In re Miah C. CA2/7 ( 2024 )

Filed 1/12/24 In re Miah C. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MIAH C., a Person Coming B322847
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 22CCJP02284A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
HELIO R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa Brackelmanns, Juvenile Court Referee.
Affirmed in part and dismissed in part.
Sean Angele Burleigh, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
INTRODUCTION
Helio R., father of 10-year-old Miah C., appeals from the
juvenile court’s jurisdiction findings and disposition order
declaring Miah a dependent child of the court and removing her
from his custody and care. Helio argues substantial evidence did
not support the juvenile court’s findings, based in large part on
Miah’s statements Helio tickled her “private parts” while playing
games with her, that he sexually abused Miah. Helio similarly
contends substantial evidence did not support the removal order
at disposition. We conclude that substantial evidence supported
the jurisdiction findings and that Helio’s appeal from the
disposition order is moot. Therefore, we affirm the jurisdiction
findings and dismiss the appeal from the disposition order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Miah’s Mother Suspects and Asks Miah Whether
Helio Abused Her
Miah lives with her mother, Yareth C.; Helio lives in a
separate residence. In 2020 Helio began regularly picking up
Miah from school in the afternoon and dropping her off at
Yareth’s workplace.
One day in April 2022, when Miah was eight years old,
Miah complained to Yareth that her “private parts” were hurting.
2
Yareth noticed the skin around Miah’s genital area was irritated
and began asking Miah whether Helio had touched her. Miah
was initially defensive and denied Helio had done anything. At
one point Yareth asked Miah to “swear to God” that her father
had not touched her vaginal area, and Miah responded she did
not want to swear to God because she did not want God to punish
her. Eventually Yareth held and rocked Miah “like a baby” and,
rather than asking her whether Helio had done anything, asked
Miah if she did not want to be alone with Helio. Miah said she
did not. Yareth again started asking Miah what Helio had done,
and Miah eventually said he “tickles” her leg.
Yareth sent Helio a text message accusing him of touching
Miah inappropriately. Helio denied the allegation, called Yareth
a “psycho,” and accused Yareth of putting words in Miah’s mouth.
Helio stopped picking up Miah from school.
B. Miah Tells a School Nurse, Police Officers, and a
Social Worker That Helio Touched Her Private Parts
A week later, Miah told a nurse at her school “something
really sad happened to [her].” Miah said her father would tickle
her while playing a game called “horsey,” and she pointed to her
genital area to show where he would tickle her. Miah also said
her father would open her legs without permission.
That afternoon, two officers with the Los Angeles Police
Department interviewed Miah at her home. Miah told the
officers that, one day while her father was driving her home from
school, he reached over from his seat, put his hand over her
underwear, and started tickling her “vagina.” Miah also stated
that, since she was about four, her father had touched her
“private part” while tickling her.
3
Later that evening, a social worker for the Department
interviewed Miah. Miah told the social worker that, when her
father would tickle her, he would tickle her in the “wrong places.”
When asked to explain, Miah said her father would tickle her
arms, feet, and legs while she was lying on the bed, but would
also “play peekaboo” by opening her legs and tickling her “private
parts.” Miah told the social worker she did not realize what her
father was doing was wrong. She stated she did not want to tell
her mother because she was afraid she would no longer be able to
see her father.
Miah also described for the social worker an incident at a
water park. While sliding down a slide with her father, Miah felt
his finger touch her genital area, underneath her clothing. Miah
initially told her father she was going to tell her mother, but
Helio said it was an accident. Miah told the social worker that
her father had not touched her private parts under her clothing
any other time.
C. Helio Denies the Allegations
The social worker interviewed Helio, who denied abusing
Miah. According to Helio, Yareth was sexually abused when she
was young, which caused her to be distrustful and assume Helio
was abusing Miah.1 Helio described an incident that occurred
when Miah was four years old. Helio took Miah on a ride at a
theme park that scared and “traumatized” her. That night, when
Miah was at home with Yareth, Miah started crying. Yareth
assumed Miah was crying because Helio abused her but, in
1 Yareth also told the social worker that she was sexually
abused as a child and that she regularly told Miah no one was
supposed to touch her private parts.
4
Helio’s view, Miah was crying because she had a nightmare about
the ride.
