In re H.M.

Filed 6/17/08 In re H.M. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Ray M. (Father) appeals the jurisdictional and dispositional orders of the juvenile court that removed his daughter, H.M., from his custody and denied him reunification services. Father argues the courts jurisdictional findings that he sexually abused H.M. were based on unreliable hearsay, and the county family services agency failed to timely disclose to father exculpatory evidence that H.M. also made allegations of sexual abuse against another. Father also contends the court erred when it denied him reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(6)^[1]because the findings were not supported by substantial evidence. He argues the court abused its discretion when it conditioned Fathers right to visitation on his completion of sex offender therapy and his apology to H.M. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and Father were married in June 2000 and H.M. was born in April 2002. In October 2005, the Contra Costa Bureau of Children and Family Services (the Bureau) filed a petition alleging that H.M. was sexually abused by Father as proscribed by section 300, subdivision (d), because Father had pressed his penis against the childs vagina, inserted his finger on the childs vagina and rectum, fondled the childs vaginal area, and licked the childs vagina and nipples with his tongue.^[2] H.M. was ordered detained, but released to Mother and lived with her throughout the dependency proceedings. Father was ordered to have no contact with H.M. until further order of the court.

Concerns about fathers behavior toward H.M. came to the attention of local agencies when Richmond police responded to a 911 call to the family home on October 12, 2005. A female who seemed to be in distress called police and reported that her husband would not allow her to leave home with their child. Father, his sister and his cousin had reportedly confronted Mother about her concerns that Father was sexually abusing H.M., and would not allow her to leave their home with H.M. to go on a planned family trip. Officer Dake responded to the call and spoke privately with Mother who said that she learned from her daughter, H.M., that Father may have been touching H.M. inappropriately. Officer Lynette Parker was second on the scene and also spoke with Mother. Mother told Officer Parker that she noticed H.M. touching herself in a sexual way, and that H.M. had told Mother that Father had touched and placed his finger inside her vagina and rectum. Parker also spoke privately with H.M. As a result of Parkers investigation, police instructed the family that H.M. should stay with Fathers cousin, E.C.

Mother called child protective services the next day. That same day, she also retrieved H.M. from Fathers cousin, and took her on the planned family trip. Father had no contact with H.M. while Mother and H.M. were away. Mother and H.M. returned to California a few days later and H.M. was interviewed by county officials. Following that interview, the Bureau filed a petition on H.M.s behalf on October 27, 2005.

A contested jurisdictional hearing was set for early March 2006, and in January Father moved for weekly visits with H.M. pending the hearing. The court ordered one supervised visit before the next hearing, and allowed the Bureau to determine whether an additional visit was also appropriate. The supervised visit took place a few days later. The visit went well overall according to the social worker who observed, but H.M.s behavior at the end of the visit seemed inappropriately sexualized.

The social worker testified that Father lifted H.M. and hugged her when he said goodbye. H.M. was like blowing in his face. And then right after that he put her down on the floor. . . . Then [H.M.] started . . . wiggling and . . . blowing, going straight to her fathers groin area. The social worker wondered what H.M. would do once she got there. When Father saw H.M. coming, he put his two hands in front and said, No. No. No, [H.M.] The social worker was shocked, and had never seen a child do that before. The following week, the social worker asked H.M. what she was doing blowing at Father, and H.M. said she was blowing in his ear. When asked why she was blowing, H.M. said, Well, thats what you do when you visit your dad. H.M. would not further discuss this incident with the social worker.

H.M. told the social worker that she enjoyed the visit, and wanted to see Father again. Father cancelled another visit that was scheduled a few weeks later because he did not feel comfortable with the visit being supervised by the social worker or her supervisor. At a subsequent court hearing, Father asked the social worker for another visit. Father said he had another [unidentified] social worker who could supervise the visits. The Bureau declined to allow additional visits.

