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In Re S.M. et al., Persons Coming Under the Juvenile Court Law. v. W.M


October 17, 2011


(Super. Ct. Nos. JD230151, JD230152, JD230153)

The opinion of the court was delivered by: Nicholson , J.

In re S.M.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant father, W.M., appeals from jurisdictional/ dispositional orders wherein he was denied reunification services with his three biological children because appellant repeatedly raped his stepdaughter, their stepsister, over a four-year period. Appellant contends the juvenile court erred in allowing his stepdaughter, Z.H., to testify at the dispositional hearing outside of his presence. We find there was sufficient evidence to support the juvenile court's decision.

Appellant further contends there is insufficient evidence he raped his stepdaughter, and even if he did that does not mean his own biological children are in danger. Thus, he argues the juvenile court erred in asserting dependency jurisdiction over, and denying him reunification services with, his biological children. We find there is sufficient evidence to support these decisions as well. Accordingly, we affirm the juvenile court's orders.


Appellant and mother have been married for 10 years. Appellant has three biological children with mother: S.M. (born in May 2008), N.M. (born in July 2006), and Sa.M. (born in Jan. 2003). Mother has three other children, to whom appellant is a stepfather: Z.H. (born in Aug. 1995), S.E. (born in Jan. 1997), and S.A. (born in Aug. 1998).

On September 9, 2009, then 14-year-old Z.H., told her teacher, Olivia A., that appellant had been raping her twice a week since she was 10 years old. Z.H. explained that appellant would take mother to work in the morning, then rape Z.H. in the parents' bedroom when he returned.

Two days later, Z.H. gave the same report to police: appellant had been raping her approximately twice a week since she was 10 years old. Z.H. detailed how appellant would use code words, rub her fingers, or send her text messages when he wanted to abuse her. She described how he would sometimes text her or say to her, "Come do my finger." Z.H. also said appellant would check her cell phone to ensure she had erased his text messages.

Z.H. told the police she was last raped by appellant on August 30, 2009. She told police appellant made her sleep in the parents' bedroom while her friends slept in her room. She said that after appellant drove mother to work the next morning he raped Z.H. in his bedroom by putting his penis in her vagina. When asked, Z.H. explained that appellant did not ejaculate inside her, but next to her on the bed.

Other than her friend "Camil," Z.H. had not previously disclosed the abuse to anyone. She had, however, told Camil about the abuse more than one year prior to reporting the abuse to Olivia. The police took all six children into protective custody that same day and referred the matter to the Department of Health and Human Services (the Department) the following day.

The police spoke with Camil, who confirmed that approximately one year before Z.H. reported the abuse to her teacher, Z.H. told Camil that appellant was regularly raping her. Camil also said Z.H. reported that she had a baby as a result of the abuse.

The older siblings, six-year-old Sa.M. (appellant's biological child), 11-year-old S.A., and 12-year-old S.E., all denied being sexually abused by appellant. They did report that appellant, a "UFC fighter," would give them rewards, such as candy or cell phones, when they rubbed or pulled on his injured fingers and toes and squeezed a "ball" on his injured upper thigh.

S.E., then 12 years old, remembered that appellant would talk to Z.H. alone in her bedroom with the door closed. S.E. described appellant as mean and strong, indicating she was afraid of him. S.E. was surprised Z.H. had not told her about the abuse, but burst into tears when the police told her what Z.H. had reported. S.E. also said appellant regularly took away the children's privileges as a form of discipline, including their cell phones and iPods.

S.A., then 11 years old, described appellant as "just a normal dad." She acknowledged that mother worked out of the home and was at work "all the time." She did not, however, believe that appellant raped Z.H. and said he never hurt her. She also indicated that appellant punished the older children by taking away their cell phones and iPods.

As part of their investigation, the police arranged a "pre-text phone call," between Z.H. and appellant. Z.H. was nervous about making the phone call but went forward with it. During the call, appellant never admitted to raping Z.H. and never accepted the assumption that he had.*fn1

The police then contacted appellant directly. Appellant came to the station voluntarily and gave the police his cell phone as well as Z.H.'s cell phone for further investigation. Appellant denied the allegations of rape and denied that he was ever even alone with Z.H. Appellant described his relationship with Z.H. as "really good." He considered her to be his daughter, and he believed she was angry because he had recently taken away her cell phone and iPod as a form of discipline. That, he explained, was probably why she was falsely accusing him of rape. Appellant admitted giving the children rewards for pulling on his fingers and toes. He also acknowledged that he referred to both his fingers and toes as "fingers" when asking the children to pull on them.

Mother spoke to a social worker and said she believed appellant's denials and that Z.H. was lying. Like appellant, mother suggested Z.H. was falsely accusing appellant of rape because Z.H. was angry for having her cell phone and iPod taken away. Mother also thought Z.H. generally believed she and appellant were too strict. Mother said appellant related well to Z.H., and the only time he was alone with Z.H. was when he was talking to Z.H. in her room when she was being disciplined.

