IN RE: R.C. et al.

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Court of Appeal, Second District, California.

IN RE: R.C. et al., Persons Coming Under the Juvenile Court Law. _ R.C. et al., Minors, Appellants, v. K.O., Respondent.

B230643

Decided: October 24, 2011

Deborah Dentler, under appointment by the Court of Appeal, for Appellants. John L. Doss, under appointment by the Court of Appeal, for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In this case, three dependent children, R.C., T.C. and I.C., appeal an order dismissing a subsequent petition which alleged K.O., the father of T.C. and I.C., sexually molested R.C. and T.C. Appellants contend the juvenile court ignored evidence that showed the children were at risk of sexual abuse by K.O. We affirm the juvenile court's order.

FACTS AND PROCEDURAL BACKGROUND

1. The family's dependency history.

In February of 2006, mother brought R.C., then two years old, to a hospital where he was found to be dehydrated.   Mother said she was homeless and recently had been in an abusive relationship.   R.C. was released to maternal grandmother based on substantiated allegations of caretaker absence and emotional abuse.

A referral in August of 2007 as to then two-month-old T.C. was closed as unfounded after the child was found to be in good health.   At the time, R.C. was in the care of a maternal aunt.

In February of 2008, R.C. was returned to mother on an extended visit with family maintenance services.

In June of 2008, the family was the subject of a substantiated referral alleging emotional abuse of R.C. and T.C. by mother's boyfriend, K.O., who had forced his way into mother's home and beat mother in the presence of R.C. and T.C. This resulted in a sustained dependency petition alleging domestic violence by mother's male companion in the presence of R.C., mother's mental and emotional problems, and neglect by mother.   R.C. was removed from mother's care but was returned to her in September of 2008.

K.O. was sentenced to prison as a result of the assault on mother.

2. Initiation of the current dependency case.

On June 28, 2009, the Department of Children and Family Services (the Department) received a referral indicating five-year old R.C., two-year-old T.C. and four-month-old I.C. were at risk of neglect in that R.C. frequently played in a public park in a dangerous area of Long Beach without adult supervision.   A social worker went to the home and found the children alone in an apartment.   When mother returned, she said she had to leave the children sometimes to do laundry.

The children appeared healthy.   R.C. had a facial scar he said was the result of being struck with a wire by maternal grandmother.   R.C. said maternal grandmother also beat his infant sister with a wire, but then admitted he was lying about this.   When the social worker decided to detain the children, R.C. flew into a rage, banged on a table, pointed his fingers at the social worker in the shape of a gun and threatened her.   Mother indicated R.C.'s father had been deported and his whereabouts were unknown;  K.O., the father of T.C. and I.C., was incarcerated.   The Department placed the children in foster care with Ms. F.

The Department filed a dependency petition.   The jurisdiction report included mother's statement she became involved with K.O. in 2006, they never lived together and their relationship was marked by domestic violence.   Mother indicated K.O. tried to kill her when she was pregnant with I.C. Mother obtained a restraining order against K.O. in October of 2008, and she did not hear from him after he was incarcerated.   The report indicated K.O.'s criminal record included being under the influence of a controlled substance, automobile theft, petty theft, driving under the influence and inflicting corporal injury on a cohabitant.

The report indicated mother and maternal aunt have had “much difficulty with [R.C.]'s behavior․”  Maternal aunt indicated “[R.C.] tends to lie a lot” but was doing well in her home.

On September 9, 2009, the juvenile court sustained the petition.

On March 9, 2010, the Department reported the children were doing well in the care of Ms. F. K.O. was released from prison on January 4, 2010, and visited the children on January 26, 2010.   However, R.C. did not want to visit with him.   The social worker noticed R.C. was uncomfortable in K.O.'s presence.   R.C. told the social worker he would not talk to K.O. because “ ‘I hate him,’ ” and “ ‘I like to hate him.’ ”

The foster family agency reported R.C.'s aggressive and defiant behavior increased after he began having contact with K.O. Foster mother had heard R.C. ask K.O. on the phone why K.O. “used to hurt his mother.”   At school, R.C. was reported to be “extremely impulsive and much more advanced with regards to knowing adult content (sex, etc.) than a typical 6–year old.”   R.C. had been suspended from school several times for aggressive behavior, defiance, disruption of class, threatening and using profanity towards female students.   In October of 2009, R.C. was diagnosed with Attention Deficit Hyperactive Disorder.   He was prescribed medication and began attending individual therapy.

