In re V.K. CA4/3 ( 2024 )

Filed 9/25/24 In re V.K. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re V.K., et al., Persons Coming
Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G063678
Respondent,
(Super. Ct. Nos. 23DP0761;
v. 23DP0762)
E.R., OPINION
Appellant.
Appeal from an order of the Superior Court of Orange County,
Lindsey E. Martinez, Judge. Dismissed.
Jesse McGowan, under appointment by the Court of Appeal, for
Appellant.
No appearance for Respondent.
* * *
E.R. (Mother) appeals from the Orange County juvenile court’s
(the court) dismissal of a dependency petition alleging P.K. (Father) had
abused their children, V.K. and M.K. (Minors). Mother’s appointed counsel
filed a letter brief stating he could not find any arguable issues to raise on
Mother’s behalf, but he requests we independently review the record under In
re Sade C. (1996) 13 Cal.4th 952 (Sade C.). Appointed counsel identified two
issues to assist in our independent review: (1) whether Mother has standing
to challenge the order dismissing the petition; and (2) whether the evidence
showed Minors were persons described by Welfare and Institutions Code
section 300.1 Mother’s counsel also requests we exercise our discretion to
permit Mother to personally file a supplemental brief. (In re Phoenix H.
(2009) 47 Cal.4th 835 (Phoenix H.).)
At the outset, we deny Mother’s request to personally file a
supplemental brief. Mother has not submitted a proposed supplemental brief
since the filing of her counsel’s letter brief in April 2024, and a parent has no
right to file his or her own brief “unless the parent can establish good cause
by showing that an arguable issue does, in fact, exist.” (Phoenix H., supra, 27
Cal.4th at p. 845.) Although we are not required to do so, we have
independently reviewed the record and have not found any arguable issues.
We accordingly dismiss the appeal.2
1 All further statutory references are to the Welfare and
Institutions Code
2 If an appellant does not establish any error, the appellate court
may dismiss the appeal. (Sade C., supra, 13 Cal.4th at p. 994.) Unlike
criminal cases, we are not required to conduct an independent review of
the record. (Phoenix H., supra, 47 Cal.4th at pp. 841-843.)
2
STATEMENT OF FACTS
I.
THE DEPENDENCY PETITION
In July 2023, Minors were taken into protective custody when
V.K. was ten years old and M.K. was eight years old. A few days later, the
Orange County Social Services Agency (SSA) filed a petition pursuant to
section 300, subdivisions (a), (b)(1), and (c). The petition alleged, inter alia,
that Father physically abused M.K. and that V.K. was at risk of physical
abuse in Father’s care. According to the petition, M.K. reported Father struck
him multiple times, grabbed him by the face or neck, and yelled at him after
he spilled milk in June 2023. He was later diagnosed with a concussion,
which was allegedly caused by or exacerbated by Father’s actions. M.K.
reported Father threatened to kill his sister if he disclosed the incident to
Mother. He also reported Father “‘always’” hit him, dragged him through his
own vomit, and called him derogatory terms.
V.K. reported witnessing the “spilled milk” incident in June 2023
and indicated Father had made “threatening gestures” to M.K. in the past.
She also reported Father threatened to kill Mother’s significant other if
Mother discovered the physical abuse. Finally, she claimed Father read her
messages with Mother and recorded her while questioning her about Mother.
Minors both reported they did not want to return to Father’s home.
The petition also alleged Father had unresolved mental health
and anger management issues as well as substance abuse problems. Mother
likewise had a history of mental health issues, and Mother and Father had a
history of domestic violence.
3
II.
DETENTION
Prior to the detention hearing, SSA submitted a report noting
Mother and Father shared joint custody of Minors, and Mother had married
another man in 2020. Father was a Los Angeles County Sheriff “and works in
the Courts” while Mother was a retired Los Angeles County Sheriff. Among
other things, SSA’s report repeated M.K.’s recollection of Father’s abuse. In
addition to the “spilled milk” incident, M.K. reported he vomited after eating
sushi. Father allegedly threw sushi at him, dragged him in the vomit, and
threw him in the shower with no lights on. M.K. also recalled Mother had
told him Father broke into her home on one occasion. According to both
Minors, Mother did not like Father, Father called Mother bad names, Father
previously made a threatening comment about Mother’s boyfriend, and
Father was “mean.”
