filed a petition under section 300, subdivisions (b) and (d), alleging that Mark sexually abused Ashley and mother failed to protect her. The bureau also filed a second petition that Ashley’s sister, Julia B., was at risk of sexual abuse under section 300, subdivision (j), because Ashley had been sexually abused.
At the uncontested detention hearing held March 12, 2009, the court found that detention was not necessary and that reasonable efforts had been and would be made to resolve the issues alleged in the petitions. The court ordered no visitation between the two children and Mark.
The bureau filed its jurisdiction report on July 9, 2009. The report stated that mother allowed Mark to bathe Ashley and, while bathing Ashley, he pushed his finger or fingers inside the child’s vagina “at least half-way to the hymen on multiple occasions.” The report stated that Lisa Slater, a social worker, was the emergency response worker assigned to investigate the referral of March 3, 2009. Slater indicated that mother did not directly respond to the question whether she believed Mark sexually abused Ashley, but answered that she did not trust her ex-husband, Christopher. Mother also indicated that Ashley had a vaginal rash off and on for a few months. Mother said, however, if the allegations of a sexual molestation were true, she would protect her children and Mark was willing to move out of the house.
The report stated that the police had interviewed mother. Mother disclosed that she had been the victim of childhood sexual abuse and, consequently, she asked both girls on a regular basis if they had been touched inappropriately. She said that Ashley had vaginal rashes and it was necessary to keep the area clean. The officer again spoke with Christopher and he said that it was possible that Ashley was referring only to her vaginal irritation.
The report also indicated that Slater had spoken to Mark. Mark told Slater that Ashley cried when anyone bathed her. He explained that he did not use a washcloth when bathing Ashley because the cloth was too rough. He said that he washed Ashley twice with his hand and she did complain that it hurt. He denied pushing his fingers into her. He also said that he was willing to move out. He also admitted that he was convicted of a felony for having sex with a minor 17-year-old female when he was 24 years old.
The report also contained the statement of Dr. James Carpenter. According to the report, “Dr. Carpenter would state that [the Sexual Abuse Response Team] exam performed on [the minor] was non-specific finding. It was consistent but not diagnostic. The most important part was her statements to the doctor. There was no pain until the hymen was touched. There was separation of the labia with a finger that went beyond. Digital penetration at least halfway up to the hymen. Soap could have given irritation. There is not enough proof for criminal proceedings. However, he believes that what occurred is a sexual nature and willing to testify. [Sic]”
The bureau filed an addendum report. This report stated that Dr. Lucia Yang had seen Ashley in her office on December 31, 2008, March 30, 2009, and May 5, 2009. The first visit was for a physical and the other two visits related to Ashley’s complaint of a vaginal irritation. When Dr. Yang first saw Ashley for a physical on December 31, 2008, neither mother nor Ashley mentioned a vaginal irritation. On March 30 and May 5, 2009, Ashley’s maternal grandmother brought her to Dr. Yang’s office and Ashley complained of vaginal itching and burning and Dr. Yang diagnosed her with vulvovaginitis. The grandmother did not tell Dr. Yang at either visit that there was pending allegation that an adult finger had been inserted in the child’s vagina. Dr. Yang said that, had she been given that information, her examination of Ashley would have been different and she would have ordered tests for sexually transmitted diseases. Dr. Yang stated that masturbation or rubbing or poking of the vaginal area could cause vulvovaginitis. She could not rule out sexual abuse, but did not have sufficient information.
At a contested jurisdiction hearing on May 7, 2009, the court heard the videotaped interview of Ashley taken at the Children’s Interview Center (CIC tape). Ashley stated that Mark pushed his finger into her “pee-pee.” She reported that he washed her with his hands, rather than with a cloth. She also demonstrated what had happened to her on a stuffed teddy bear. When asked to show the interviewer what Mark did, she pressed her finger hard into the bear between its legs in the crotch area. When responding to the interviewer, Ashley indicated that she could count to 10, knew her colors, knew what the truth was, knew her age, and knew what above, below, and under were.