On April 1, 2010, the juvenile court found K.O. the presumed father of T.C. and I.C. The juvenile court ordered K.O. to participate in individual counseling to address anger management and domestic violence issues and to provide 10 consecutive clean drug tests.

3. R.C. alleges sexual molestation by K.O.

On July 16, 2010, the Department reported that, on June 3, 2010, there had been a referral alleging sexual abuse of R.C. by K.O. while R.C. was in mother's care.   The report indicated the matter remained under investigation.

In a social report filed September 8, 2010, the Department indicated the allegation had been “substantiated” because R.C.'s statements regarding molestation by K.O. had remained consistent over numerous interviews.   The report stated R.C. disclosed that K.O. “touched his privates including digital penetration with index finger.”

Attached to the social report was a report from the San Bernardino Sheriff's Department which indicated that on July 8, 2010, a deputy interviewed R.C. regarding the sexual abuse allegations.   When the deputy asked if R.C. had ever been touched inappropriately by anyone, R.C. said “yes,” and then said his mother “left him and his siblings home while she went to the laundry.   His mother's friend [K.O.] let himself into the residence.  [K.O.] was with a friend named ‘Bob’. [R.C.] said [K.O.] and BOB took him and his siblings into the bedroom and removed their clothes.  [R.C.] said [K.O.] fondled his genitals and rectal area with his fingers.   He said [K.O.] was clothed during the incident.   He said BOB touched his ․ younger siblings and he observed the incident.   He said [K.O.] inserted his fingers into his but[t], it hurt and made him cry.  [R.C.] said neither suspect talked ․ during the incident.   [¶] [R.C.] said the incident only happened one time.   He recalled the event happening approximately two years ago․  [R.C.] stated he told his mother about the incident and she reported it to the police.   He said he has talked to Police about the incident before and believes [K.O.] was arrested at the time.”

The deputy also reported that, three times during the interview, R.C. “stopped talking and looked at his shoulder.   I asked him what he was doing and he explained to me that the devil was on his left shoulder and an angel was on his right shoulder.   The devil on his shoulder was telling him to lie while the angel told him to tell the truth.   On two incidents he went as far as hitting and pinching his shoulder.   He said he was trying to tell the devil to be quiet.”

The deputy also interviewed R.C.'s foster mother who reported R.C. had never mentioned sexual abuse to her.

On September 10, 2010, the Department filed a subsequent petition under section 342 alleging sexual abuse of R.C. and T.C. by K.O. A detention report indicated that on June 9, 2010, social worker Pelayo interviewed R.C. regarding the allegation.   R.C. indicated mother was at the laundry and he was alone in the living room when K.O. came into the home without mother's permission and molested him.   R.C. said he did not report this incident to mother and it happened “approximately 4 times on different occasions.”   R.C. reported that, “on one occasion, [K.O.] asked [R.C.] to allow [K.O.] to touch his privates and [R.C.] replied ‘no’ but [K.O.] continued touching [R.C.]” When Pelayo asked if K.O. had inserted his fingers inside R.C.'s anus, R.C. replied “yes” and indicated K.O. used his index finger.

Pelayo also interviewed three-year-old T.C. As soon as Pelayo mentioned K.O.'s name, T.C. said, K.O. “touched my ‘pee-pee,’ indicating his private parts.”

Ms. F. told Pelayo that R.C. “tends to lie very often.”   During a therapy session, R.C. “disclosed that his former therapist molested him.”   However, the allegation was investigated and was determined to be unfounded.   Ms. F. also indicated R.C. once attempted to touch T.C. inappropriately and she had observed him “attempting to touch other children inappropriately.”