The report further noted Minors denied any sexual abuse, but
Mother told SSA she was concerned about sexual abuse because M.K.
allegedly mentioned Father “inserted his fingers in . . . [his] anus when . . .
[F]ather wiped him” and called him a “‘Bitch’” when he complained of pain.
Mother also claimed Father broke into her home in 2017.
Father presented a different story. According to SSA’s report,
Father denied any physical abuse or that he threatened to kill anyone. He
said M.K. hit his head and scratched his nose at the pool. According to SSA’s
report, M.K. also previously said he had scraped his nose and forehead at the
pool. Father did not take M.K. to a doctor because a relative who was a doctor
and at the pool said it was not necessary. SSA asked about the incident when
M.K. spilled milk, and Father suggested he was not bothered by it. Instead,
he grabbed M.K. to prevent him from falling from his chair. Father was
4
adamant Minors were “being coached to speak” and that Mother “coerces
[V.K.] to say things.” He suggested he was “being framed as there is
brainwashing going on” and because Mother had mental health issues.
Father showed SSA text messages between Mother and V.K. referring to him
and the paternal grandmother in what he believed was derogatory terms.
Father also was concerned Minors were sexually abused and noted Mother’s
ex-boyfriend was a rapist. V.K. apparently told him Mother hit her and M.K.
with a cane and Mother’s husband3 “walked around naked” and made her
uncomfortable by staring at her.
SSA’s report further noted Mother took M.K. to the hospital in
June 2023. According to the hospital physician, M.K. said he jumped in the
pool and hit his face on the bottom of the pool the day before the hospital
visit. But Mother told the hospital Father had hit M.K. on the side of the
head, grabbed his chin, and kicked him in the abdomen. The doctor concluded
M.K.’s facial injuries were consistent with hitting the bottom of a pool, but he
could not say what caused M.K.’s concussion.
Relying on SSA’s detention report, Mother applied for a
temporary restraining order. After a hearing, the court detained Minors from
Father and ordered them to remain in Mother’s care. The court also ordered
Mother and Father to not discuss the case in front of Minors and to not
disparage each other in front of Minors. The court further authorized
supervised visitation for Father and denied Mother’s request for a restraining
order.
3 It appears Father referred to Mother’s “boyfriend,” but based on
the facts, we assume he was referring to Mother’s husband.
5
III.
SSA REPORTS PRIOR TO THE JURISDICTION HEARING
Before the jurisdiction hearing, SSA recommended the court
sustain the petition and declare Minors to be dependents of the court.4 SSA
also recommended Minors remain in Mother’s custody, Mother participate in
services, and Father receive enhancement services.
SSA submitted numerous reports from August 2023 to January
2024. As of August 2023, SSA continued to have concerns about Father’s
physical abuse of M.K. and both parents’ mental health because they
expressed mental health concerns about each other. Mother had a history of
post traumatic stress disorder, and Father previously messaged Mother he
had a “‘barrel’” down his mouth. SSA noted Mother and Father had limited
insight into the effects of corporal punishment and unresolved mental health
problems.
In August 2023, Mother told a social worker Minors were afraid
of visits with Father. The social worker told Mother she was concerned about
Mother’s nonverbal communication with Minors and noted Mother always
“wore an expression of deep worry” when Minors returned from visits. The
social worker was worried this suggested Minors should be fearful of the
visits. The same social worker told Minors all she “‘saw was kindness’” in
reference to a visit with Father.
During an August 2023 visit, Father was calm, attempted to
engage Minors, asked questions about their school, complimented them, and
4 During the jurisdiction hearing, SSA later changed its
recommendation and requested the court dismiss the petition and
terminate dependency because it did not have sufficient credible
evidence to sustain the petition.
6
told them he loved them very much. Minors mostly ignored Father, refused to
engage with him, made angry faces, and appeared to be scared.
As of September 2023, Minors’ therapist reported Minors were
“‘extremely traumatized’” and genuinely afraid of Father. She did not believe
V.K. was lying or coached. The therapist recommended visits with Father be
discontinued or reduced.
