In re K.L. CA2/8 ( 2023 )

Filed 8/24/23 In re K.L. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re K.L., a Person Coming B315137
Under the Juvenile Court Law.
______________________________ Los Angeles County Superior
LOS ANGELES COUNTY Court No. 21CCJP01727A
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Kristen Byrdsong, Commissioner. Affirmed.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
____________________
A father challenges jurisdictional findings and a
dispositional order stemming from allegations he sexually abused
his young daughter. We affirm. Substantial evidence supports
the findings and order. Undesignated statutory references are to
the Welfare and Institutions Code.
In April 2021, the Los Angeles County Department of
Children and Family Services filed a section 300 petition on
behalf of the child, then five years old. The petition detailed
incidents of the father’s abuse and claimed the child was at risk
of serious physical harm and sexual abuse. The petition also
asserted the child’s mother knew or should have known of the
father’s abuse but failed to protect the child.
The juvenile court sustained the petition and removed the
child from the father’s custody in September 2021. The court
found credible the child’s consistent statements about the father’s
abusive conduct.
Recently, the court terminated jurisdiction and entered a
custody order awarding the mother sole legal and physical
custody of the child and granting the father visitation. We take
judicial notice of these orders.
We reach the father’s jurisdictional challenge because the
court’s findings paved the way for the removal order and could
affect future family law proceedings. (See In re D.P. (2023) 14
Cal.5th 266, 276–278 [order remains subject to challenge where it
affects parental custody rights or results in dispositional orders
that adversely affect a parent].)
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We do not reach the jurisdictional findings against the
mother because the father does not attack them separately and
because the mother abandoned her appeal.
We review jurisdictional findings and dispositional orders
for substantial evidence. Substantial evidence is credible
evidence that is reasonable in nature and of solid value. (In re
V.L. (2020) 54 Cal.App.5th 147, 154 (V.L.).) We indulge
reasonable inferences and resolve conflicts in favor of the
findings, examine the record in the light favorable to the juvenile
court’s determinations, and refrain from credibility
determinations. (Ibid.; In re R.T. (2017) 3 Cal.5th 622, 633
(R.T.).)
A higher standard governs review for orders removing a
child, which require clear and convincing evidence at the juvenile
court. (See § 361, subd. (c).) We ask whether the record contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true. (V.L., supra,
54 Cal.App.5th at pp. 149, 154–155.)
For the father, the relevant jurisdictional provision is
section 300, subdivision (d). This subdivision authorizes
jurisdiction if a child has been sexually abused by a parent or
there is a substantial risk of this abuse. Sexual abuse includes
molesting a child, committing lewd or lascivious acts upon a
child, and intentionally touching a child’s intimate parts (or the
clothing over them) for purposes of sexual arousal or
gratification. (§ 300, subd. (d); Pen. Code, §§ 11165.1, subds. (a)
& (b)(4).) Sexual abuse does not include acts that “may
reasonably be construed to be normal caretaker responsibilities;
interactions with, or demonstrations of affection for, the child; or
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acts performed for a valid medical purpose.” (Pen. Code,
§ 11165.1, subd. (b)(4).)
The record satisfies section 300, subdivision (d). The child
consistently disclosed that her father rubbed her vagina over her
clothes, it felt good, she wanted to rub a classmate’s private part
because of what the father had done to her, and she was not to
tell the mother about the touching.
We detail this evidence.
The child’s teacher reported the abuse to the Department
on April 9th, 2021. According to the teacher, the child kicked a
male classmate in his private area. The teacher spoke with the
child, who said she kicked the boy there “ ‘to make him feel good
like daddy.’ ” The child demonstrated how the father touched her
by holding up three fingers and moving them in circles on her
vagina. This was their “ ‘little secret.’ ” The child also reported
the father had her touch his “peeker,” it felt yucky and funny,
and it made him feel good. Afterward, the father would tell her
he loves her and she is cute.
The teacher followed up with the child later in the day.
The child confirmed the father rubbed her private area. She said
she liked “to play that game because it feels like she is flying in
the sky.” The child “demonstrated how she opens her legs wide to
show how she opens her legs when her father[ ] rubs her private
area with three fingers.” The teacher believed the child. The
teacher also believed the incident was recent, as she recently
noticed the child hugged boys more and wanted to kiss them, and
the child started touching herself while she slept. A while back
the child said her vagina hurt, and she “was really red and itchy.”
Later in the day of the referral, the child told police her
father touches her private parts while she has underwear on;
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then he tells her he loves her. The child showed how the father
touched her by placing her palm against her vagina. She said her
father sometimes used a spoon or a spatula to touch her.
According to the child, the father told her not to tell her mother
because the mother would get mad.
The child confirmed to a social worker that she wanted to
rub her classmate’s private parts and that her father touched her
private parts. She said, “ ‘He rubs me round and round because
it’s fun for me.’ ” The child demonstrated how the father touched
her by rubbing a stuffed animal between its legs in a circular
motion. She said she wore clothes when her father touched her.
The father did it because she liked it, the child reported, and he
told her it was okay if someone touches her private part. He
asked her to keep “the rubbing” a secret.
The child had a forensic interview later in April 2021. She
confirmed she “was just trying to rub” her classmate’s private
part and she thought about it because of her father “rubbing me
in my private. . . . Daddy rubs me in my private and feels like I’m
on the beach.” He used his hands and a spatula to do this, she
said. The child reported her father’s hand tickles her privates
over her clothes and it feels great. She demonstrated how the
father moved his fingers in an up and down/back and forth
motion. The father would say: “ ‘I love you . . .and I like tickling
you.’ ”
During a forensic examination near the end of April, the
child told a nurse she tried to rub her friend’s private part. She
reported her father “ ‘touched me here (patient grabs genital
area) with his hand and spatula in the kitchen.’ ”
In May 2021, the child told another social worker she
wanted to rub her friend’s “private.”
