Opinion
B193302
4-24-2007
In re PRISCILLA A., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RAQUEL B. and JOE A., Defendants and Appellants.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant Raquel B. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Joe A. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Leonard L. Linares, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellants Raquel B. (mother) and Joe A. (father) appeal from the dependency courts orders asserting jurisdiction over their children, Priscilla A. and Joseph A. Mother challenges the courts orders as to both children; father challenges the orders only as to Joseph. We affirm.
BACKGROUND
Mother is the natural mother of Priscilla (born Oct. 1997) and Joseph (born Mar. 2004). Father is the presumed father of the children.
Police Report of August 11, 2005
On August 11, 2005, Priscillas aunt took Priscilla to the police station, where Priscilla reported that father had sexually molested her. According to the police report, Priscilla said that on August 3, 2005, father told her to take a shower. Father got in the shower with her, rubbed her vagina, and then inserted his finger into her vagina for about two minutes. He got out of the shower, and told Priscilla that she had "better not tell anyone or else." Priscilla also said that six days later, on August 9, she was watching television in the living room when father approached holding a can of powder. Father told Priscilla to "pour the powder on [his] wiener." Priscilla began to cry, and complied. She told father that she did not want to do it. He said, "Do it for your dad." Priscilla told the police that "it was gross. It was hard and red and there was stuff coming out of it." Father then showed Priscilla photographs of nude men and women from Playboy magazines. On August 10, 2005, Priscilla told mother what father had done. Mother demanded that father leave the residence.
The officer who authored the report later telephoned mother to ask her a question. Mother said that Priscilla had just told her that she had lied about her father because she was upset with him concerning an incident at a baby shower over the weekend in which Priscilla misbehaved. Priscilla then spoke to the officer by telephone and apologized for lying.
Initial Department Contact
On August 19, 2005, the Department of Children and Family Services (the Department) received an anonymous report that Priscilla was the victim of sexual abuse by father and general neglect by mother. Because Priscilla recanted the allegations of abuse to the police, the Department closed the case, and directed mother and father to get counseling for Priscilla.
Police Report of May 10, 2006
On May 10, 2006, a police officer conducted a follow-up investigation by interviewing Priscilla (then 8 years old) at her school. Priscilla repeated the substance of her prior allegations against father. She told the officer that she was in the shower one day when her father reached in and touched her vagina with his fingers. He then got into the shower with her, but kept his boxer underwear on. He touched her vagina with his fingers. She told him to stop, and he did. A few days later, while she was watching television, her father gave her some powder and told her to "pour the powder on his wiener." Priscilla began to cry. Father took her hand and made her touch his "wiener." Priscilla told the officer that fathers wiener was hard and red and some "icky stuff came out of it." Priscilla said that father had not touched her again.
Initiation of Section 300 Proceedings and the Departments Relevant Reports
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Based on Priscillas allegations, Priscilla and her brother Joseph (then two years old) were taken into protective custody by the Department of Children and Family Services, and father was arrested. When questioned by the police, father denied Priscillas allegations, but admitted that he referred to his penis as a "wiener," and that he had been near when Priscilla takes showers.
On May 15, 2006, the Department filed a petition under section 300 alleging that father had sexually abused Priscilla (§ 300, subd. (d)), that Joseph was also at risk of abuse (§ 300, subd. (j)), and that mother failed to protect the children (§ 300, subd. (b)).
The detention report summarized the prior police reports, and attached copies. It also stated that the assigned social worker interviewed Priscilla after she was taken into protective custody. Priscilla recounted to the social worker the incident in which father allegedly "reached in [the shower] and touched her private part." Priscilla began to cry and stated that she wanted to be with her mother, so the social worker asked no further questions.