The report prepared for the jurisdictional hearing states that Mother had found [H.M.] sleeping with her finger inserted in her vagina. [Mother] asked [H.M.] about it. [H.M.] reported that her daddy presses the part where his pee-pee comes out. [H.M.] had demonstrated by pressing down and inserting her finger into her vagina. [Mother] also had mentioned that [H.M.] has started to expose herself, pulling down her shirt and sticking out her chest. [H.M.] says that her daddy does this to her and she demonstrates by trying to lick her own nipples. When Mother confronted Father, he denied Mothers suspicions and told [M]other that no one would believe her because of his status in the community [as a firefighter].

The contested jurisdictional hearing began on March 6, 2006, and continued on several dates over the following months until early August. H.M. testified in chambers, out of the presence of her parents. When the court asked H.M. if she would tell the truth, H.M. promised she would. H.M. testified that Father touched her privates where [the] pee-pee comes out, and gestured toward that part of her body. When asked what she liked best about Father, H.M. answered, Hes not touching my private anymore. H.M. confirmed that Father also touched where [she went] poo-poo and her boobies. H.M. did not like it when Father did that.^[3]

Officer Parker was made available for cross-examination concerning her October 12, 2005, interview of H.M. when she responded to the 911 call from the parents home.^[4] Nobody else was in the room when she interviewed H.M. Officer Parker used two teddy bears to allow H.M. to demonstrate how Father had touched her. A white bear represented H.M. and a brown bear represented Father. They established that H.M.s bottom would be called her Poopie Booty and her vagina would be called her Private Part. H.M. first demonstrated how Father bump[ed] [her] poopie booty with both bears touch[ing] each others[] butt[s]. When asked to show what Father did to her private part, H.M. took her index finger, pointed to the middle of her legs and made a back and forth motion. When asked if that hurt, H.M. said,  Yes. I tell him Daddy dont do that.  Officer Parker demonstrated during her testimony the way H.M. moved her finger in and out while pointing to her vagina.

When asked to show with the bears what Father did to her, H.M. had their bottoms touch and then took the brown bear and hit the white bear in the stomach. When Officer Parker asked H.M. what the hitting was for, H.M. said,  Sometimes Daddy hits me hard and sometimes he hits me soft. She was hitting inside the middle of the white bear[]s legs. H.M. also told Officer Parker that Father took showers in her bathroom and she told him it was for girls only. When asked if Father touched her because she needed a bath or needed to be wiped, H.M. said, No. Daddy touches me just because. H.M. denied that Mother or Father ever told her to say something or not to say something like a secret, and H.M. told Officer Parker she told the truth.

Officer Parker described H.M. as friendly, talkative, articulate, and very comfortable in her environment. H.M. was able to formulate her sentences and her words very clearly for a three-year-old, and her language was appropriate for her age. Officer Parker reported that she established to her satisfaction that H.M. understood the difference between fact and fiction.^[5]

Fathers sister, C.H., testified that she went to Father and Mothers home on October 12 when she was concerned Mother was going to take [H.M.] out of state and keep her. C.H. believed Mother made up allegations about Father molesting H.M. to scare Father, because she wanted a divorce. C.H. testified that Mother nodded her head at H.M. when she asked H.M. whether Father had touched her privates. C.H. told Mother she was basically telling [H.M.] to say yes, but Mother did not agree.

The social worker testified about her observation of Fathers January 2006 visit with H.M. During her testimony the social worker demonstrated for the court H.M.s conduct during the visit. Fathers counsel elicited that H.M.s and Fathers respective heights meant that if [H.M.] were approaching [Father] towards the front of his body, she would be approaching approximately his groin area . . . . The social worker explained that H.M.s behavior seemed sexualized because she was going straight to him in that area. It appeared that the blowing was some kind of game, and the way Father stopped H.M.s advance by putting his two hands in front of his groin area concerned the social worker. The social worker had not spoken to Fathers sister or cousin about Mothers allegations, nor had she discussed them with Father after his denials when they met at the detention hearing.^[6]