When asked about the incident at the water park, Helio
confirmed Miah had accused him of touching her private parts
while they went down a water slide. Helio told Miah that he did
not do it or that it was an accident. Helio denied to the social
worker that he touched Miah underneath her swimsuit and said
that his hands, at most, would have grazed Miah’s legs.
D. Miah Sits for a Forensic Interview
A few weeks later, a specialist at a child advocacy center
conducted a forensic interview of Miah. Miah’s statements about
Helio were similar, but not identical, to her prior statements.
Miah told the interviewer that her father did things with his
hands that, according to Miah, “weren’t really inappropriate.”
She recounted a time when she was lying down, and her father
“opened [her] legs and he used them like . . . doing a peek-a-boo.”
Miah said that she “thought that something was weird because
that’s not normally whatever happens” and that she felt her
father’s beard on her inner thigh. She stated her father had been
opening and closing her legs in that way since she was four years
old.
At another point in the interview, Miah told the
interviewer that her father would tickle “very close” to her
private parts.2 Miah demonstrated by placing her hand on the
table in front of her and telling the interviewer to pretend her
hand was her private part and the surface of the table on each
2 Miah told the interviewer that her “private parts” referred
to her “vagina,” but that her mother did not allow her to use that
word.
5
side of her hand was her legs. With her other hand, Miah then
imitated a walking motion with her index and middle fingers and
walked her hand on the top of the table (i.e., her “legs”) and over
her hand (i.e., her “private part”). However, when the
interviewer asked Miah, “Did your dad ever actually touch your
private part when he was tickling you,” Miah responded: “No. I
don’t know at least. I don’t know.”
Miah also described during the interview the “horsey”
game. Miah would sit on her father’s lap, her father would shake
his leg and foot, and Miah would “pretend like [she] was going
somewhere on a horse.” When asked by the interviewer, “What
about horsey was a bad thing,” Miah responded, “My mom told
me that he could have done something with a part of my body,
and it could have been wrong. . . . I don’t really know if that was
true that he was touching my private parts. . . . I have no idea if
that was true, but my mom says that it could have been.”
E. Miah Recants Some of Her Statements
A week after Miah’s forensic interview, the Department’s
social worker interviewed Miah again. This time Miah stated
that her father never touched her private parts and that she was
confused when she had accused him of doing that. Miah
explained she thought her father may have touched her private
parts because her mother had asked whether he did so and told
her “those things were bad.”
Miah acknowledged that her father would tickle her, but
she pointed to her thighs and abdomen (rather than her genital
area) to show where. Miah also said her father would do the
“walking thing” with his hand while he was driving. Miah
demonstrated (as she had during the forensic interview) by
6
imitating a walking motion with her fingers, and she “walked”
her hand from one of her thighs, over her genital area, to the
other thigh. After seeing Miah’s demonstration, the social
worker asked Miah whether her father would walk his fingers
directly over her genital area as she had demonstrated. Miah
said, “no.”
In her written report, the social worker stated: “During
this interview,” Miah “seemed genuinely confused as to the
allegations and reported being so. . . . [W]hile she did think
father had touched her inappropriately based on what mother
had explained to her was appropriate and not appropriate, upon
analyzing the matter further, she did not think father had done
anything inappropriate to her.”
F. The Department Files a Petition Against Helio, and
the Juvenile Court Denies the Department’s Request
To Detain Miah
The Department filed a petition under Welfare and
Institutions Code section 300, subdivisions (b) and (d),3 alleging
that Helio “sexually abused” Miah by “fond[ling]” her “vagina,
thighs, and lower abdomen” and that such abuse put Miah “at
risk of serious physical harm, . . . danger and sexual abuse.”
At the initial hearing, the juvenile court denied the
Department’s request to detain Miah from Helio. The court
found that, while the Department made a prima facie showing
Miah was a person described by section 300, there were “concerns
by the forensic social worker and the [police] investigator that the
child may have taken cues from mother’s aggressive
3 Undesignated statutory references are to this code.
7
questioning.”4 The court further found that there were
reasonable services available to prevent removal and that
continued custody by both parents would not be detrimental to
Miah.
G. The Department Interviews Miah and Helio Again
An investigator for the Department interviewed Miah
again after the detention hearing. This time Miah stated: “I’m
still trying to learn what good and bad touch is. He’s never
touched me in my private places.” Miah went on to say that,
when her mother had asked whether her father touched her, she
told her mother he did not. However, her mother eventually
convinced her that her father had touched her inappropriately.