According to the detention report, the social worker later spoke to mother. Mother said that she thought the matter had been closed because Priscilla had admitted that she lied concerning the alleged sexual abuse by father. The social worker told mother that Priscilla had reported the abuse again after recanting. Mother replied that she did not believe that Priscilla had been abused, and that the maternal grandmother "was putting negative ideas in Priscillas head because she does not want the family together." In a subsequent interview, mother said that she was "willing to kick father out of the house in order to get her children back into her care," and was "willing to do whatever it takes to ensure the safety of her children." The social worker also spoke to father, who denied the allegations of abuse, and stated he did not know why Priscilla would say he had sexually abused her.
A subsequent disposition report contained a copy of a report regarding a child sexual abuse examination performed on Priscilla on May 12, 2006. The report summarized Priscillas statements to the examiner. Priscilla said that one year ago father "went in the shower with me and started touching my private parts." Priscilla had told her grandmother and her mother. Priscillas "tia" took her to the police. Priscilla said that "Mom kick[ed] dad out but when the police started asking questions I told the police `I lied. Dad came back home but when [the] social worker came over this week I told her that dad did touch my private parts in the shower. This only happened [once]." The physical examination of Priscilla did not confirm or negate the occurrence of sexual abuse.
Another supplemental report contained statements by mother and father concerning Priscillas allegations. Mother told the social worker that "the way things came about was one day I came home and my mother was taking care of Priscilla. My mother told me we need to talk. Priscilla went directly to my mom. My mom told me . . . all the details that are in the report. At that time, my mother, she is a difficult person to deal with, she did not allow me to talk to Priscilla. I said Priscilla is going to stay here and we are going to talk. . . . My mother pretty much did not leave me to talk to my daughter. . . . [Priscilla] did not come to me to talk about this. My mom told me everything. . . . My mom was doing pretty much all the talking."
Mother said that she was doing everything she could to take care of her children. As ordered by the court, she was attending sexual awareness and parenting classes.
For his part, father denied Priscillas allegations. Father said: "I think it came from my mother in law. We have never gotten along. . . . She will try to manipulate people, turn people against me."
Adjudication Hearing
The adjudication hearing was held on August 24, 2006. The Department introduced its prior reports into evidence without objection.
Mother testified on her own behalf. She explained that one day in August 2005 she came home from work and her mother asked her if she knew that father had been "touching" Priscilla. Mother asked Priscilla if it was true, but Priscilla "couldnt give . . . a direct answer," "she was crying [and] looking at my mom." Mother called father and told him that she did not want him to come home until she "figure[d] all this out."
Mother also called the assigned social worker to testify. The social worker simply confirmed that she personally had not interviewed Priscilla, and was relying on the prior reports of her statements. She also acknowledged that mother initially made father leave the home in August 2005, and that Priscilla later recanted.
The next day, mother took Priscilla to the police station along with her sister and brother-in-law. Later, as they were driving home, Priscilla began to cry and said that she had lied. As Priscilla was talking, the police officer who had taken the report called mother on her cell phone to ask her a question. Mother told the officer that Priscilla had "just told us something" and wanted to speak with the officer. Priscilla then told the officer that she had lied. Because Priscilla recanted, mother let father return home. Mother did not believe Priscilla was at risk, because Priscilla said that she had lied.
In May 2006, however, Priscilla made the allegations again when the police interviewed her at her school. Father moved out. But then Priscilla told mother that she had lied to the police at her school. Priscilla said that she was scared and felt pressured.
Under questioning by the court, mother was evasive as to whether she believed Priscilla had been molested. She testified that she "believed whatever my daughter tells me," but had "no comment" when asked if she believed Priscilla had been molested.
Priscilla testified in chambers. She remembered talking to the police in August of the prior year and saying that had her father had "touched" her in her "private part" while in the shower and in the living room. She testified, however, that her father had not touched her and that her "grandma told" her to tell the police that her father had touched her.
Priscilla remembered telling the police that father had "made [her] put powder on . . . his private part" that that "gooey stuff came out." But Priscilla knew that gooey stuff came out because "grandma told [her]." Priscilla had never seen her fathers private part. She told the police that she had because "grandma told [her] to . . . when [she] went to her house when [mother] went to the store a long time ago."