Fathers cousin, E.C., testified about a visit with Mother, H.M., and A.W. after Mother called E.C. and told her the girls had said Father had molested them in September 2005. Mother had previously confided in E.C. that she and Father were having serious marital problems, and that Mother was unhappy about Fathers guardianship of A.W. E.C. said both girls initially denied Fathers inappropriate conduct, but after Mother told them to tell the truth, both girls confirmed that Father touched their privates. E.C. said Mother nodded her head as she told the girls to tell the truth. E.C. was initially upset, but Mother called her a few hours later to ask whether she thought Mother had overreacted. E.C. said yes. When she thought of Mothers claim of abuse, E.C.s gut feeling told [her] that it wasnt true. When Mother asked E.C. if she thought Mother had led the girls to their answers E.C. said yes, and Mother told E.C. that she took back the allegations. It was E.C.s impression that Mother did not act like a mother whose child had just been molested.

E.C. was at the family home when the police arrived and interviewed Mother and H.M. on October 12, 2005. H.M. seemed comfortable when she answered Officer Parkers questions. E.C. also said she overheard Father tell Mother they should take the girls to the hospital for an examination. E.C. testified she had tried to speak with the social worker about the case, but was told she should not get involved.

Dr. James Carpenter was called by the Bureau as an expert in child abuse and neglect.^[7] He examined H.M. on November 1, 2005, for possible sexual molestation and the results of his examination were summarized in the Bureaus jurisdictional report.

Dr. Carpenter interviewed H.M. in his office. The interview was not recorded electronically, but it was his practice to write down verbatim what the children say.^[8] Although Mother provided information to Dr. Carpenter about H.M.s medical history, she was actually present for very little of the interview. Mother told Dr. Carpenter that H.M. had described butt pain first and attributed it to [Father], and that she saw H.M. touching herself when she was taking a bath with her cousin in late September. Dr. Carpenter knew H.M.s parents were separated, and had not met Father.

Dr. Carpenter was cross-examined by Fathers counsel at the hearing. Dr. Carpenter reported that H.M. was very articulate for her age, and knew the difference between true and not true.  When he interviewed H.M., Dr. Carpenter encouraged her to tell him only things that had happened. When Dr. Carpenter asked her if she had been touched in a way she did not like, H.M. said she didnt like [her] daddy to touch [her] private. H.M. said Father touched her with his hand underneath her clothes, and  [i]t felt like my booboo coming out. 

In her discussion with Dr. Carpenter, H.M. called the groin area the boo-boo and the buttock area the bootie. She also said the front private part is also called the private part.  When he reviewed body parts with H.M., Dr. Carpenter used anatomic dolls.^[9] H.M. said Father used to put his hand in the area of her buttocks, and made [her] butt hurt when [she] was sitting on [her] bed.^[10] When she was asked if any of Fathers touches made blood come out of her, H.M. said sometimes the bleed come out of my butt.

Dr. Carpenters report says that H.M. placed the male doll between the legs of the girl doll, who was on her back in the missionary position, and repeated that Father used to put his hand in my private. When asked how many times Father touched her, H.M. replied that he  did it five times and then added and four times too. While she was saying this, she was moving her hand in-and-out with the finger pointing toward her groin.^[11] H.M. told Dr. Carpenter that Fathers private touched [her] on the back, and the touch was inside of [her] back part. H.M. also said that Fathers private touched her private. Dr. Carpenter asked H.M. if Father told her any secrets and she said that he did. When he asked her what Father said, she replied he said Im going to touch your private. 

Dr. Carpenter determined H.M. to be a child who describes both digital and penile contact with her anterior groin and her posterior buttock area, with some discomfort described, but not clear evidence of bleed trauma. Her examination [was] non-diagnostic but [was] certainly consistent with touching in this area, but [was] probably less consistent with penetration beyond the hymen. It has been Dr. Carpenters experience that children do not lie, exaggerate or fantasize about such details of sexual contact. Dr. Carpenter concluded H.M. was at high risk for victimization. Dr. Carpenter also noted that [i]f indeed the report of the [Fathers] touches is considered valid, the fact that he has a past history of sexual victimization increases the likelihood that these acts have occurred.^[12]

Dr. Carpenter testified that when he physically examined H.M., he found no evidence of traumatic injury to her hymenal area. Dr. Carpenter testified that the majority of children who are victimized . . . do not have any persistent sign of trauma, but that does not preclude the possibility of penetration.