Mother testified and stated that she worked as a medical biller. She said that Mark, who was her fiancé, had been living with her and her two daughters. She was currently pregnant with Mark’s child. She testified that Mark had told her on their first date that he had been convicted for having sex with a 17-year-old. She said she read “all of his paperwork on what he was charged with before” she would allow him to meet her children. She stated that he was not a registered sex offender. She asserted that he had not displayed any attraction to her children in the two years that she had known him.
Mother testified that Ashley broke her left arm on January 15, 2009, and that she is left-handed. On January 21, mother began going to school at night after working all day; she asked Mark to bathe Ashley. On January 30, Christopher called her and said that he was giving Ashley a bath, but he washed her too hard and now she was crying. He asked her what he should do. Mother said that she told him that she had been using an ointment on Ashley’s vagina because she had a rash from not wiping well enough. Ashley was taken to the doctor and was diagnosed with vulvovaginitis.
Mother asserted that she would not let Mark back into the home if that were necessary for her to have her children. In response to the court’s questioning, mother reported that Mark washed Ashley with his bare hand rather than using a washrag.
Mark testified that he was convicted of having unlawful sex with a 17-year-old minor in January 2007, and that he was still on felony probation. He said that he washed Ashley with his bare hands a few times but denied pushing his finger inside her. He explained that the following occurred: “I soaped up my hand real quick, rubbed her down. I soaped up and rubbed her down. I got down there and I said, ‘Open up, ’ and I went to soap up quickly and I rinsed real quick. It was just a couple of swipes. [¶] She cried, said ‘Ouch, ’ and I said that it would be over in a minute. I had the water ready. It’s on a hose. I grabbed the nozzle and rinsed her off and, yes, she cried.” Mark maintained that she stopped crying within a few seconds and he asked her if it was better; she said that it was. He said that he had personally heard Ashley cry when mother washed her genitalia. He denied having any sexual intent to arouse himself when he bathed Ashley.
Mark said that he voluntarily left the home and would remain away until the court gave him permission to return. He declared that he would never bathe the girls again if allowed to return to the house.
After hearing all the evidence, the court found true the allegations that Mark had sexually abused Ashley, that mother failed to protect Ashley from sexual abuse, and that Julia was at risk of sexual abuse. The court found, based on Ashley’s interview, which it deemed credible, that Mark put his finger inside her. The court elaborated: “There’s no reason to shove your finger up inside the child. And sure it hurt. And she didn’t make this up. And he may have rough hands, that’s fine. And the child may have vulvovaginitis, that’s apparent. But she doesn’t make the same complaints of her mother. She doesn’t make the same complaints with her father. [¶] And the idea of washing somebody with your hands, especially a small child, it’s inappropriate. It may not be against the law but it’s inappropriate. And if someone has an irritation that everyone is aware of, a soft rag and a gentle washing is sufficient. I can only construe from the circumstance that there was sexual intent.” The court sustained the allegations that Ashley was a dependent of the court under section 300, subdivisions (b) and (d), and that Julia was a dependent of the court under section 300, subdivision (j).
At the disposition hearing on August 6, 2009, the court reiterated that it was certain Mark inserted his finger into Ashley’s vagina, but the only question was whether there was sexual intent. The court acknowledged that Mark was probably not someone who was molesting small children “[b]ut he did a very stupid thing and it affected [a] four-year-old....” The court continued the minors as dependents of the court with placement in mother’s home and Mark was to have no visitation or contact.
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends that insufficient evidence supports the jurisdiction finding that Mark sexually abused Ashley or that mother failed to protect Ashley under section 300, subdivisions (b) and (d). Additionally, even if the evidence supported a finding of abuse involving Ashley, mother claims that the record contains insufficient evidence to establish that Julia was at risk under section 300, subdivision (j).