During her testimony, Priscilla cried, and said that she did not want to talk about it because "grandma" and her parents would get in trouble. Her grandma was mad at her father and did not like him.
Priscilla testified that when the police visited her at her school, she again accused her father of abuse because she was mad at him. Priscilla denied that she had been touched in her private part and that she had ever seen a mans private part.
Priscilla remembered talking to her mother when they were on a walk and telling her that her father had touched her in the shower and in the living room. But then Priscilla testified that her father was never in the shower with her. Priscilla said that the truth was that her "grandma made [her] say that [she] was touched."
Although Priscilla consistently recanted her allegations of abuse and said that her grandmother was the source of the accusations, there were occasions in her testimony when she appeared to describe the abuse as if it occurred, but then deny that it occurred. Thus, she testified as follows:
"Q [by counsel for the Department]: When you were in the shower, and your dad was in the bathroom with you, what happened?
"A My dad touched me, but my grandma made me say it.
"THE COURT: Was you dad ever in the shower at the same time as you?
"THE MINOR: No.
"THE COURT: You said something about your dad touched you in the living room. You didnt tell that to the police, did you?
"THE MINOR: I think I did.
"THE COURT: You think you did. What happened in the living room?
"THE MINOR: He made me put baby powder on him.
"THE COURT: In the living room?
"THE MINOR: (Minor nods head.)
"THE COURT: And when he did that, what did his private part look like?
"THE MINOR: I dont know.
"THE COURT: You dont know, or you dont remember?
"THE MINOR: I dont know `cause my grandma made me say it."
The Courts Ruling
The court concluded that Priscilla had been sexually abused by father. The court reasoned: "The child was extremely emotional. Her eyes welled up when she talked about what happened, and that certainly can go both ways. She may have been crying about being coached to lie, or she could have been crying about what happened. [¶] There were several instances — I dont know whether they were Freudian slips or not — the minor said what the father did to me . . . oh, I lied. [¶] I would have an extremely, extremely difficult time finding that the grandmother coached the child as to every single word in these police reports. Grandma would have had to write out each scenario, rehearse it, practice it. [¶] When I asked the child if she knows what the male private part looked like, she said no. But in this report she describes everything. She would have to have a phenomenal imagination to come up with the amount of details that she came up [with]."
The court also noted that "the statements of the child a year apart are consistent, with some explainable differences. The child knows too much. . . . [U]nfortunately, the law is a preponderance of the evidence. They need just a feather weight more than the parents, and I see that feather weight. [¶] I see how emotional the girl was. She knows private parts. She knows what happened. The fact that she recanted, that happens a lot. I dont know what pressure was put on her either way, but I dont believe that the maternal grandmother made up an extremely detailed description like that. [¶] . . . It was a tough decision. . . . I didnt make the decision until after hearing closing argument. But the childs emotions and the consistent statements. The fact that the girl did slip several times and did say, what father did to me, what father did to me. Is that true? No, its a lie, but she put it in the positive as to what father did to me. [¶] . . . I cant imagine any mother, when being told details like this, doesnt question the child, doesnt, at the very least, do her own further investigation. [¶] . . . Part of the failure to protect is going into this, what happened. And the mother made it quite clear to me — I believe everything my child says. Do you believe what happened? No. [¶] Mother clearly does not believe this incident happened."
The court sustained the allegations of the petition under section 300, subdivisions (b), (d), and (j), but struck the allegation that the parents had forced Priscilla to lie. The court ordered that Priscilla and Joseph remain in mothers custody, and that father receive reunification services.
DISCUSSION
I. Jurisdictional Findings as to Priscilla
Mother contends that the courts findings that Priscilla was subject to jurisdiction under section 300, subdivisions (b) and (d), were not supported by substantial evidence. The essence of this contention is that the court erred in crediting Priscillas statements to the police rather than her later recantations, and that even if Priscillas statements to the police are credited, they do not constitute substantial evidence of sexual abuse. We disagree.