On redirect examination, Dr. Carpenter reinforced his conclusion. He testified that quite a bit of research through the years [shows] that children who give detailed commentary about inappropriate sexual touching when its nebulous that does not count, but when its very clear, as in [H.M.]s case, it tends to be something that they have experienced, certainly is more likely. H.M. was at a high risk of victimization as reflected by the specificity of her descriptions, [t]he fact that she acted things out, that she was fairly consistent in describing contacts and, you know, more than one part of her body. Dr. Carpenter concluded it was more likely than not that H.M. was sexually abused. On recross-examination, Dr. Carpenter acknowledged that the majority of the cases that get referred my way have jumped over multiple hurdles to get to a kind of high level of consideration. He found likely sexual abuse in [o]ver ninety percent.

Forensic psychologist Dr. Randy Rand testified as an expert in child sexual abuse, investigation of child sexual abuse, and suggestibility of children. Dr. Rand never met H.M. It was Dr. Rands opinion that H.M.s reports of molestation were more likely the result of improper investigative techniques and suggestive questioning by her interviewers, than due to abuse by Father.

Father denied that he sexually abused H.M. He believed that Mother fabricated the allegations that he sexually abused H.M. and coached H.M. to repeat them, so she could get sole custody of H.M. in any divorce proceedings. He also denied that H.M. had ever seen him naked. Father testified he first spoke to Mother about divorce in December 2000, approximately six months after they were married, and they separated for two months the following year. H.M. was born in April 2002. Father and Mother participated in marriage counseling in 2004 and 2005.

In April 2005, A.W. came to live with the family. She is Fathers niece and Mother did not want the responsibility of caring for another child. Mother told Father she wanted to leave the marriage and was angry about A.W. living with them. Father said Mother filed for divorce a couple weeks after the allegations were made, but claimed their phone records showed she had already contacted a divorce attorney the previous year.

In late September 2005, Father first learned of Mothers sexual abuse allegations against him from his cousin E.C. She told Father that Mother was deliberately trying to set [him] up . . . and . . . trying to make the girls say that [Father] did things to them that . . . she felt did not occur. Shortly after he learned about Mothers claims, Father confronted Mother about the allegations. Mother admitted that she told E.C. that Father inappropriately touched H.M. But Mother apologized to Father the next morning, and said she wanted to stay together and keep A.W. in their household. Father immediately placed A.W. in the care of his sister, because of what [Mother] was trying to do . . . . He testified he told Mother that as soon as [he] found a place to stay . . . [he] was moving out.

Father, Mother, and H.M. were scheduled to take a family trip to Washington, D.C. in mid-October 2005. Before the scheduled trip Mother had changed the itinerary for herself and H.M., and had put a block on the information. On October 12, Father confronted Mother about her changed travel arrangements. E.C. and C.H. were there, and Father told Mother she could not take H.M. out of state. Mother called the police and Father told her she should also call child protective services and take H.M. to the hospital for an examination. This is when Officers Dake and Parker responded and suggested that H.M. stay with another family member. She went home with E.C.

Father testified that he had a good January 2006 supervised visit with H.M. At the end of the visit Father picked H.M. up to hug her. When he put her down she blew at him while he crouched down and was holding her hands. She had not done anything like this before. Father denied that H.M. moved toward his groin, but said she just stood there where she was and blew at me. During cross-examination, Father said he put his hands up to hold [H.M.s] hands, not to stop her from blowing at him. Father knew there could not be anything sexual about what she was doing, and thought Mother must have coached H.M. [b]ecause shes never done anything like that before, never. When he was asked why he would be concerned about H.M.s blowing at him if it was not sexual conduct, Father replied: Thats my daughter. I know her. I know how she acts. I know what she does. That . . . was totally out of character . . . .