Miah stated: “I’m not saying that she (mother) brainwashed me,
but she made it sound convincing. It has happened to her
(mother) before and she was scared.” Miah also said: “I didn’t
want to get my dad in trouble. I was just thinking what she [her
mother] was thinking. I believe her more than I believe myself.”
Miah again stated her father would tickle her legs and
arms. She first told the investigator he tickled her about “once a
month,” but then said “not that much” and not much on her legs.
When asked whether her father played “peekaboo,” Miah said:
“He would open my legs like peekaboo, but I was always wearing
clothes. We were just playing a game. It was nothing
intentional. It didn’t mean nothing.”
4 A social worker for the Department and a Los Angeles
Police Department officer attended Miah’s forensic interview.
Both observed that, during the interview, Miah appeared to be
using language coming from her mother.
8
When asked about her previous statement her father
touched her in the “wrong places,” Miah said she meant “[a]round
[her] private part, but not on top of [her] private part.” When
asked about the incident at the water park, this time Miah said
she did not remember anything happening at a water park,
though she did remember a time her father caught her at the
bottom of a slide and she landed on her father’s hand. Miah told
her father, “I’m going to tell my mom.” However, Miah explained:
“It was a joke. I know he didn’t do it on purpose. I forgot to tell
my mom. It was an accident.”
The investigator noted in her report Miah “made some
conflicting statements and appeared to be protective of her
father.” According to the investigator, “[i]t appear[ed] that
[Miah] wanted to stress . . . that father had not done anything
wrong, and that she had been influenced by mother . . . .”
The investigator also interviewed Helio, who again denied
he had abused Miah and blamed Yareth for “pressur[ing] her to
say those things.” Helio stated said that he used to play “horsey”
with Miah when she was three years old by placing her on his
back, but that he no longer did that. He also said he used to play
peekaboo with Miah when she was two or three years old, but
demonstrated (the more traditional version) by placing his hands
in front of his face.
9
H. The Juvenile Court Declares Miah a Dependent Child
of the Court and Removes Her from Helio
At the combined jurisdiction and disposition hearing, the
juvenile court sustained each count of the petition and declared
Miah a dependent child of the court. The court stated that “these
cases are not easy,” but found that Miah had, “at various times,
described . . . what amounts to sexual abuse.” The court also
found that the “horsey” and leg peekaboo games, and Helio’s
tickling of Mia’s “vulva area,” were red flags. The court removed
Miah from Helio, allowed Helio to have nine hours of monitored
visits each week, and ordered him to participate in sexual abuse
counseling for perpetrators and individual counseling.
Helio timely appealed from the jurisdiction findings and
disposition order. While this appeal was pending, the court
terminated its jurisdiction and issued a custody and visitation
order under section 362.4 granting Yareth sole physical custody
of Miah5; granting Yareth and Helio joint legal custody of Miah;
and ordering the same nine hours of monitored visits each week
for Helio.6 In awarding Yareth custody of Miah, the court found
5 “When terminating its jurisdiction over a child who has
been declared a dependent child of the court, section 362.4
authorizes the juvenile court to issue a custody and visitation
order (commonly referred to as an ‘exit order’) that will become
part of the relevant family law file and remain in effect in the
family law action ‘until modified or terminated by a subsequent
order.’” (In re T.S. (2020) 52 Cal.App.5th 503, 513.)
6 In its disposition order the court had ordered Helio to
participate in individual counseling and sexual abuse treatment.
The court based the custody and visitation order, at least in part,
on the finding Helio had not made substantial progress toward
completing the counseling or treatment.
10
Helio had not made substantial progress toward completion of
the court-ordered counseling. Helio also appealed from the
custody and visitation order.
DISCUSSION
A. Helio’s Appeal from the Jurisdiction Findings Is Not
Moot, but His Appeal from the Disposition Order Is
In juvenile dependency proceedings, an appeal “becomes
moot when events ‘“render[ ] it impossible for [a] court, if it
should decide the case in favor of [the appellant], to grant him
any effect[ive] relief.”’” (In re D.P. (2023) 14 Cal.5th 266, 276;
accord, In re Gael C. (2023) 96 Cal.App.5th 220, 264; In re
Damian L. (2023) 90 Cal.App.5th 357, 369.) “An order
terminating juvenile court jurisdiction generally renders an
appeal from an earlier order moot.” (In re Rashad D. (2021)
63 Cal.App.5th 156, 164; see In re G.Z. (2022) 85 Cal.App.5th
857, 874; In re C.C. (2009) 172 Cal.App.4th 1481, 1488.)