The social worker also spoke with Z.H.'s teacher, Olivia. Olivia reported that in February 2009, Z.H. came to her office with a scarf covering her neck. Olivia asked Z.H. to remove the scarf, when she did, Olivia saw that Z.H. had "deep cuts on her neck that were just beginning to heal." Olivia was concerned because the cuts were "very deep" and "not typical for [Z.H.'s] age group."

Z.H. told Olivia that she cut herself because she was "overwhelmed with drama [at] school, her paternal uncle had recently killed himself, and she had recently lost her grandmother." Olivia told Z.H.'s mother about the self-mutilation. Olivia recommended mother get counseling for Z.H., but mother did not think it was necessary. Rather, mother responded by taking Z.H. out of school for the remainder of the year.

On September 15, 2009, six days after the children were taken into protective custody, the Department filed a petition under Welfare and Institutions Code section 300*fn2 alleging the children were all at risk because appellant sexually abused Z.H. and mother failed to protect her.

On September 18, 2009, the juvenile court found all six children came within the provisions of section 300 and ordered them to remain out of the parents' custody. Appellant was ordered to have no contact with the three older children, and reunification services were ordered without prejudice for all of the children.

A combined jurisdictional/dispositional hearing then took place over several days between May 3 and May 27, 2010. At the hearing, the court considered the Department's report as well as testimony from Z.H., S.A., mother, and the social worker.

Consistent with her reports to the Department and the police, Z.H. testified that appellant raped her repeatedly over four years. Z.H. said appellant would rape her after he took mother to work.

Z.H. also testified that she became pregnant and gave birth to a baby as a result of appellant's abuse. When asked details about her pregnancy and the delivery, Z.H. struggled to answer the questions. Z.H. could not remember where she went for her prenatal appointments or how she paid for them. She remembered taking the bus by herself to the emergency room to give birth but could recall few details about the delivery, including how she paid for it. Z.H. said no one knew she was pregnant because she wore large, baggy clothes, but could not remember the exact time line of her pregnancy -- reporting that she was six months pregnant in "May" and gave birth "the following spring."

Z.H.'s half sister, S.A., testified that she was never sexually abused by appellant. S.A. said appellant acted like "a father," and she never felt uncomfortable around him. S.A. was surprised when Z.H. said appellant had been abusing her, but S.A. did not believe Z.H. was lying.

Mother testified that appellant was never alone in a room with Z.H. except for when he was disciplining her. Mother did acknowledge that she worked full-time and thus, was not at home for several hours during the day and sometimes worked night shifts as well.

Mother continued to believe Z.H. was lying about the abuse. Mother explained that it was her idea to reward the children for pulling on appellant's fingers and toes; she did not believe the conduct was sexually motivated. Mother was, however, "concerned" when she learned the children were rubbing appellant's upper thigh.

In a lengthy and detailed decision, the juvenile court sustained the jurisdictional allegations, and on disposition found by clear and convincing proof that the children would be at substantial risk of harm if they were returned to the custody and care of their parents. The juvenile court then denied appellant reunification services pursuant to section 361.5, subdivision (b)(6).

In bypassing appellant for reunification services, the juvenile court relied on the following facts: (1) the severity of the sexual abuse perpetrated on Z.H.; (2) appellant's grooming behavior with the younger children; (3) the significant emotional trauma suffered by Z.H. as a result of the sexual abuse; (4) that it was unlikely the children would be returned to the parents within six months; and (5) the Sacramento Child Advocate's opinion that, although the children may want to be reunified with appellant, it was not in their best interests. The court also took into consideration that there was no history of appellant abusing any of the other children.

Appellant appeals from these orders.



Appellant contends the juvenile court erred in allowing Z.H. to testify out of his presence because there is no evidence Z.H. was afraid to testify in front of him. We disagree.

Subdivision (b) of section 350 provides that in a dependency proceeding, the "testimony of a minor may be taken in chambers and outside the presence of the minor's parent or parents, if the minor's parent or parents are represented by counsel, the counsel is present and any of the following circumstances exist: [¶] (1) The court determines that testimony in chambers is necessary to ensure truthful testimony. [¶] (2) The minor is likely to be intimidated by a formal courtroom setting. [¶] (3) The minor is afraid to testify in front of his or her parent or parents. [¶] After testimony in chambers, the parent or parents of the minor may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents."

Here, minor's counsel asked the court if Z.H.'s testimony could be taken outside appellant's and mother's presence. Minor's counsel represented to the court that given the allegations of long term sexual abuse, the formal setting would be intimidating and, with her parents present, the child would be afraid to testify. The court then asked minor's counsel: "And what have you observed or have you talked with her about that [sic] causes you to believe she would be afraid to testify?" Counsel responded, "She told me so."

Additionally, the social worker's report included the responding police officer's account that Z.H. became "visibly upset and nervous" when asked about the multiple rapes, so upset she began to cry; she again became "visibly upset" and began to cry when she was asked to make the pre-text phone call. The social worker reported Z.H. waited to report the abuse because Z.H. was scared, and she was afraid to go home if appellant was still there.