In determining whether substantial evidence supports the dependency courts findings, "an appellate court does not reassess the credibility of witnesses or reweigh the evidence. [Citation.] Conflicts in the evidence must be resolved in favor of the juvenile courts findings, and the evidence must be viewed in the light most favorable to the judgment, accepting every reasonable inference that the court could have drawn from the evidence. [Citations.] Thus, we must uphold the juvenile courts factual findings if there is any substantial evidence, whether controverted or not, that supports the courts conclusion." (In re S.C. (2006) 138 Cal.App.4th 396, 415.)
A. Finding Under Section 300, Subdivision (d)
Section 300, subdivision (d), permits a finding of dependency if "[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 parent . . . , or the parent . . . has failed to adequately protect the child from sexual abuse when the parent . . . knew or reasonably should have known that the child was in danger of sexual abuse." According to Penal Code section 11165.1: "Any intrusion by one person into the genitals . . . of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose. . . . The intentional touching of the genitals or intimate parts . . . of a child, or of the perpetrator by a child, for the purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed as normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose." (Pen. Code, § 11165.1, subds. (b)(3) & (4).)
In the instant case, substantial evidence supports the dependency courts finding that father had sexually abused Priscilla. On August 11, 2005, Priscilla told the police of two recent incidents: one in which father digitally penetrated her vagina while he was in the shower with her, and the other in which he made her put powder on his "wiener," after which "[i]t was hard and red and there was stuff coming out of it." She repeated the substance of these allegations to the police on May 10, 2006. Shortly thereafter, she told the assigned social worker about the incident in which father "reached in [the shower] and touched her private part," and she told the sexual assault examiner who performed a forensic examination that father "went in the shower with me and started touching my private parts."
It is true that Priscilla recanted the August 2005 allegations the day she made them, and that (at least according to mothers testimony) Priscilla recanted the May 2006 allegations shortly after she made them. Priscilla also testified at the adjudication hearing that the incidents of abuse did not occur, and that her grandmother had forced her to make the accusations. However, the dependency court could reasonably conclude that Priscillas recantations were not credible. As the court noted, Priscillas August 2005 and May 2006 statements to the police contained details unlikely to have been the product of Priscillas imagination or the grandmothers coaxing. Further, the court observed Priscillas testimony, and reasonably interpreted it as describing, at times, the abuse that occurred, but then unpersuasively identifying the grandmother as the source of the accusations.
Mother contends that Priscillas reports of sexual abuse to the police and others are mere uncorroborated hearsay, and under In re Lucero L. (2000) 22 Cal.4th 1227, 1244-1246 (Lucero), cannot constitute substantial evidence. She is mistaken. Priscillas statements appeared in social reports prepared by the Department. Such hearsay statements are competent evidence on which to base a finding of jurisdiction under section 300. (In re Malinda S. (1990) 51 Cal.3d 368, 383; see § 355, subd. (b).)
Moreover, Lucero is inapposite. There, the court considered "whether the hearsay statements contained in a social study of a minor who is the subject of a section 300 hearing, and who is deemed to be incompetent as a witness because of an inability at the time of testimony to understand the obligation to tell the truth and/or to distinguish between truth and falsehood, may be admitted and relied on under section 355 [which authorizes introduction of and reliance on hearsay statements of a child victim in a social study], if such statements fail to measure up to the standards of reliability prescribed in [In re Cindy L. (1997) 17 Cal.4th 15, which recognized a child dependency hearsay exception for statements that possess certain indicia of reliability]." (Lucero, supra, 22 Cal.4th at p. 1231, italics added.) The court in Lucero held that such statements may be admitted, but because of due process concerns cannot be relied upon exclusively, unless the court finds that the time, content, and circumstances of the statements provide sufficient indicia of reliability. (Id. at pp. 1242, 1247.)