On June 18, 2010, mother told Pelayo the children had been left alone with K.O. only once at a McDonalds, mother never lived with K.O., K.O. “had not had any type of contact” with R.C., and R.C. had a tendency to lie.

K.O. denied the sexual abuse allegations.   K.O. asserted he lived with mother for three months but R.C. was in foster care during that time.   K.O. had been alone with the children on only one occasion when mother left them with him at a McDonald's while she attended to personal matters.

On June 24, 2010, while K.O. visited his children and Pelayo was supervising R.C., R.C. repeated the statements he made to Pelayo on June 9, 2010, and added that K.O. also had touched T.C.

On September 10, 2010, the Department filed an information for court officer form which indicated mother stated she sometimes left the children with “Randy” when she did laundry.   Randy was her roommate for 16 years and was like her father.   Mother further indicated that on one occasion, about two years ago, mother, Randy and K.O. were in mother's apartment.   Mother heard R.C., who had just showered, scream, “Mom, [K.O.] touched my penis.”   Mother went to R.C.'s bedroom and asked K.O. why he had touched R.C.'s penis.   K.O. laughed and said, “All I did was this,” and tapped R.C.'s penis with his index finger.   Mother told K.O. not to touch R.C.'s penis.   However, mother did not believe the touching had been sexual in nature.   If it had been, she “would definitely have done something about it.”

When asked about R.C.'s claim he was sexually molested by a man named Bob, mother explained R.C. referred to her roommate Randy as Bob. However, mother did not believe Randy was capable of sexually abusing a child as he was about 70 years old.   Mother said R.C. went “through a lot” when she dated K.O. because K.O. did violent things to her in R.C.'s presence.

The jurisdiction report filed October 12, 2010, indicated the District Attorney had declined to prosecute K.O.

On October 14, 2010, the children were removed from the home of Mr. and Ms. F. after an incident of domestic violence between the foster parents in the presence of the children.   While the children were in respite care, R.C. became aggressive toward his siblings and the new caretakers, and he spread feces on the walls and carpet.   As a result, R.C. was separated from his siblings and placed in a group home.

On November 12, 2010, R.C.'s therapist told the social worker that R.C. disclosed anger toward K.O. during therapy and “finally disclosed that he had been sexually molested by him.”   R.C. said things like, “I hate [K.O.], and I don't want him to ever touch me,” and “if [K.O.] ever touches me or my sister and brother, I will, urgh!”   The therapist said R.C. was “very descriptive about the sexual abuse incidents” and said K.O. put his fingers in his butt.   The therapist said R.C. also said K.O. touched T.C.'s penis.   The therapist, who also worked with T.C. for two months, said T.C. would make statements like “[K.O.] ․ put his fingers in [R.C.]” and “[K.O.] touched my pee-pee.”   The therapist noticed an increase in T.C.'s aggressiveness after the allegations of sexual abuse surfaced.

4. Adjudication of the subsequent petition.

On January 12, 2011, the juvenile court commenced the contested adjudication of the subsequent petition.   R.C. testified in chambers that K.O. came to their house when T.C. and I.C. were there, but mother was not.   R.C. indicated K.O. “did something inappropriate.”  “[H]e did sex to [T.C.] and [I.C.]” R.C. demonstrated on a teddy bear that K.O. touched T.C.'s butt and groin.   R.C. testified K.O. locked him in a closet but he was able to see what K.O. was doing to T.C. by lying on the floor and looking through the opening under the closet door.   R.C. said T.C. was naked, laying on his stomach, and K.O. was lying on top of T.C. “doing S–E–X.” When mother came home, K.O. “unlocked [the closet] and then ran out.”   R.C. testified I.C. was present during this incident.   R.C. indicated K.O. touched him in the butt and groin on four occasions when he was four years old.   R.C. was afraid of K.O. and did not want T.C. to visit him.