Based on the representation of minor's counsel and the evidence in the social worker's report, the court found Z.H. was not only emotional, but afraid to testify in front of appellant. Accordingly, the court granted the motion and set up a process whereby appellant could listen to Z.H.'s testimony as she was testifying and communicate with his lawyer simultaneously.

Appellant now contends that the representation of minor's counsel, to which he did not object in the juvenile court, is not evidence because it was not sworn testimony. Moreover, he contends the evidence in the social worker's report showed only that Z.H. was emotional, not afraid. Thus, he argues, there was insufficient evidence to support the court's decision.

We construe the representation made by minor's counsel, without objection from appellant's counsel, as an offer of proof. (In re S.C. (2006) 138 Cal.App.4th 396, 426.) An offer of proof may be considered by the juvenile court in determining whether to permit a minor to testify outside the presence of a parent. (Cal. Rules of Court, rule 5.534(c).) Counsel's offer of proof, supported by the information contained in the social worker's report upon which the court relied, was sufficient to satisfy the requirements of section 350, subdivision (b).


Appellant further contends the juvenile court erred in assuming dependency jurisdiction over his three biological children because, he argues, even if he had raped Z.H. that did not necessarily mean he was a threat to his biological children.

"At the jurisdictional hearing, the court determines whether the minor falls within any of the categories specified in section 300. [Citation.] '"The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child . . . comes under the juvenile court's jurisdiction."' [Citation.] On appeal from an order making jurisdictional findings, we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]" (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)

In support of his claim, appellant argues the Department failed to prove "how each specific minor is at risk based on the abuse of the sibling." Appellant is wrong. In fact, the juvenile court expressly found that appellant was engaging in "grooming" behavior with the younger children, including pulling appellant's fingers and toes, rubbing a "ball" on his injured upper thigh, and laying on his back in exchange for rewards. Such behavior, the court noted, is intended to "desensitize the children and eventually lead the children to inappropriate sexual contact with the adult's body."

Appellant argues the "record does not support the court's classification of this evidence as 'grooming behavior.'" On appeal, we must draw all reasonable inferences in support of the judgment. (In re Veronica G., supra, 157 Cal.App.4th at p. 185.) Appellant was rewarding his children for touching his fingers and toes, as well as his upper thigh. He referred to his toes as "fingers," and when he wanted to abuse Z.H. he used code words, saying "come do my finger." Based on this evidence, it is reasonable to infer that appellant's behavior was intended to prepare the children for future abuse.

Appellant was actively grooming at least one of his biological children, his six-year-old daughter, for sexual abuse. It is thus reasonable to assume appellant's sexual interest in children extends beyond those children who are not his biological relatives. Accordingly, we find the evidence sufficient to support the juvenile court's jurisdictional findings.


Appellant argues there is insufficient evidence to support the denial of reunification services pursuant to section 361.5, subdivision (b)(6). Specifically, appellant argues the "limited evidence" supporting the juvenile court's finding that appellant raped Z.H. repeatedly over a four-year period, "undermine[s] the court's finding that offering [appellant] reunification services would not serve the best interests of his three biological children." Appellant's argument is not supported by the record.

Section 361.5, subdivision (b)(6) provides that "[r]eunification services need not be provided to a parent or guardian . . . when the court finds by clear and convincing evidence, . . . [t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian."

We review a juvenile court's denial of reunification services for substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.)

Z.H. testified that appellant raped her repeatedly from the time she was 10 until she was 14. The juvenile court found Z.H.'s testimony credible in this regard. The court also found Z.H.'s testimony regarding the sexual abuse was supported by the surrounding circumstances including her obvious depression, the home environment, and the consistency of her story. Such evidence is more than sufficient to support the court's finding that Z.H. suffered severe sexual abuse at the hands of appellant.

Appellant nevertheless argues the juvenile court was "clearly uncertain" about whether the sexual abuse even occurred because the court found it was "more probable than not" that the abuse occurred. On the contrary, the juvenile court's finding that it was "more probable than not" that the abuse occurred should reasonably be interpreted as the court recognizing the standard of proof for the juvenile court at the dispositional hearing is clear and convincing, not proof beyond a reasonable doubt. (Shelia S. v. Superior Court (2000) 84 Cal.App.4th 872, 880 [standard of proof at disposition hearing is clear and convincing].) In fact, the juvenile court stated, "As to disposition, there is clear and convincing evidence of the substantial risk to support removal [of the children] from the parents."

Appellant makes no argument for why, after raping Z.H. repeatedly over a period of four years, it would be in his biological children's best interest to participate in reunification services. Rather, he argues the sustained and severe sexual abuse he inflicted on Z.H. does not mean that his biological children are in jeopardy. Appellant's argument fails for the same reasons discussed above.


The orders of the juvenile court are affirmed.

We concur: BLEASE , Acting P. J. MAURO , J.

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