I. Standard of Review
“At the jurisdictional hearing, the court determines whether the minor falls within any of the categories specified in section 300. [Citation.] ‘ “The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child... comes under the juvenile court’s jurisdiction.” ’ [Citation.] On appeal from an order making jurisdictional findings, we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]” (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
II. Jurisdiction over Ashley
A. Evidence that Ashley was Sexually Abused
The trial court found that it had jurisdiction over Ashley because she came within the description of section 300, subdivisions (b) and (d). Subdivision (d) provides: “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 his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.” Subdivision (b) states that jurisdiction is proper when the parent or guardian fails to protect the minor. Here, the same facts were cited to support jurisdiction under both subdivision (b) and subdivision (d).
Penal Code section 11165.1, subdivision (b)(4) reads: “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.”
Mother claims that the evidence does not support the court’s finding of jurisdiction that Mark violated Penal Code section 11165.1. She maintains that Ashley did not describe sexual abuse in her interview with the CIC. She argues that the allegations in the jurisdiction report by the bureau and the court’s findings “greatly overstate what Ashley said in her interview.”
This court observed the video of the CIC interview, which is part of the record on appeal. The interviewer asked Ashley a number of questions to establish some rapport and to determine her mental capability. It is clear from the interview that Ashley knew right from wrong, knew what it meant to lie, knew different colors, knew how to count to 10, and knew when an object was above or below something else. Although the sound in the video is not ideal, the questions and answers can be heard and Ashley appears to answer the questions without any coaching. Ashley stated Mark washed her without a cloth, pushed too hard between her “pee-pee, ” and did not care that she was crying. She reported that he never told her to be quiet or not report the incident.
The interviewer asked Ashley to pick up a teddy bear to point out where Mark washed her; Ashley put her fingers between the bear’s legs at the crotch area. While placing her fingers between the bear’s legs, Ashley pressed her fingers very hard against the bear and motioned upward. The interviewer then asked if the finger went inside her “pee-pee” and Ashley nodded yes.
Mother complains that it is never clear from the interview that there was digital penetration. She asserts that one cannot tell what Ashley meant by “pee-pee” or whether Mark simply washed the outside of her genitalia. She argues that the “more credible inference is that Mark was washing her genitalia because of Ashley’s vulvovaginitis” and that washing her was difficult because of the cast on her arm and the sensitivity of her rash. Mother points out that Mark did not threaten Ashley into silence, did not tell her she would get in trouble if she disclosed what happened, and washed Ashley only because mother was busy.
Mother also questions the evidence of abuse provided by Dr. Carpenter. He did not testify at the hearing, and the bureau’s report stated that he would testify that Ashley’s irritation could have been caused by soap but he believed “what occurred is of [a] sexual nature[.]”
We agree with mother that the facts in this case are not definitive, but the question before us is whether substantial evidence supported the court’s finding that a preponderance of the evidence supported jurisdiction. It is not this court’s job to reweigh the evidence. In the present case, although the evidence is not the strongest, it supports the lower court’s ruling. Ashley told Christopher, without any prompting, that Mark put his finger in her “pee-pee.” At different times, she used the words “inside, ” “far back, ” and “between my ‘pee-pee.’ ” She also affirmatively demonstrated to the interviewer that Mark pressed hard between her “pee-pee.” Additionally, Ashley made it clear that she cried while Mark was washing her and suffered pain. The situation was sufficiently severe that she reported it to her father two days later. Further, Ashley’s statements to her father, Dr. Carpenter, and the CIC interviewer were consistent.
Mother maintains that Ashley’s motion on the teddy bear was consistent with washing. We disagree. Ashley’s motion indicated that Mark used some upward force around her crotch.
In arguing that the evidence was insufficient, mother cites In re Clara B. (1993) 20 Cal.App.4th 988 and In re Sheila B. (1993) 19 Cal.App.4th 187. Neither of these cases, however, compels a conclusion in the present case that insufficient evidence supports the lower court’s finding of jurisdiction.