By the end of September 2023, Minors were still not willing to
engage with Father during visits. Father reported Mother was racist, had a
“mental health history,” faked an injury to no longer work in law
enforcement, and had a “personal vendetta to hurt” him. He acknowledged he
had made derogatory comments about Mother in the past because she was
unfaithful to him.
In October 2023, Mother told SSA that Minors did not want to
attend a visit with Father because they were scared. The visit was ultimately
cancelled as Minors were having physical symptoms from their fear. Mother
also generally reported Minors had behavioral challenges on visit days,
including “gastric distress” from anxiety. She further told SSA Minors were
in “a state of panic” and believed Father would hurt them. On another
occasion, she reported V.K. had nightmares about Father coming to harm
them.
By contrast, Father insisted Mother was “brainwashing” Minors
and had significant mental health issues. He reminded SSA he had provided
evidence Mother talked negatively about him to V.K. through her iPad in
violation of the court’s orders. He believed Mother was not genuinely worried
about Minors’ safety because she waited three days to call authorities
regarding the alleged incident leading to the instant dependency case. He
explained the text messages he had sent to Mother threatening to harm
7
himself were from when he was intoxicated after learning Mother had
cheated on him. He did not believe this incident from nine years ago should
be held against him as the family court had already reviewed the information
and gave him joint custody of Minors. He further claimed Mother pointed and
laughed at him when she was in her car at a prior visit. Finally, he was
deeply hurt by Minors’ unwillingness to interact with him and believed their
behaviors were “highly uncharacteristic.”
Around the same time, V.K. told SSA Father “scoffed” at them.
When asked to clarify, she said Father “does heavy, frustrated sighing, rolls
his eyes, and is ‘exasperated’ when” they refuse to engage with him in visits.
In November 2023, Mother told SSA that M.K. again told her
Father “used to put his fingers into his ‘butt’” and that it happened a lot.
When M.K. complained, Father would call him a “little bitch” and twist his
nipples. SSA followed up with M.K. who initially denied any touching of his
private areas. But M.K. then stated Father “put his finger in . . . [his] . . . butt
and twisted his nipples.” When asked if this happened when Father was
wiping his butt, M.K. said he did not recall details other than it occurred a
few years ago. He denied any recent occurrences.
A few days later, Father sent several old text messages from
Mother to SSA “to show she’s not who she claims she is.” In the messages,
Mother used profanities and made several insults and aggressive comments
to Father.
In the middle of November 2023, SSA reported it was “unclear
why [Minors] [were] not settling peacefully into . . . [M]other’s care when they
have been apart from . . . [F]ather, who is allegedly their source of fear, since
July 12, 2023.” The report continued: “Between 7/12/23-10/4/23, [Minors]
have seen . . . [F]ather 11 times, for one hour or less each visit, with monitors
8
closely supervising. There appears to be some trigger for their increased
anxiety and paranoia but SSA is unclear as to what that may be, since . . .
[Minors] have had such minimal exposure to . . . [F]ather for over 4 months.”
At the end of November 2023, Father sent additional text
messages he had received from Mother to SSA. The messages were from a
few years prior. In one of the messages, it appears Mother said she locked
V.K. in a room.
In December 2023, Father told SSA Minors were happy in his
care prior to the pool incident, and he felt he was being framed. He also
claimed Mother had sent text messages using derogatory terms to refer to
him and the paternal grandmother. Father’s therapist reported Father was
motivated to repair his relationship with Minors, felt the charges against him
were unfounded, and wanted visitation to resume.
Mother reported Minors continued to refuse visits with Father,
were under significant stress, and V.K. had “intrusive thoughts about ‘scary’
scenarios involving . . . [F]ather.” She added Minors had expressed they
wanted to kill themselves and did not want to live anymore. Mother’s
therapist likewise told SSA that Mother had reported V.K. threatened suicide
and was panicking about seeing Father. The therapist had no concerns about
Mother.
V.K. told SSA she had nightmares about Father kidnapping
them, fears going back to Father, and wanted to change her last name. M.K.
told SSA he had nightmares about Father breaking into their home and
worried about going back to Father’s care.
9
IV.
JURISDICTION HEARING
At the jurisdiction hearing in January 2024, the court admitted
SSA’s reports into evidence and heard testimony from Minors, Mother, and
the social workers.