However, “when a juvenile court’s finding forms the basis for an
order that continues to impact a parent’s rights—for instance, by
restricting visitation or custody—that jurisdictional finding
remains subject to challenge, even if the juvenile court has
terminated its jurisdiction. [Citations.] Because reversal of the
jurisdictional finding calls into question the validity of orders
based on the finding, review of the jurisdictional finding can
grant the parent effective relief.” (D.P., at pp. 276-277; see In re
J.K. (2009) 174 Cal.App.4th 1426, 1431-1432; In re A.R. (2009)
170 Cal.App.4th 733, 740.)
Helio argues, the Department does not dispute, and we
agree his appeal from the jurisdiction findings is not moot. The
11
jurisdiction findings were the bases of the custody and visitation
order that gave Yareth sole physical custody of Miah and
required Helio’s visits with Miah to be monitored. Because Helio
has appealed from the juvenile court’s order terminating its
jurisdiction and the custody and visitation order, we can grant
Helio effective relief if he prevails in this appeal. (See In re
Gael C., supra, 96 Cal.App.5th at p. 225 [“‘in most cases . . . for
this court to be able to provide effective relief, the parent must
appeal not only from the jurisdiction finding and disposition
order but also from the orders terminating jurisdiction and
modifying the parent’s prior custody status’”]; In re Rashad D.,
supra, 63 Cal.App.5th at p. 164 [“to the extent an appellant
argues, as here, that the challenged jurisdiction finding resulted
in an adverse juvenile custody order . . ., an appeal from the orders
terminating jurisdiction and awarding custody is necessary”].)
In contrast, Helio’s appeal from the disposition order
removing Miah from his care is moot. Unlike the jurisdiction
findings, the removal order was not a basis for the court’s custody
and visitation order. To the contrary, the court awarded Yareth
physical custody of Miah and required Helio’s visits with Miah to
be monitored because Helio failed to make substantial progress
toward completing the case plan the court had ordered—in
particular, by failing to participate in sexual abuse and
individual counseling.7 Thus, reversing the disposition order
removing Miah from Helio’s care would not provide Helio any
effective relief; he would still be bound by the custody and
visitation order.
7 Aside from challenging the jurisdiction findings, Helio does
not challenge the portion of the disposition order requiring him to
participate in counseling.
12
Nor was removal at disposition required for the court to
issue a custody and visitation order that awarded Yareth
physical custody of Miah and required Helio’s visits with his
daughter to be monitored. “[A]t the disposition stage of a
dependency proceeding, a court may not remove a child from a
parent’s custody . . . unless the court finds there is a substantial
danger to the child and no available services to protect the child
absent removal.” (In re T.S. (2020) 52 Cal.App.5th 503, 515; see
§ 361, subd. (d).)8 That standard, however, does not “apply to
custody and visitation determinations made at a section 364
review hearing concurrent with the termination of juvenile court
jurisdiction.” (In re J.M. (2023) 89 Cal.App.5th 95, 113; see T.S.,
at p. 515 [“There is no statutory language . . . suggesting this
standard be applied when the court issues a custody order upon
the termination of jurisdiction pursuant to section 364.”].)
Instead, the court “‘has broad discretion to make custody [and
visitation] orders when it terminates jurisdiction’” (J.M., at
p. 112), and “‘the court’s focus and primary consideration’” is “‘the
best interests of the child.’” (T.S., at p. 513; see J.M., at p. 113
[“Section 362.4 does not require a finding of detriment under any
8 Section 361, subdivision (d), provides: “A dependent child
shall not be taken from the physical custody of his or her parents,
. . . with whom the child did not reside at the time the petition
was initiated, unless the juvenile court finds clear and convincing
evidence that there would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the child for the parent, . . . to live with the child or otherwise
exercise the parent’s . . . physical custody, and there are no
reasonable means by which the child's physical and emotional
health can be protected without removing the child” from the
parent.