Under questioning by counsel for the Department, R.C. testified the four incidents occurred when mother was at the laundry or at work and “Martin” was babysitting.   When mother returned from the laundry, R.C. told her that K.O. touched “[T.C.], [I.C.] and me.”   R.C. forgot what mother did in response and claimed he told her K.O. touched him “a lot of times.”   R.C. indicated K.O. never came to the house with anyone else.

The juvenile court inquired whether R.C. was certain I.C. had been present.   R.C. confirmed she had been and indicated K.O. touched her in the butt area.   When asked if R.C. had been in the closet when K.O. touched I.C., R.C. initially said K.O. put him in the closet only once, but then indicated K.O. put him in the closet four times.   R.C. testified that every time K.O. touched R.C. and T.C., he also touched I.C. When the juvenile court asked how I.C. could have been present, given that she had not yet been born when R.C. was four years old, R.C. testified I.C. was alive when he was four years of age.

Upon resumption of the adjudication on January 24, 2011, R.C. testified he told mother “four or five” times that K.O. came to the house and “touched me and T.C. and I.C.” Mother did not seem upset or ask R.C. any questions about the allegation.   R.C. repeatedly indicated Martin would leave when mother returned and, when mother left again, “K.O. comes.”

Mother and K.O. moved to dismiss the subsequent petition.

After the parties argued the motion, the trial court indicated it frequently had been called upon to evaluate the testimony of children R.C.'s age.   The juvenile court noted it previously had found similar allegations credible despite the age of the witness.   However, the juvenile court could not find R.C.'s testimony credible.   The juvenile court noted R.C. did not mention the incident reported by mother in which K.O. allegedly tapped R.C.'s penis.   However, the juvenile court did not believe that incident constituted sexual abuse as it did not appear to have been done for sexual gratification, given that mother was present.

The juvenile court stated, “the very first thing I noticed when he testified, was he said that [K.O.] did something inappropriate, touched him inappropriately, which is not the term I would except a seven year old to use.  [¶] ․ That's a pretty grown-up term for a child, ․ which makes me feel that he's probably been talking to a lot of people about these ․ allegations.”

The juvenile court then indicated the “biggest problem” with R.C.'s testimony was that he described “events that could not possibly have happened.   Clearly, when he was four or even five [years old], [I.C.] was not alive.   Yet he consistently testified in court she was present and was molested by [K.O.]” The juvenile court found that was “a huge problem” because it indicated R.C. was “not accurately recalling what happened.”   The juvenile court noted none of the social reports indicated R.C. had ever previously mentioned that I.C. had been abused.   Although the deputy sheriff's report states “Bob” molested T.C. and I.C. while K.O. molested R.C., R.C. did not mention Bob even though R.C. had been asked several times whether anyone else had been present.  “So, again, that is a major omission in his testimony, and it's a major contradiction with what was in the previous reports․”

The juvenile court concluded that, “because of the ․ major differences in the testimony, the impossibility of some of the facts, and the contradictions,” it could not find the subsequent petition true.   Based on this finding, the juvenile court granted mother and K.O.'s motions to dismiss the petition.

CONTENTION

Appellants contend the juvenile court ignored the weight of the evidence and corroborating evidence that tended to establish the truth of the allegations of the petition.

DISCUSSION

1. Standard of review.

“ ‘ “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.   All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.”   ‘ [Citation.]”  (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378–1379.)

“We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses.  [Citation.]”  (In re Sheila B. (1993) 19 Cal.App.4th 187, 199–200.)  “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.)  “The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.”  (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

2. Substantial evidence supports the juvenile court's order.

Appellants contend R.C.'s testimony was consistent and credible, noting R.C. gave similar accounts of molestation to a sheriff's deputy, his therapist and in court.   Appellants argue R.C.'s claim of sexual abuse was corroborated by T.C.'s report of sexual abuse, the penis tapping incident witnessed by mother, and by K.O.'s violent history.   They note T.C.'s therapist reported that T.C. corroborated R.C.'s accusation and also accused K.O. of sexually abusing T.C. (In re B.D. (2007) 156 Cal.App.4th 975, 984.)   Although R.C. testified I.C. was present and that he was inside a closet, which he had not previously disclosed, appellants claim these inconsistencies do not undermine R.C.'s overall credibility.   Appellants argue the reference to I.C. should be seen as an attempt to protect his younger sibling.   Appellants assert the juvenile court gave R.C.'s use of the word “inappropriate” inordinate weight in making its determination and should have ignored R.C.'s references to an angel sitting on one shoulder and a devil sitting on the other They conclude the juvenile court erroneously dismissed the petition.