A. M.K.’s Testimony
M.K. testified he stopped visiting Father months ago because he
was scared. He claimed Father hit him and called him a “bitch.” When asked
when Father hit him, M.K. specifically said five years ago when he was
around four years old. He added that Father called him a “bitch” three years
ago. M.K. noted he vomited after Father gave him sushi one time. Father
then hit him and dragged him in the vomit. M.K. claimed the incident
occurred four years ago when he was five years old. He further testified about
the alleged incident when Father hit him for spilling milk and acknowledged
he hit his head at the pool a few days before.
M.K. added that Father told him to go to the bathroom and would
put fingers in his “butt” years ago for two hours at a time. He said it
happened more than one time. He did not tell Mother at the time and instead
told her a few months ago. Later on, M.K. changed his testimony, claiming
Father put fingers in his butt almost every time he saw Father from the age
of five to eight years old. When asked about the duration of this conduct,
M.K. said Father “stopped, the first day” of 2023. Father’s counsel inquired
how M.K. remembered the specific day, and M.K. responded: “Because he just
stopped.” When asked how many fingers Father used, M.K. said four or five
fingers. Father’s counsel asked if M.K. experienced any bleeding, and he said
he did not. When Father’s counsel probed about the two-hour duration of the
conduct, M.K. maintained that he stood touching his toes while Father’s
10
fingers were in his butt for two hours. According to M.K., he did not have his
iPad with him and did not have any conversations with Father during the
entire two hours.
M.K. next testified he thought Father hit V.K. when she dropped
something. M.K. did not see any hitting and V.K. never said Father hit her.
M.K. just assumed Father hit V.K. because he was younger and V.K. was
scared. M.K. further claimed the paternal grandmother was mean to him and
hit him when he was five years old. When asked what caused the hitting,
M.K. did not remember but suggested she came and hit him for no reason
while he was playing with his toys. He also said he did not feel safe with his
paternal aunt and uncle because they defend Father. When asked if he had
seen them defend Father, M.K. said no, but he was guessing they did.
At one point, M.K. said he did not have a “bond” with Father. The
court commented M.K. had a “big vocabulary” and asked if anyone told him
what “bond” meant. M.K. responded he heard it used in movies.
M.K. also mentioned he was scared of being kidnapped by Father
but did not think Father would kidnap him. The court asked if it was a
“stranger danger kind of thing” or “about being kidnapped by strangers.”
M.K. confirmed the court was correct. When asked if M.K. has gotten more
scared of Father in the last year than he used to be, M.K. agreed. Minors’
counsel questioned why M.K.’s fears have increased even though visits with
Father have stopped. M.K. responded he was scared Father would break into
Mother’s home. He said Father previously broke into his maternal
grandmother’s home around five or six years ago. Although M.K. would have
11
only been around two or three years old at the time, he claimed he witnessed
the incident.
M.K. generally denied Mother told him what to say, claimed
Mother did not talk about Father, and said he did not talk to Mother about
Father or the dependency case. Finally, M.K. testified V.K. secretly
communicated to Mother when they were at Father’s home via a chat feature
on V.K.’s YouTube channel. They used code words to refer to Father and the
paternal grandmother.
B. V.K.’s Testimony
V.K. testified Father physically abused M.K. and detailed the
“spilled milk” and sushi incidents. She said she took videos of Father hurting
M.K. on her iPad, but the paternal grandmother deleted the videos. For the
first time, she also claimed Father hit her on three occasions. She
remembered two occasions – one when she dropped a sandwich and one time
when she got an answer wrong on her iPad.
V.K. further testified she was uncomfortable when Father would
lay down with her and would kiss her on the head or cheek. She noted
Father’s arm would be over her chest, and he was in his underwear while she
was clothed. She did not like that her back was near or touching his
“privates.”
According to V.K., Father did not give them “real food,” but she
later testified he gave them spaghetti, eggs and toast, cereal, steaks on
birthdays, and Romanian soup on holidays. She further testified Father left
them alone at night and punished them if they did not call Mother a “whore”
or “slut.”
