In re A.G.
Filed 10/4/13 In re A.G. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re A.G., a Person Coming
Under the Juvenile Court Law.
B246224
(Los Angeles
County
Super. Ct.
No. CK 93620)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JAVIER G.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Anthony Trendacosta, Juvenile Court Referee. Affirmed.
Cameryn
Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
* * * * * *
We affirm the trial court’s jurisdictional and dispositional
order taking jurisdiction over seven-year-old A.G. and removing her from
father’s custody. We reject father’s
challenge to the sufficiency of the evidence to support the findings that he
sexually and physically abused A.G. because the juvenile court found A.G.’s
testimony describing such abuse credible.
FACTS AND PROCEDURE
On
May 22, 2012,
and Family Services (DCFS) filed a petition, which, as later sustained,
alleged: (1) “On prior occasions, the
[child’s] father . . . physically abused the child, in that the
father struck the child with belts and shoes.
Such physical abuse was excessive and caused the child unreasonable
father endangers the child’s physical health and safety, creates a detrimental
home environment and places the child at risk of physical harm, damage, danger,
and physical abuse.†(2) “In 2012 and on
prior occasions, the [child’s] father . . . inappropriately
touched the child, in that the father fondled the child’s bare buttocks. Such sexual abuse of the child on the part of
the father endangers the child’s physical health and safety and places the
child at risk of physical harm, damage, danger and sexual abuse.â€
A.G.,
a first grader, reported that father spanked her with a belt and shoe. A.G. asked the social worker to “make†father
stop hitting her. A.G. also reported
father put his hand in her pants four to five times and rubbed her buttocks
under her pants. She later reported that
he may have done this seven times. On at
least one occasion, A.G.’s grandparents were in the living room when father
rubbed A.G.’s buttocks. A.G. told police
that father caressed her buttocks under her pajamas and underwear. When A.G. asked father to stop, he did. Another time A.G. pulled father’s hand out of
her pants. A.G. reported loving and
missing father and she stated that she would like to live with him when she
turns eight.
Father
believed that A.G. was coached and acknowledged that he had a tense
relationship with A.G.’s mother (mother).
Father consistently visited and communicated with A.G. and was involved
in her life. Father denied rubbing
A.G.’s buttocks under her pants. He
acknowledged helping her in the bath and helping her when she used the
bathroom. Father denied hitting or
kicking A.G. but acknowledged occasionally spanking her.
Mother
reported that A.G. told her father touched her in a bad way by touching her
buttocks. Mother took A.G. to the police
station. Mother saw father hit A.G., and
A.G. told mother that father pinched her.
Mother also reported that father kicked A.G. for an unknown reason.
In
its jurisdictional and disposition report, DCFS concluded it was “unclearâ€
whether the allegations against father were the “result of sexual abuse that
actually took place or due to the animosity between the parents.†DCFS observed A.G. bonded to both father and
mother and reported that A.G. wanted a relationship with father and missed him.
With
respect to disposition, the court accepted in evidence a report from
Dr. Daniel Kramon, who was asked to determine whether A.G. was aware of
the parental conflict and would fabricate allegations. Dr. Kramon opined that “it has not yet
been concluded as to whether or not she [A.G.] was abused but if she was, the
emotional consequences of this needs to be processed in a psychotherapeutic
setting. If she was not abused and has
been coerced to make allegations, the risk of emotional difficulties is
extraordinarily high.†“Either the abuse
occurred or it is a manifestation of the conflict between these parents, with
[A.G.] being coached by her mother.â€
“Both parents are very critical of each other and it is very likely that
[A.G.] has been consistently aware of this.
[A.G.] expressed a significant degree of distress regarding the conflict
between her parents. She indicated that
she wishes that they would both stop arguing with each other and it is
reasonable to conclude that awareness of this conflict and being privy to
negative communication between her parents is and will continue to take an
emotional toll on her unless the degree of conflict is reduced.†Dr. Kramon also concluded that A.G. is
closely bonded with father.
With
respect to the allegations in the petition, A.G. reported to Dr. Kramon that
father inappropriately touched her on her buttocks six or seven times. A.G. stated that father disciplined her by
hitting her with a belt or a sandal.
A.G. wanted to live with father again after he learned his lesson. Father denied most of the allegations but
stated he once scratched A.G.’s buttocks at her request.
A.G.
testified that she felt uncomfortable when father rubbed her buttocks. Father did that more than once. The first time A.G. was six years old and was
in first grade. He rubbed her buttocks
under her clothes. She felt the skin of
his hand on her buttocks. A.G. asked
father to stop. Father rubbed her
buttocks approximately seven other times, each time under her clothing. Each time father rubbed her buttocks, A.G.
and father were watching television in A.G.’s grandmother’s room. Each time A.G. was laying down on the
bed. A.G. testified mother took her to
the police station but mother did not tell her what to say to police. A.G. testified she also felt uncomfortable
when father licked her ear. He licked her
six times on different days.