13
circumstances; as a result, courts have applied the best interest
standard in determining appropriate custody and visitation exit
orders at this stage.”].) To obtain reversal of the custody and
visitation order, Helio will have to show, in his later appeal from
that order, the juvenile court abused its discretion because the
order was not in Miah’s best interests. (See J.M., at pp. 112-113;
In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior
Court (2007) 148 Cal.App.4th 285, 300.)
B. Substantial Evidence Supported the Juvenile Court’s
Jurisdiction Findings Under Section 300,
Subdivision (d)
1. Applicable Law and Standard of Review
Section 300, subdivision (d), provides the juvenile court
may adjudge a child a dependent of the court 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 the child’s parent . . . .” As relevant here, sexual
abuse includes “[t]he intentional touching” of the child’s “genitals
or intimate parts, including the . . . genital area, groin, inner
thighs . . . or the clothing covering them, . . . for purposes of
sexual arousal or gratification . . . .” (Pen. Code, § 11165.1,
subd. (b)(4); see In re Mariah T. (2008) 159 Cal.App.4th 428, 439.)
“In reviewing a challenge to the sufficiency of the evidence
supporting jurisdictional findings . . . we ‘consider the entire
record to determine whether substantial evidence supports the
juvenile court’s findings.’ [Citations.] ‘Substantial evidence is
evidence that is “reasonable, credible, and of solid value”; such
that a reasonable trier of fact could make such findings.’” (In re
14
L.W. (2019) 32 Cal.App.5th 840, 848; accord, In re J.S. (2021)
62 Cal.App.5th 678, 685.) In reviewing for substantial evidence,
“a reviewing court should ‘not reweigh the evidence, evaluate the
credibility of witnesses, or resolve evidentiary conflicts.’” (In re
Caden C. (2021) 11 Cal.5th 614, 640; see In re Nathan E (2021)
61 Cal.App.5th 114, 122 [“‘In making [a substantial evidence]
determination . . . we note that issues of fact and credibility are
the province of the trial court.’”].) “The appellant has the burden
of showing there is no evidence of a sufficiently substantial
nature to support the findings . . . .” (In re E.E. (2020)
49 Cal.App.5th 195, 206; see J.S., at p. 685.)
2. Substantial Evidence Supported the Juvenile
Court’s Jurisdiction Findings
Helio contends substantial evidence did not support the
court’s jurisdiction findings. While the evidence was not
overwhelming, there was substantial evidence supporting the
court’s finding under section 300, subdivision (d), that Helio
sexually abused Miah or that there was a substantial risk he
would do so in the future.
After returning from Helio’s care and complaining to
Yareth that her private parts were hurting, Yareth noticed
Miah’s genital area was irritated, and Miah told Yareth that she
did not want to be alone with her father. One week later, Miah
told the school nurse, police officers, and a social worker that her
father had tickled her private parts or “vagina.” During her
subsequent forensic interview, Miah again stated her father did
things with his hands, such as tickling “very close” to her private
parts; indicated by using her hands to demonstrate how Helio
ticked her that he actually touched her genital area; and said
15
Helio had opened her legs to place his face near her private parts.
The court could reasonably infer based on Miah’s statements that
Helio intentionally touched Miah’s “genital area, groin, [and]
inner thighs” for sexual arousal or gratification (Pen. Code,
§ 11165.1, subd. (b)(4)) and that he would do so again in the
future. (See In re Carlos T. (2009) 174 Cal.App.4th 795, 804
[substantial evidence supported the juvenile court’s finding of
sexual abuse where the child said his father “‘play[ed] with [his]
front private part’” multiple times and touched his “‘butthole’”];
In re P.A. (2006) 144 Cal.App.4th 1339, 1344 [substantial
evidence supported the juvenile court’s jurisdiction findings
where, “although [the child’s] accounts of [her] father’s abuse
varied in the details, each account related essentially the same
two incidents”].)
True, Miah disclosed the abuse only after persistent
questioning from Yareth, and in her last interview Miah recanted
some of her allegations. But it was up to the juvenile court to
determine which version of events was more credible. (See In re
Alexis E. (2009) 171 Cal.App.4th 438, 451 [“Weighing evidence,
assessing credibility, and resolving conflicts in evidence and in
the inferences to be drawn from evidence are the domain of the
trial court, not the reviewing court”]; In re Sheila B. (1993)
19 Cal.App.4th 187, 199 [“an appellate court defers to the trier of
fact . . . and has no power . . . to consider the credibility of
witnesses; or to resolve conflicts in, or make inferences or
deductions from the evidence”].) Consistency in a child’s account
of sexual abuse is not required to support a jurisdiction finding.