Regarding the supervised visits, V.K. testified Father “scoffed” at
them and said things about Mother that made her uncomfortable. The latter
12
statements included Father mentioning a nearby train station was where he
and Mother were previously going to buy a home and commenting he did not
know Minors no longer celebrated Christmas because Mother kept switching
her religion. The court asked where V.K. learned the word “scoff,” and she
said at school or from movies. V.K. also claimed Father was intoxicated
during one of the supervised visits. V.K. further acknowledged Father
sometimes took Minors out to places, including the fair and the beach. But
she insisted she did not enjoy time with him.
V.K. agreed she was more scared of Father since the dependency
case started even though she had not been seeing him. She was scared Father
would kill them if they returned to his care. She also testified Mother told
Minors she was afraid Father would hurt them on more than one occasion.
V.K. further explained she talked to Mother through a YouTube
channel when she was in Father’s care. Mother would post a video of their cat
and then V.K. would communicate to Mother through the comments feature.
In their messages, they referred to Father as “tambor” and to the paternal
grandmother as “pina.” V.K. said she came up with those code names, which
are Spanish terms, but she could not explain why she chose those words.
Despite her YouTube communications with Mother, V.K. said
Mother never talked about Father. She claimed Father and the dependency
case never came up in any conversations with Mother, and even when she
told Mother that Father abused them, Mother never said anything bad about
Father. She likewise denied Mother told her what to say or to lie. V.K. added
that she wanted to change her last name to her stepfather’s name, but she
denied ever talking about it with Mother or the stepfather. Finally,
13
throughout V.K.’s testimony, the court noted V.K. took multiple long pauses
when asked questions about Mother.
Toward the end of V.K.’s testimony, Father’s counsel requested
Minors be detained from Mother due to their “emotional trauma.” Counsel
noted V.K. “physically harmed herself by picking at her skin to the point
where she was bleeding” when asked questions about Mother. Minors’
counsel also was “very concerned about . . . [Minors] being in the care of . . .
[Mother]” because there was a “complete decompensation of . . . [Minors]
since the case started, where they’ve . . . fallen apart in the care of . . .
[M]other, despite . . . visits [with Father] even stopping.” The court denied
Father’s request without prejudice.
C. Mother’s Testimony
Mother testified Minors told her about the “spilled milk” incident,
but she had never seen Father hit Minors on any occasion. She filed a child
abuse report against the paternal grandmother because M.K. came home
with a scratch on his shoulder. She also filed several restraining orders
against Father, which were all denied. She maintained Father threatened
her with physical violence for years.
Regarding Minors, Mother testified they became afraid of Father
right after Mother and Father separated and “it progressively got worse.” She
later said she believed Minors were doing better in her care. But she also
agreed Minors were getting stomach aches, crying even though they were not
seeing Father, and had an “exaggerated startle” response. Mother denied
showing any fears of her own to Minors and denied telling Minors what to
say.
In the middle of Mother’s testimony, SSA filed an addendum
report requesting to dismiss the petition and terminate dependency. SSA
14
explained it had reviewed the ongoing testimonies at the hearing and did not
have sufficient credible evidence to sustain a petition. The report also noted
Minors’ therapist recently reported Minors appeared “to be in the middle of a
high conflict family law custody case, which made its way into a dependency
matter.” She believed “the parents’ ongoing conflicts are leading . . . [Minors]
to gravitate toward a ‘healthier’ relationship with . . . [M]other and the
stepfather.” She believed V.K.’s feelings were genuine although exaggerated
at times.
D. First Social Worker’s Testimony
One social worker testified he did not believe there was credible
evidence to sustain the petition, and he did not believe the physical or sexual
abuse allegations against Father were true. His recommendation about the
case changed after witnessing testimony from the parties. He testified he had
never previously recommended to dismiss a case due to a child lacking
credibility in his or her reports of abuse. When asked what parts of the
testimony caused him to change his recommendation, the social worker noted
M.K. claimed Father had punched him when he spilled milk “and part of
what the medical team relied on was him vomiting, being like sensitive to
light . . . . And the child couldn’t recall vomiting during that time, and he
reported he only had a headache.” The social worker added M.K. claimed
Father inserted four or five fingers in his butt, but “[t]here was never any
blood, things of that nature.” Regarding V.K., he noted she seemed like she
did not want to answer some of the questions.