A.G.
testified father disciplined her by spanking her, and the spankings bruised
her. Once father hit A.G. with her shoe
on her butt. A.G. remembered that father
hit her with a shoe when she was six years old and when she was seven years
old. He also used his open hand to spank
her. He has spanked her more than 10
times. When A.G. was six, father
squeezed her wrist so hard that it bruised.
Father also hit A.G. with a belt one time when she was six.
Father
testified he never rubbed A.G.’s buttocks.
Father testified he never licked A.G.’s ear. Father testified he never hit A.G. with a
shoe or with a belt. Father testified
that he did not grab A.G.’s wrist.
Father’s
cousin Jeanette testified that she was friends with mother but had not
communicated with father for four years.
Jeannette was present when mother asked A.G. about good touch and bad
touch and thought that even though A.G. answered negatively mother kept asking
until she received a positive response.
Paternal
grandfather testified he lived with father and A.G. Paternal grandfather testified that A.G. told
him she loved him and wanted to live with him but mother told her to lie. A.G. told paternal grandfather that mother
wanted her to go to a foster home.
Paternal grandfather testified he told the social worker that no one
inappropriately touched A.G. in his home and that mother told many lies.
Disposition
In
detailed findings, the juvenile court explained: “In this case, the court has a clear
credibility call to make, whether to believe [A.G.] or her Father . . . . It is fair to say that, on the surface, both
testified forcefully and consistently on their behalf.†The court continued: “On balance, the court finds [A.G.]’s
testimony more credible, it is consistent and her demeanor appropriate. It follows, then that if the court finds her
credible as to the inappropriate touching, the court also finds credible her testimony
regarding the physical abuse.†“[T]here
is no doubt in the court[’]s mind that Mr. Garcia inappropriately touched his
daughter on at least 6 occasions and also physically abused her.†The court found father’s relatives who
testified lacked credibility.
The
court ordered A.G. placed in her mother’s custody. It ordered father to attend sex abuse
counseling and individual counseling and it ordered father’s visits
monitored. The court found no reasonable
means to protect A.G. without removing her from father’s physical custody.
DISCUSSION
Father
challenges the jurisdictional findings and disposition. “‘In reviewing a challenge to the sufficiency
of the evidence supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted, supports
them. “In making this determination, we
draw all reasonable inferences from the evidence to support the findings and
orders of the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.†[Citation.]
“We do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the
trial court. [Citations.] ‘“[T]he [appellate] court must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence . . . such that a
reasonable trier of fact could find [that the order is appropriate].â€â€™ [Citation.]â€
[Citation.]’†(
The
standard of review dictates the result in this case. Once the trial court’s credibility findings
are accepted, the record overwhelmingly supports the court’s jurisdictional
findings and disposition. With respect
to sexual abuse, A.G. ‑‑ who the trial court credited ‑‑
testified that father rubbed her buttocks underneath her clothes on multiple
occasions. The trial court’s implicit
finding that father touched A.G. for sexual gratification is supported by
A.G.’s testimony that father placed his hand underneath her clothing and made
A.G. uncomfortable. With respect to the
physical abuse A.G. testified that father hit her with shoes and belts and used
force on her wrist, injuring her. Although
father claims that A.G. testified to these incidents to please mother, the
juvenile court rejected that argument and instead found A.G.’s testimony
credible. Father argues that A.G. could
“well have misconstrued innocent back scratching by her father for something
more sinister,†but that argument also ignores the trial court’s findings.
Although
father vehemently disputes the allegations, the trial court found A.G. more
credible than father, and we cannot overturn the trial court’s credibility determinations. Testimony from a single witness is sufficient
to support the juvenile court’s order. (
Cal.App.4th 94, 104.) There was nothing
inherently improbable in A.G.’s testimony such that it would warrant
rejection. (In re Jordan R. (2012) 205 Cal.App.4th 111, 136 [“To warrant
rejection of the statements of a witness who has been believed by the trier of
fact, it must be physically impossible for the statements to be true, or their
falsity must be apparent without resorting to inferences or
deductions.â€].) Father’s recounting of
the evidence in a manner that suggests mother “repeatedly and aggressively
asked A.G. if anyone had ever touched her in a ‘bad’ way†ignores the trial
court’s credibility determination that father’s relative who testified to that
discussion was not credible.
Father’s
challenge to the trial court’s disposition is not persuasive because father
fails to acknowledge the physical and sexual abuse. Therefore his claim that A.G. would be safe
in his care is belied by the trial court’s findings. While father correctly points out that A.G.
loved and missed him, father does not show that at the time of the
dispositional hearing less drastic alternatives could have prevented a
substantial risk of danger to A.G. In
evaluating the risk, the juvenile court could consider father’s denial of abuse
that the court found had occurred.
The
jurisdictional and dispositional order is affirmed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