Mother asserts that the facts in the present case are not as strong as those in In re Clara B., where the appellate court affirmed the finding of jurisdiction based on sexual abuse. (In re Clara B., supra, at p. 1000.) In In re Clara B., there was undisputed medical evidence that the child had been sexually molested and there was a 99 percent chance that the injury to the child’s hymen was caused by some type of object attempting to penetrate into the hymen. (Ibid.) Further, the father’s rendition of what had happened was not reconcilable with the type of injury the minor sustained. (Ibid.) The court noted that the evidence was “by no means overwhelming, ” but given the deference the appellate court must accord a juvenile court’s factual findings, it concluded substantial evidence supported the jurisdiction finding under the preponderance of evidence standard. (Ibid.)
Mother argues that the evidence in In re Clara B., supra, 20 Cal.App.4th 988, was not considered strong by the appellate court, but the evidence in the present case is weaker. In In re Clara B., the medical examination was conclusive that vaginal penetration and injury had occurred. (Id. at p. 1000.) In contrast, here, the examination by Dr. Carpenter was inconclusive. Additionally, mother argues that, unlike the situation in In re Clara B., here, Mark’s statements were consistent with the injury suffered by Ashley and Ashley did not display any other symptoms of abuse, such as precocious sexual play or fear.
The evidence in the present case supporting the lower court’s finding of jurisdiction was not primarily based on Dr. Carpenter’s evaluation. Rather, the court emphasized the credibility of and consistency in Ashley’s statements and the fact that she did not complain of digital penetration to someone else when her mother or father washed her. The court’s consideration of Ashley’s statements distinguished this case significantly from In re Clara B., and made the evidence in the present case different, but not weaker, than that in In re Clara B. The victim’s statements in In re Clara B. were not considered for the truth of the matter because the trial court determined that the minor did not understand the duty to tell the truth. (In re Clara B., supra, 20 Cal.App.4th at pp. 997-999.) Here, there was no dispute that Ashley understood the duty to tell the truth and her statements were admitted into evidence. Thus, evidence not present in In re Clara B. supported the finding of jurisdiction in the present case.
The other case cited by mother, In re Sheila B., supra, 19 Cal.App.4th 187, considered an appeal from a juvenile court’s dismissal of a section 300 petition. The appellate court acknowledged its duty to review the appellate record for substantial evidence and concluded that the record supported the dismissal. (In re Sheila B., supra, at p. 200.) The child in In re Sheila B., recanted her allegations of sexual abuse. (Ibid.) Mother focuses on the fact that medical professionals in In re Sheila B. could not state definitively that the minor had been sexually abused. (Id. at p. 193.) She also maintains that, similarly here, the minor’s statements were inconclusive. As already discussed, Ashley’s statements were significantly consistent and she never recanted her allegations about what Mark had done. More significantly, the appellate court in In re Sheila B. did not hold that the facts did not support jurisdiction as a matter of law, but merely determined that substantial evidence supported the finding that there was no jurisdiction. Indeed, because of the deferential standard of review, the appellate court may have also affirmed a finding of jurisdiction. Accordingly, In re Sheila B. does not benefit mother.
Mother also contends that the evidence established that Ashley complained while being bathed by her mother and her father. It is true that both Mark and mother testified that Ashley cried whenever anyone bathed her. However, Ashley did not report to another person that her mother or father hurt her while bathing her and she never claimed that either one of them put a finger in her “pee-pee.”
Accordingly, we conclude that the record supports the lower court’s finding that Mark sexually abused Ashley.
B. Mother’s Failure to Protect Ashley from Sexual Abuse
Mother argues that the evidence was insufficient to show that she failed to protect Ashley from sexual abuse.
“[A] child comes within subdivisions (b) and (d) of section 300, if he or she has been harmed or abused or is at risk of being harmed or abused.” (In re Carlos T. (2009) 174 Cal.App.4th 795, 803.) Mother focuses exclusively on the record as it relates to her knowing that Ashley was harmed. She maintains that the record does not establish that she knew or should have known that Ashley was at risk of harm as Ashley told the interviewer with CIC that she never told her mother that Mark had hurt her or put his finger in her “pee-pee.” She complains that there was no basis for her to believe or have reason to believe that Mark might sexually abuse Ashley. (See id. at pp. 802-803; In re Rubisela E. (2000) 85 Cal.App.4th 177.)