(See In re I.C. (2018) 4 Cal.5th 869, 896 [“A child’s account may
reflect uncertainty, and may even contain some contradictions,
and nevertheless warrant the court’s trust.”].) It is not enough
16
that a different factfinder may have made a contrary finding.
(See In re B.D. (2021) 66 Cal.App.5th 1218, 1225 [we “will uphold
the juvenile court’s determinations even where substantial
evidence to the contrary also exists”]; In re J.N. (2021)
62 Cal.App.5th 767, 774 [“‘we do not consider whether there is
evidence from which the dependency court could have drawn a
different conclusion but whether there is substantial evidence to
support the conclusion that the court did draw’”].)
Moreover, the juvenile court had good reason to believe
Miah was telling the truth during her initial disclosures to the
school nurse, police officers, and the Department’s social worker.
By the time Miah recanted her initial allegations, she had a
motive to change her story: to protect her father. During her last
interview with the Department’s investigator, Miah confirmed
she did not want to get her father in trouble and “didn’t want
anything like this to happen.” The investigator observed that
Miah’s conflicting statements appeared to be an effort to protect
her father and convince the investigator she had been influenced
by her mother.9
In addition, there was evidence corroborating Miah’s initial
allegations. During an interview with the Department’s
investigator, Yareth described a similar incident that occurred
when Miah was four, where Miah’s genital area was irritated
after returning from a visit with Helio. Miah told Yareth that
her father had grabbed her and touched her while at a theme
9 Yareth also told the investigator that Miah told a child at
her school what Helio had done, and the child told Miah her
father was going to jail—an additional incentive for Miah to
protect Helio.
17
park—similar to her initial statements her father tickled her
private parts.
Yareth also told the investigator that Miah, while visiting
Helio, would call her crying and ask Yareth to pick her up, but
that Miah did not want to tell Yareth what had happened. The
investigator viewed this incident as one of several warning signs
that indicated grooming behavior by Helio. Finally, the social
worker who initially interviewed Miah concluded that, despite
Miah’s occasionally inconsistent statements, the social worker
believed, “[b]ased on [her] 7 years of experience as a social worker
investigating over 500 child abuse referrals,” Helio’s conduct “was
inappropriate and put child Miah’s well-being and safety at risk.”
(See Casey N. v. County of Orange (2022) 86 Cal.App.5th 1158,
1176 [“[t]he importance of the social worker’s reporting and
recommendations in the dependency process cannot be
overstated”; the court should “give due consideration to the social
worker’s determination and the court may properly rely upon the
agency’s expertise for guidance”]; In re Brian W. (1996)
48 Cal.App.4th 429, 433-434 [“The juvenile court may properly
rely upon a social worker’s report to support a jurisdictional
finding under section 300 as long as the opportunity to cross-
examine the social worker is provided.”].)10
There was also substantial evidence supporting the court’s
implicit finding Helio’s statements were not credible. In addition
to Helio’s strong motive to deny Miah’s allegations, Helio’s
descriptions and explanations of his conduct were not consistent
with Miah’s description of what happened, even after Miah
10 Helio did not ask, and does not contend he was unable, to
cross-examine any of the Department’s social workers or
investigators.
18
changed her version of the events. For example, while Miah
eventually denied Helio directly touched her private parts, Miah
never recanted her allegation she sat on Helio’s lap to play
“horsey.” Helio, however, denied ever playing the game Miah
described, stating he only put Miah on his back. Similarly,
during her final interview with the Department’s investigator,
Miah continued to say Helio would play peekaboo by opening her
legs. Helio said he had not played peekaboo with Miah since she
was a toddler, and even then only placed his hands in front of his
face. And Helio never offered an explanation for why, following
the theme park incident and the last time he picked Miah up
from school, Miah’s genital area was irritated.