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The investigating detective who took the case after the
initial police report believed the child, and he believed her
statements were consistent. He planned to submit the case to the
District Attorney’s office.
Finally, in July 2021, the child testified she wanted to rub
her classmate’s private part because “it feels like the beach every
time when daddy does it to me.”
This is substantial evidence the father sexually abused the
child. (See § 300, subd. (d).) And from this evidence, a
reasonable trier of fact could have found it highly probable the
child would remain at risk of harm if returned to her father’s care
and no reasonable means short of removal could protect her. (See
§ 361, subd. (c)(1); V.L., supra, 54 Cal.App.5th at pp. 156–157.)
At the juvenile court, the father denied any wrongdoing—
until he refused to answer questions on the advice of counsel. He
painted his child as imaginative and unbelievable. He did not
enroll in “any services or programs to address the issues of this
case.” These actions signal the father lacked the willingness or
ability to change his behavior such that alternatives to removal
(like in home services) would be ineffective. And while the father
maintains on appeal that there was a “strong support system” in
the family home, the supporters he identified—the mother and
her father—apparently were unwilling or unable to view the
father as an offender.
The father says the juvenile court erred in believing the
child. He essentially argues the child’s statements against him
are entitled to no weight because she included fantastical details
and contradicted herself, and because an interviewer was
suggestive. For example, the child told police she had a snoring
tiger in her attic, and she told the forensic interviewer the
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father’s spatula looked like a black cat. The father notes various
people said the child had a vivid or active imagination.
The juvenile court reasonably concluded the child’s April
2021 statements were credible and imagination did not explain
them. The child provided a consistent outline of her father’s
actions at each telling that month, and she described realistic
acts using words consistent with her age.
It is true, during her testimony, the child ultimately denied
anyone touched her private areas. But this happened after she
spontaneously acknowledged the father’s touching, as we
recounted above. And it happened after the child acknowledged
the judge would decide whether her father could return home.
The child thus underscored a reason this testimony was less
credible than her previous reports. The juvenile court rationally
determined the consistent nature of the child’s initial reports—
which were made close in time to the referral, to at least five
different people, before the child learned of any effect of her
statements—made them more credible.
Later in the investigation, the child refused to answer
questions about any touching and shut down when asked about
the abuse, so her therapist stopped discussing the allegations for
a period. Then by August 2021, the child told her therapist
“ ‘nobody unsafe touches me, nobody means nobody!’ ” These
actions and comments similarly did not render the child’s initial,
consistent statements unreliable. It made sense that the child
grew guarded and even hostile weeks and months after her
father had to leave the family home. The child missed her father,
wanted him home, and was “very upset that no one listens to her
and brings her Daddy back home from work.” The child’s retreat
from her initial reporting was understandable, as she seemed to
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connect this reporting to her father’s absence. The juvenile court
reasonably could conclude this retreat signaled the child would be
unlikely to report future abuse. The court also reasonably could
give little weight to the therapist’s remarks in August 2021 that
she did not observe “any behaviors that indicate abuse” or
“troubling warning signs of sexual abuse.”
The father complains a social worker was biased against
him and omitted exculpatory evidence from Department reports.
This witness’s failure to recall details of various reports and
interviews at trial, and her failure to do the follow-up the father
desired in hindsight, did not show bias.
As for the Department’s reports, the detention report noted
the initial police investigation was inconclusive and would be
referred for further investigation; it included the father’s denials;
it noted the mother’s, grandfather’s, and a neighbor’s shock or
disbelief regarding the allegations; and it attached the police
report. The jurisdiction report followed up with the new detective
who took on the case; it attached service logs showing the initial
police investigation was inconclusive; it incorporated the text of
the police report and attached this report; it attached the forensic
examination report; it twice noted the child did not disclose the
father’s touching until one hour and 22 minutes into the forensic
interview, and it referred the court to the disk of this interview; it
documented the child’s and the father’s later refusals to answer
questions about the allegations; it recorded when the child was
untruthful (she made up a cousin); and it noted several times the
child generally was happy and healthy. One Last Minute
Information stated the father’s monitored visits were going well
with no reported concerns; another highlighted recent
information from the child’s therapist that helped the father, and
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it attached the therapist’s letter. The juvenile court
appropriately consulted these reports and appropriately
considered the social worker’s testimony.
The father attacks the juvenile court’s reliance on the
forensic interview. But the father did not object when the court
admitted the interview transcript into evidence. And there is no
transcript in our record to check the father’s claims. Even if
there were, these claims boil down to an improper request that
we reweigh the evidence.
The father maintains the Department’s case was
insufficient because the Department did not identify dates, times,
and other circumstances of the abusive acts. The information,
however, came from a five-year-old.
The father implies the mother’s testimony was more
credible than his daughter’s statements. We may not reevaluate
witness credibility or reweigh the evidence. (See R.T., supra,3 Cal.5th at p. 633; see also V.L., supra, 54 Cal.App.5th at pp.
154, 156, 157 [appellate court views the evidence favorably to the
respondent and disregards conflicting evidence].)
Moreover, any discounting or skepticism of the mother was
reasonable. The mother told a social worker she believed the
daughter and feared the father could be grooming her for
intercourse; then at trial, she tried to clarify her comments to the
social worker and testified in support of the father. The mother
attributed the child’s issues to potty training problems and
testified she applied ointment to address the child’s irritated
private parts using a tongue depressor or a disposable applicator.
But as far as we can tell, the child never discussed touching by
the mother. Instead, the child repeatedly mentioned rubbing of
her private part by the father, while she was clothed.
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DISPOSITION
We affirm the jurisdictional findings and dispositional
order.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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