The record does contain evidence that mother should have known that Ashley was at risk of harm. As the trial court admonished, it was not reasonable for mother to have her live-in boyfriend bathe her four-year-old girl. This was particularly true in a situation where she knew that her daughter was having a problem with a rash on her vagina and needed to have that area cleaned. Furthermore, mother never asked how Mark was bathing her daughter and did nothing to ensure that, at a minimum, he used a washcloth rather than his bare hand when washing Ashley’s vagina. Further, mother never told Dr. Yang about the vulvovaginitis when she took Ashley for an appointment at the end of December 2008, and it is unclear when the irritation began or what the actual cause of it was.
The record also indicated that mother would not protect Ashley and that Ashley was at risk of being abused by Mark. Mother would never directly acknowledge that Mark had sexually abused Ashley. When first told about Ashley’s assertion regarding Mark, mother responded, according to Christopher, that Ashley and Julia exaggerate. Mother told an officer that she did not believe that Mark touched Ashley inappropriately and suggested that Christopher might have reported this incident because he was jealous of her new relationship with Mark. Mother also told Social Worker Slater that Christopher might have coaxed Ashley. Even after mother learned about Ashley’s complaint about Mark, Ashley’s doctor was never informed about this allegation when Ashley’s maternal grandmother took her to Dr. Yang for treatment for vulvovaginitis.
Thus, mother’s failure to protect Ashley in the past and her continuing disbelief that Mark had sexually abused Ashley supported the court’s finding that she would not protect her daughter from further abuse.
III. Jurisdiction over Julia
The juvenile court found that it had jurisdiction over Julia under section 300, subdivision (j). This provision states: “The child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.” (§ 300, subd. (j).)
Here, Ashley has been abused as defined by section 300 subdivision (b) and (d). Mother argues that the record contains no evidence that Julia was at a substantial risk of harm and therefore jurisdiction over her was improper. (See In re Rubisela E., supra, 85 Cal.App.4th at p. 198.) Mother argues that the present situation is unlike the one in In re P.A. (2006) 144 Cal.App.4th 1339, where the appellate court held that the record supported the allegations of risk of harm to two boys under section 300, subdivision (j) when the father had sexually abused their sister. (In re P.A., at pp. 1345-1346.) In In re P.A., the record showed that the siblings were at risk from the father because he had access to the boys and routinely awoke during the night to cover them with blankets. (Id. at p. 1345.) Mother argues that there is no evidence that Julia was ever threatened, subjected to inappropriate conduct, or was impacted by the abuse suffered by Ashley.
Mother also cites In Rubisela E., supra, 85 Cal.App.4th 177. In In Rubisela E., the juvenile court sustained the dependency petition as to an abused 13-year-old girl and upheld the finding of jurisdiction under section 300, subdivision (j) as to the nine-year-old female sibling. (In re Rubisela E., at p. 197.) Although the court concluded the male siblings were not at risk, it held that the female sibling was at risk as the father might focus his abuse on her once the 13-year-old daughter was removed from the home. (Id. at pp. 197-198.)
We disagree that the record does not support a finding of a risk of abuse to Julia. Here both Julia and Ashley are female and young. At the time of the abuse, Ashley was four years old and Julia was six years old. The concerns of the present court were therefore similar to the concerns of the court in In Rubisela E., supra, 85 Cal.App.4th 177, when that court decided that the nine-year-old female sibling was at risk after the father had sexually abused the 13-year-old daughter. (Id. at p. 197.) Here, it was reasonable for the court to conclude that a man who molested a four-year-old girl would be just as likely to molest a six-year-old girl and that she was at risk because mother did not believe that Mark had sexually abused Ashley.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.