Of course, in the instant case, Priscilla was competent to testify, and was fully examined concerning her prior statements. Thus, the specific holding of Lucero does not apply. In any event, Priscillas prior statements do possess indicia of reliability. Her initial allegations in August 2005 were made within days of the date of alleged occurrence. The repeating of the allegations in May 2006 when the police visited Priscilla at her school occurred long after the time Melissas grandmother supposedly forced her to accuse father. As noted by the dependency court, the detailed content of the statements indicated that they were not the product of Priscillas imagination, and the circumstances were such that it was unlikely that Priscilla had simply memorized a script she was forced to repeat by her grandmother. Thus, even if Lucero applies (which it does not), its standards are met. In short, substantial evidence supports the dependency courts finding that father sexually abused Priscilla within the meaning of section 300, subdivision (d).
B. Finding Under Section 300, Subdivision (b)
Section 300, subdivision (b) allows for a dependency finding if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the . . . willful or negligent failure of the childs parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left." In the instant case, the court concluded in substance that father had sexually abused Priscilla, and that mother failed to protect her from the substantial risk of future abuse. Substantial evidence supports the courts finding. As we have noted, substantial evidence supports the courts finding that the sexual abuse occurred. Mother, however, relied on Priscillas recantations while doing little or no investigation of her own, and allowed father to return to the home after the August 2005 police report and before the May 2006 police report. Further, at the adjudication hearing, mother seemingly professed indifference to learning what had actually occurred. On the one hand, she testified that she believed whatever Priscilla told her, but on the other hand she had "no comment" as to whether she thought Priscilla had been sexually abused. Mothers allowing father back into the home after August 2005 and before May 2006, and her failure to take any meaningful steps to investigate Priscillas claims, constituted substantial evidence that mothers negligence subjected Priscilla to substantial risk of further abuse from father. (See In re S.C., supra, 138 Cal.App.4th at pp. 415-416 [mothers permitting molester to remain in home where he could have unsupervised access to child supported finding of dependency under section 300, subd. (b)].)
II. Jurisdictional Findings as to Joseph
Both mother and father contend that the finding that Joseph was subject to jurisdiction under section 300, subdivisions (b), (d), and (j) was not supported by substantial evidence. They contend that fathers abuse of Priscilla (even if true) cannot constitute substantial evidence that Joseph is at substantial risk of abuse. The contention is not persuasive.
As here relevant, section 300, subdivision (d) permits dependency jurisdiction when there is "a substantial risk that the child will be sexually abused," whereas subdivision (j) permits dependency when "[t]he childs sibling has been [sexually] abused . . . and there is a substantial risk that the child will be [sexually] abused." Therefore, "both subdivisions require a finding of a substantial risk that the child who is the subject of dependency proceedings will be sexually abused by a parent or member of the childs household." (In re P.A. (2006) 144 Cal.App.4th 1339, 1347, fn. 6.)
In the instant case, we find two decisions controlling: In re P.A., supra, 144 Cal.App.4th 1339, and In re Karen R. (2001) 95 Cal.App.4th 84. In P.A., the dependency court sustained an allegation that the father had sexually abused his nine-year-old daughter by touching her vagina under her clothes and on top of her underwear, and that such conduct put the daughter, as well as her two brothers, at risk of harm and sexual abuse. (In re P.A., supra, 144 Cal.App.4th at p. 1341.) Relying on In re Rubisela E. (2000) 85 Cal.App.4th 177, the father contended on appeal that there was insufficient evidence to support the allegation that the two male siblings were at risk, because there was no evidence that the father had sexually abused them, they were unaware of any abuse of their sister, and there was no evidence father posed any risk to the boys. (In re P.A., supra, 144 Cal.App.4th at p. 1345.) The Court of Appeal rejected the contention, disagreeing with Rubisela E. and relying on its earlier decision in In re Karen R., supra, 95 Cal.App.4th 84.