Citing In re I.C., supra, 4 Cal.5th 869, Helio argues the
juvenile court cannot exercise jurisdiction under section 300,
subdivision (d), based solely on a child’s hearsay statements
unless the statements have special indicia of reliability. Helio is
incorrect on the law. The Supreme Court in I.C. stated: “‘[T]here
are particular difficulties with proving child sexual abuse: the
frequent lack of physical evidence, the limited verbal and
cognitive abilities of child victims, the fact that children are often
unable or unwilling to act as witnesses because of the
intimidation of the courtroom setting and the reluctance to testify
against their parents. [Citation.] Given these realities, the
categorical exclusion of child hearsay . . . will often mean the
exclusion of significant, reliable evidence required for the juvenile
court to assert its jurisdiction over the child and to ultimately
protect him or her from an abusive family relationship.’” (I.C., at
p. 886; see In re Cindy L. (1997) 17 Cal.4th 15, 29.)
For these reasons, “the traditional hearsay bar has been
modified in the juvenile dependency context to allow courts to
19
consider certain out-of-court statements concerning suspected
abuse . . . .” (In re I.C., supra, 4 Cal.5th at p. 884.) In particular,
section 355 “‘broadly authorize[s] reliance on any hearsay
contained in the social study by a child victim under the age
of 12, as long as an objecting party does not prove that the
statement was procured by means of fraud, deceit, or undue
influence.’” (I.C., at p. 885; see In re Cindy L., supra, 17 Cal.4th
at p. 28, fn. 6.) Section 355 also “makes clear” such hearsay
statements “are sufficient to support a jurisdictional finding.”
(In re Lucero L. (2000) 22 Cal.4th 1227, 1242 (plur. opn. of
Mosk, J.)); see In re E.B. (2010) 184 Cal.App.4th 568, 577 [“Only
‘[i]f any party to the jurisdictional hearing raises a timely
objection to the admission of specific hearsay evidence contained
in a social study’ may the specific hearsay evidence ‘be
[in]sufficient by itself to support a jurisdictional finding or any
ultimate fact upon which a jurisdictional finding is based.’”],
disapproved on another ground in Conservatorship of O.B. (2020)
9 Cal.5th 989.)11
11 Section 355, subdivision (b), provides: “A social study
prepared by the petitioning agency, and hearsay evidence
contained in it, is admissible and constitutes competent evidence
upon which a finding of jurisdiction pursuant to Section 300 may
be based, to the extent allowed by subdivisions (c) and (d).”
Section 355, subdivision (c)(1), provides: “If a party to the
jurisdictional hearing raises a timely objection to the admission
of specific hearsay evidence contained in a social study, the
specific hearsay evidence shall not be sufficient by itself to
support a jurisdictional finding or any ultimate fact upon which a
jurisdictional finding is based, unless. [¶] . . . [¶] (B) [t]he
hearsay declarant is a minor under 12 years of age who is the
subject of the jurisdictional hearing.”