These arguments amount to nothing more than an inappropriate request for this court to reweigh the evidence.   In In re B.D., cited by appellants, the juvenile court erroneously excluded evidence which could have corroborated other evidence presented.  (In re B.D., supra, 156 Cal.App.4th at p. 985.)   Here, appellants do not contend the juvenile court erroneously failed to admit corroborating evidence.   Rather, they contend the juvenile court failed to give the corroborating evidence sufficient weight.   However, the case turned on the juvenile court's determination R.C. was not a credible witness and we are not in a position to second guess the juvenile court, which observed the demeanor of the witness first hand.

In any event, R.C.'s therapist did not provide any evidence that corroborated R.C.'s allegation K.O. sexually abused R.C. Rather, the therapist merely repeated R.C.'s allegations.  “Corroborating evidence is ‘[e]vidence supplementary to that already given and tending to strengthen or confirm it [;  a]dditional evidence of a different character to the same point.’   [Citation.]”  (In re B.D., supra, 156 Cal.App.4th at p. 984.)   Further, T.C.'s statements to the therapist that he recalled R.C. being abused and that he himself was abused by K.O. were inherently improbable given that T.C. was at most one year old when the alleged incidents occurred.

Appellants claim R.C.'s allegations were corroborated by the penis tapping incident and K.O.'s history of violent conduct.   However, the juvenile court concluded the penis tapping incident did not constitute sexual abuse based on mother's presence at the time of the incident and K.O.'s violent history did not corroborate the sexual abuse allegations.

Regarding appellants' claim R.C.'s use of the term “inappropriate” does not suggest he was fabricating the allegations of sexual abuse, the juvenile court concluded only that R.C.'s use of this term indicated he had been interviewed many times about the molestation allegations, not that R.C. was fabricating the allegations.

Appellants argue R.C.'s references to an angel sitting on one shoulder and a devil sitting on the other should have been ignored.   However, the juvenile court made no mention of this aspect of R.C.'s statement to the deputy sheriff in dismissing the petition.   Consequently, it appears the juvenile court did ignore this statement.

Appellants' apparent reliance on In re S.A. (2010) 182 Cal.App.4th 1128, is misplaced.  In re S.A. affirmed an order sustaining a petition that alleged a minor had been molested, noting the juvenile court found the minor's testimony credible.  (Id. at p. 1148.)   Here, the juvenile court found R.C.'s testimony was not credible.   Under the same substantial evidence test applied in In re S.A., we must affirm the juvenile court's finding if it is supported by the record.

Turning to the record, appellants essentially concede R.C.'s testimony regarding I.C. was factually impossible, given that she was not alive at the time of the alleged abuse.   Based thereon, the juvenile court concluded R.C. was not “accurately recalling what happened.”   Additionally, R.C.'s testimony conflicted in numerous respects with the statement he gave the deputy sheriff and the account he gave social worker Pelayo.   Appellants concede R.C. had never previously mentioned being locked in a closet.   Also, although R.C. told the deputy sheriff “Bob” was present with K.O., he testified only K.O. had been present.   The juvenile court found this was “a major omission in this testimony․”  The juvenile court concluded, based on the “major differences in the testimony, the impossibility of some of the facts, and the contradictions,” it could not find the subsequent petition true by a preponderance of the evidence.   Because this finding is supported by substantial evidence, we are not at liberty to reverse the order of the juvenile court.

DISPOSITION

The order of the juvenile court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

CROSKEY, J. ALDRICH, J.