The court in P.A. explained: "In Rubisela E., the case relied upon by father, the juvenile court sustained the dependency petition as to an abused 13-year-old girl. (In re Rubisela E., supra, 85 Cal.App.4th at p. 197.) Rubisela E. upheld the juvenile courts assertion of jurisdiction as to a nine-year-old female sibling under section 300, subdivision (j) (abuse of sibling). In re Rubisela E. reasoned a nine-year-old female sibling would be at risk after her thirteen-year-old sister was removed from the home in that father might focus his abuse on his only other daughter. However, Rubisela E. concluded there was insufficient evidence the three male siblings were at substantial risk of sexual abuse. Rubisela E. explained: `We do not discount the real possibility that brothers of molested sisters can be molested (see In re Mark C. (1992) 7 Cal.App.4th 433, 439) or in other ways harmed by the fact of the molestation within the family. Brothers can be harmed by the knowledge that a parent has so abused the trust of their sister. They can even be harmed by the denial of the perpetrator, the spouses acquiescence in the denial, or their parents efforts to embrace them in a web of denial. [¶] . . . But in the case at bench, while such a showing is possible, there has been no demonstration by the department that "there is a substantial risk [to the brothers] that [they] will be abused or neglected, as defined in . . . [the applicable] subdivisions." (Cf., e.g., In re Edward C. (1981) 126 Cal.App.3d 193, 198-199 [where the brothers had witnessed their sisters severe beatings and had been subjects of less harsh physical discipline by their father].) (In re Rubisela E., supra, 85 Cal.App.4th at pp. 198-199.)
"In In re Karen R., supra, 95 Cal.App.4th 84, this court affirmed a jurisdictional finding under section 300, subdivision (d) as to the younger siblings of a sexual abuse victim. In Karen R. the father beat and raped his daughter. The victims younger brother and sister were not present when their father raped their sister. However, they saw their father strike the victim and heard her crying and telling their mother that father had raped her. The mother argued on appeal that there was insufficient evidence to support a finding under section 300, subdivision (d), that her son was at a substantial risk of sexual abuse.
"Karen R. found the son personally had been a victim of sexual abuse as that term is used in section 300, subdivision (d). Karen R. additionally disagreed the son was not at risk of abuse merely because he was a male. In this regard, Karen R. concluded: `[A] father who has committed two incidents of forcible incestuous rape of his minor daughter reasonably can be said to be so sexually aberrant that both male and female siblings of the victim are at substantial risk of sexual abuse within the meaning of section 300, subdivision (d), if left in the home. . . . Given the facts of this case, the juvenile court reasonably could conclude every minor in the home, regardless of gender, was in substantial danger of sexual abuse by father. (In re Karen R., supra, 95 Cal.App.4th at pp. 90-91.)
"We reach the same conclusion here. The abuse in this case concededly is less shocking than the abuse in Karen R. However, this does not mean that Rubisela E. therefore applies. Rather, we are convinced that where, as here, a 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. As we intimated in Karen R., aberrant sexual behavior by a parent places the victims siblings who remain in the home at risk of aberrant sexual behavior." (In re P.A., supra, 144 Cal.App.4th at pp. 1345-1347, fn. omitted.)
We agree with the reasoning of P.A. and Karen R. There is substantial evidence that father committed two acts of sexual abuse against Priscilla, one in which he digitally penetrated her vagina, the other in which he made her assist in his own masturbation. As recognized by Karen R. and P.A., such sexual abuse of a minor daughter is so sexually aberrant that it also places male siblings at substantial risk of sexual abuse. Thus, fathers sexual abuse of Priscilla, in and of itself, constituted substantial evidence that Joseph was also in substantial danger of sexual abuse within the meaning of section 300, subdivisions (d) and (j).
As we have already noted, subdivision (b) of section 300 permits jurisdiction if "there is a substantial risk that the child will suffer [] serious physical harm . . . as a result of . . . the willful or negligent failure of the childs parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left." The risk of sexual abuse against Joseph necessarily raises the risk of serious physical harm. Just as mothers allowing father to return home placed Priscilla at substantial risk, it also placed Joseph at the same risk. Further, the finding of jurisdiction under section 300, subdivision (b) based on mothers conduct makes Joseph a dependent under that subdivision, even if fathers conduct technically did not violate subdivision (b). (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.)
DISPOSITION
The orders are affirmed.
We concur:
EPSTEIN, P. J.
MANELLA, J.