20
In re I.C. involved an “unusual situation” where, shortly
after a three-year-old child was abused by an older child, the
three-year-old child made allegations against her father
“strikingly similar” to the abuse incident involving the older
child. (In re I.C., supra, 4 Cal.5th at p. 896.) The three-year-old
child “had a tendency to interweave fantasy with truth” and,
during her forensic interview, made several demonstrably false
statements after promising to tell the truth. (Id. at p. 894.) The
Supreme Court held “a juvenile court may not base its findings
solely on the hearsay statements of a truth-incompetent child—
that is, a child who may not testify because she is too young to
separate truth from falsehood—unless the child’s statements
bear ‘special indicia of reliability.’” (Id. at p. 875.) Citing the
plurality opinion in In re Lucero L., supra, 22 Cal.4th 1227, the
Supreme Court in In re I.C. stated that “‘relying too heavily on
the hearsay statements of incompetent minors to make
jurisdictional findings when there has been no opportunity for
cross-examining the minor’ [citation]—and, in particular, when
the minor ‘has been determined to be incompetent to distinguish
between truth and falsehood’ [citation]—raises a substantial risk
of erroneously depriving parents of their substantial interest in
maintaining custody of their children.” (I.C., at p. 887; see
Lucero L., at pp. 1244, 1246 (conc. opn. of Kennard, J.).) Nothing
in In re I.C., however, undermines the applicability of section 355
where a minor, like Miah, is old enough, competent, and able to
understand the difference between truth and falsehood. Helio
does not contend Miah was truth-incompetent. And the record is
to the contrary.12
12 At the beginning of the forensic interview, the interviewer
asked Miah several questions to test her ability to understand
21
Helio also contends that, even if he may have touched
Miah’s genital area, the Department “presented absolutely no
evidence to support the conclusion that [he] was sexually
motivated” when he did it, as required by Penal Code section
11165.1. The record does not support Helio’s contention.
“Because intent for purposes of [sexual abuse of a child] can
seldom be proved by direct evidence, it may be inferred from the
circumstances.” (In re Mariah T., supra, 159 Cal.App.4th at
p. 440.)13 Helio focuses primarily on Miah’s description of
“horsey,” asserting there was no evidence to show it was
“anything other than an innocent game.” Were the “horsey”
game the only evidence supporting the jurisdiction findings, Helio
may have a point. But Miah also stated Helio played “peekaboo”
by opening her legs and placing his face against her inner thighs
and answer questions truthfully. For example, the interviewer
asked, “What if I said, hey Miah, how many cats do I have? What
would you say?” Miah appropriately answered, “I have no idea.”
The interviewer also asked Miah “[W]hat if I said, oh Miah, you
told me that you’re in high school right?” Miah correctly
responded, “No, I’m not in high school . . . . I’m in third [grade].”
At another point, the interviewer told Miah, “It’s also super,
super important that what you tell me is the truth,” and asked,
“Do you promise that you will tell me the truth today?” Miah
responded, “Mm-hmm. Yes, I promise.”
13 The court in In re Mariah T., supra, 159 Cal.App.4th 428specifically addressed Penal Code section 288, which makes it a
crime to commit any lewd or lascivious act on a child. (See id. at
pp. 439-440.) Section 288 requires a showing—similar to the
showing required under section 11165.1, subdivision (b)(4)—the
defendant acted “with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or
the child . . . .” (Pen. Code, § 288, subd. (a).)
22
or tickling her private parts. And Miah on multiple occasions did
a demonstration of the “walking thing,” indicating Helio touched
Miah’s genital area and upper thighs. Because there were no
innocent explanations for this behavior, the court could
reasonably infer Helio was sexually motivated or aroused. (See
In re R.C. (2011) 196 Cal.App.4th 741, 750-751 [court could infer
sexual arousal or gratification where the adult was “French
kissing” the child, because “there can be no innocent or lovingly
affectionate tongue kissing of a child by an adult”]; Mariah T., at
p. 440 [court could infer sexual intent where the mother’s
boyfriend, on multiple occasions, “lay down next to [the child] and
fondled her thigh up high near her crotch”].) The latter incidents
were evidence that, when Helio put Miah in his lap during the
“horsey” game, it was not so innocent.
In any event, the court did not have to find Helio had
already sexually abused Miah—i.e., he already had derived
sexual gratification or arousal from his conduct. Under
section 300, subdivision (d), the court only had to find there was
“a substantial risk” Helio would sexually abuse Miah. (See In re
I.J. (2013) 56 Cal.4th 766, 773 [“section 300 does not require that
a child actually be abused,” only “a ‘substantial risk’ that the
child will be abused”].) Given that Helio touched Miah’s genital
area on multiple occasions with no justification, the court could
reasonably infer Helio was likely to progress to more serious acts
of abuse from which he would derive sexual gratification. (See
Los Angeles County Dept. of Children & Family Services v.
Superior Court (2013) 222 Cal.App.4th 149, 164 [“While it is not
possible to say what a particular sexual predator ‘“is likely to do
in the future in any particular instance,”’ it is that uncertainty
that ‘“makes it virtually incumbent upon the juvenile court to
23
take jurisdiction”’ over others at risk”]; see also I.J., at p. 773
[“‘The court need not wait until a child is seriously abused or
injured to assume jurisdiction and take the steps necessary to
protect the child.’”]; In re M.D. (2023) 93 Cal.App.5th 836, 848
[same].)14
DISPOSITION
The juvenile court’s jurisdiction findings are affirmed.
Helio’s appeal from the disposition order is dismissed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
MARTINEZ, J.
14 Because we affirm the jurisdiction findings under
section 300 subdivision (d), we do not consider whether
substantial evidence also supported the jurisdiction findings
under section 300, subdivision (b). (See In re D.P., supra,
14 Cal.5th at p. 283 [“‘“[a]s long as there is one unassailable
jurisdictional finding, it is immaterial that another might be
inappropriate”’”]; In re I.J., supra, 56 Cal.4th at p. 773 [same];
In re J.N., supra, 62 Cal.App.5th at p. 774 [same].)
24