The social worker generally was surprised M.K. shared details
about the alleged sexual abuse he previously could not recall. He noted other
inconsistencies such as M.K. denying going to the beach with Father when he
had. He likewise was surprised by V.K.’s sexual abuse allegations against
15
Father because she had not previously reported it to SSA. The social worker
also agreed the conclusion of a “CAST interview” was that they could not
substantiate the physical or sexual abuse allegations.
The social worker further noted Minors claimed Father was
intoxicated during a visit, but the visit supervisor had no concerns about
Father being intoxicated and SSA had no concerns about Father drinking
excessively or using drugs during the case. The social worker also agreed law
enforcement indicated the family had a history of domestic violence and
abuse without any documented evidence.
Regarding Mother, the social worker said he did not know if she
was emotionally abusing Minors or trying to undermine their relationship
with Father. He thought it was strange Mother would communicate with
Minors through a YouTube account.
Finally, the social worker considered filing an amended petition
with a new count for emotional harm and discussed the issue with his
supervisor and program manager but did not file an amended petition
because it was hard to determine if SSA could prove those allegations.
E. Second Social Worker’s Testimony
Another social worker testified she thought it was possible
Mother could be “coaching” Minors because “some pieces [of the case] didn’t
make sense,” but SSA had no confirmation of “coaching.” The social worker
testified Father was appropriate during supervised visits, and it was
concerning Mother reported to SSA that Minors were scared Father appeared
intoxicated during a visit when the visit supervisor had no similar concerns.
She also was surprised by V.K.’s testimony that Father physically abused
her, and M.K.’s sexual abuse allegations were “out of the blue.” She said it
was possible someone could have suggested to M.K. to make the latter
16
allegations. Finally, she agreed Minors were increasingly upset over the
course of the case regarding visits with Father.
V.
FATHER’S SECTION 350 MOTION AND THE COURT’S ORDER
At the end of the jurisdiction hearing, Father’s counsel relied on
section 350, subdivision (c) and requested the court follow SSA’s
recommendation to dismiss the petition because SSA had not met its burden
of proving the allegations in the petition. SSA agreed it had failed to meet its
burden of establishing jurisdiction under the petition or any alternative
petition.
Minors’ counsel understood why SSA recommended dismissing
the petition but wished SSA had done further investigation because counsel
strongly believed Mother had emotionally abused Minors by coaching them.
Minors’ counsel pointed to the following “circumstantial evidence” of coaching
by Mother: “I’ve never seen a case decompensate so extremely for children
since the case started. To have a 50/50 custody situation for Father go to
visitation, and then the children just insisting they never like being with . . .
Father and couldn’t enjoy being at the beach; they weren’t . . . allowed to
have any joy with Father at Christmas because their religion had been
changed without even discussing [it] with . . . Father; that they wanted to
change their last name; that a new man in [Mother’s] life they insisted was
Dad now. And mainly . . . allegations that are really concerning. The
YouTube videos with the secret code names . . . . These e-mails from [Mother]
trying to manipulate the situation with the social workers; . . . Mother not
bringing the other child to court when she knew she had to; Mother’s
demeanor here in the courtroom; Mother’s testimony, her credibility was just
17
very sketchy at times, nonresponsive, and self-serving; her demeanor starting
straight ahead the entire court proceeding, very odd and very concerning.”
Minors’ counsel added: “[Minors] don’t have the ability to just
make up elaborate lies and set up YouTube channels and change their
religion and call a brand new man that they just met in [Mother’s] life for a
few months “Dad.” They don’t have the ability to do all this without somebody
either strongly influencing them or actually telling them to do it.” Regarding
Father, Minors’ counsel noted there was “nothing on Father,” including no
alcoholism or evidence of domestic violence.
Mother’s counsel disagreed, arguing Mother’s behavior at the
hearing was appropriate and Minors’ were finally comfortable expressing
themselves because they were in Mother’s sole care.
After hearing from the parties, the court dismissed the petition
because there was no credible evidence supporting the allegations in the
petition. The court explained it did not find Minors and Mother credible. The
court noted Minors knew and repeated “particular and specific vocabulary,”
including “‘bonding’” and “‘scoff,’” which the court found unusual. The court
further said Minors “presented canned, similar responses,” “were quick to
know dates and claimed to remember events clearly from as far back as 2017
when [M.K.] would have been 2 years old.” The court added that V.K. took
many long pauses when asked questions about Mother and her testimony
changed from the first to second day. As to Mother, the court noted she did
not answer simple questions, answered questions with another question,
avoided answering, and provided evasive answers to many questions. By
contrast, the court found the social workers to be highly credible.
While the court was concerned Minors may have been coached, it
held there was no actual evidence of coaching. It emphasized it did not have
18
authority to initiate a dependency proceeding against a parent, and “the
proper procedure [required] . . . other counsel [to] have filed a [section] 329
application requesting that petition to be filed, and if . . . [SSA] refused to do
so, should have requested judicial review of that decision.” The court assumed
the latter procedure was not followed because there was no evidence of
coaching or that Mother did the coaching.
Finally, the court noted there was evidence M.K. hit his face on
the bottom of the pool around the same time as the physical abuse
allegations, and the “child abuse pediatrician” could not say what caused
M.K.’s injuries. The court added Father acted appropriately throughout the
case and with Minors, was complaint with everything SSA requested, and
was patient with visits.
Mother timely appealed.
DISCUSSION
We acknowledge this is a very unusual dependency case, but our
independent review of the record has confirmed what Mother’s counsel
determined – there are no arguable issues for our consideration. As noted
ante, Mother’s counsel identified two issues to assist in our review: (1)
whether Mother has standing; and (2) whether the evidence showed Minors
were persons described by section 300.
Assuming, without deciding, Mother has standing, an appellate
court must defer to the juvenile court’s credibility determinations and
findings of fact. (T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 47.) All
conflicts must be resolved in favor of the prevailing party below, and all
legitimate inferences are indulged in support of the decision. (In re Amy M.
(1991) 232 Cal.App.3d 849, 859-860.) We may not express an independent
judgment on the evidence and uphold the court’s determinations even where
19
substantial evidence to the contrary exists. (In re Caden C. (2021) 11 Cal.5th
614, 640.)
Here, substantial evidence supports the court’s credibility
findings. The record shows M.K. reported on events that would have
happened when he was only two or three years old. He remembered unusual
details, including specific dates, and added many new details to the alleged
sexual abuse allegations at trial. Some of the latter details may not have been
plausible to a trier of fact – i.e., M.K.’s assertion that Father put four or five
fingers in his butt for two hours at a time almost every time they saw each
other, but there was no bleeding. There also was abundant evidence M.K. hit
his head at a pool around the same time as the alleged incident that initiated
the instant dependency case.
As to V.K., she testified Father hit her even though she had
consistently reported Father only hit M.K. The record also reflects V.K. took
numerous long pauses and appeared not to answer some questions regarding
Mother. There were some inconsistencies in her testimony regarding her
communications with Mother about Father. She used code names on
YouTube to talk to Mother about Father, but she claimed Mother never
talked about Father. She also said Mother never said anything bad about
Father even after V.K. disclosed his alleged abuse, which the court may have
found implausible given the nature of the allegations. V.K. further claimed
Father was intoxicated at a visit even though the visit supervisor did not
have any similar concerns. It appears V.K. also may have exaggerated some
testimony about the lack of food at Father’s home.
Regarding Mother, the record shows she answered certain
questions with another question and provided some evasive answers. When
asked if Minors ever mentioned the pool or “spilled milk” incidents since
20
M.K.’s hospital visit, Mother claimed she could not recall. The court probed
whether Mother talked to Minors about the latter two incidents before the
dependency case began, and Mother repeatedly testified she could not recall.
Finally, the social workers testified Minors were not credible and that SSA
did not have sufficient credible evidence to sustain the petition. The record
also includes statements from Minors’ counsel insisting Mother’s testimony
was “sketchy” and suggesting Minors were coached to assert “elaborate lies.”
In short, substantial evidence supports the court’s credibility
findings, and we cannot reweigh the evidence in Mother’s favor. While the
resolution of this case appears unsatisfying given the general consensus that
Minors’ emotional wellbeing deteriorated throughout the case, there was
nothing else the court could have done. SSA has discretion with the petitions
it chooses to file, and it appears no party requested SSA amend the petition
to include any new or additional allegations. The court could not have
independently required SSA to do so.
21
DISPOSITION
The appeal is dismissed.
SANCHEZ, J.
WE CONCUR:
GOETHALS, ACTING P. J.
DELANEY, J.
22