Mother testified that she was initially unsure whether H.M.s sexual abuse allegations were truthful, until H.M. told her that daddy licked her nipples and she told him, Stop.  Mothers first concern over possible abuse was in late September, when H.M. and A.W. were dressing after a bath, and H.M. inserted her finger in her vagina and moved her finger around.^[13] When Mother asked H.M. to stop, A.W. started to laugh. Mother told A.W. that [n]o one should touch [her] private. Mother was concerned about the look on A.W.s face, and asked her if anyone had touched her. A.W. said yes. When Mother asked, Who?, A.W. said, [Father]. Mother then asked H.M.: Has anyone touched you? H.M. replied, Well, daddy. When Mother asked H.M. what she meant, she said He touched me. I touch him.

Mother testified that she was advised to document her concerns about Fathers conduct when she called a toll-free hotline she found on the internet. Mother also called her close friend who is a social worker in Ohio to get more information on the behavior of abused children. Mother said she contacted these sources before she called the Bureau because she did not want to believe that Father had molested their daughter. Mother testified she did not talk to H.M. about the allegations during the weekend before the Bureau interviewed her, and never prompted H.M. to say Father touched her, or to point to her privates with her index finger.

Mother described an incident at home in early October when H.M. pulled her dress down and was touching her breasts. When Mother told her to stop, H.M. said,  Daddy does. He islike this. And she tried to push her breasts up toward her mouth. And she said, He goes like this, and she started licking down. And . . . she said, But I told him stop. I said, Ow.  And [Mother] asked, What did he say [H.M.] said, Nothing. There was also a time when H.M. started rocking back and forth when she was sitting on Mothers lap, and she told Mother that Father did that to her lap. That same day Mother took H.M. into the bathroom and saw H.M. pulling on her belly button. When Mother told H.M. not to do that, H.M. said, Daddy pushes where the pee-pee comes out.

Mother reported to the Bureau on October 13 that she found H.M. sleeping with her fingers in her vagina, and mentioned several different situations that made her suspect Father had abused H.M.

When Mother was interviewed by the Bureau on October 17, Mother told the investigator that while they were in Washington D.C., H.M. had noticed pubic hair between Mothers legs, and told her that Daddy has hair like that. A few days later, H.M. spontaneously told Mother that Father put a tree in her mouth. When Mother asked what she meant, H.M. had her finger near her groin, and she said, []His dicky icky thing.[]^[14]

H.M. was also interviewed by the Bureau at the Childrens Interview Center (CIC) on October 17. The videotape of the interview was admitted into evidence and was viewed by the court. The following summary of the interview is taken from the police report prepared by Detective Ducharme, who observed the interview.^[15] Initial questioning demonstrated that H.M. knew the difference between the truth and a lie. H.M. did not know why she was brought to the interview center that day. When the interviewer asked H.M. if she had told Mother something about Father, H.M. said,  Oh you mean my dad . . . my dad touched my privates.  H.M. simultaneously patted her vagina as she said this and stated, He put his privates down my privates and I said thats a no, no.  [H.M.] stated [Father] replied, Im sorry . . . . [H.M.] then started playing around and said this had occurred on the airplane.

When H.M. was asked what else Father had done, H.M. said,  He put his hand down my privates sometimes.  When she was asked how Father did this, H.M. replied,  Because he do that sometimes to my privates and he pull my (diaper?) down here and then stick me. ^[16] When she was asked where this happened, H.M. said she was at her house and in her room.^[17] Detective Ducharme observed that H.M. became distracted every few minutes and had to be re-directed by [the interviewer].

The interviewer showed H.M. a diagram of a little girl, and had H.M. identify body parts on the diagram by name. H.M. called the girls vagina her privates, and her posterior her body.^[18] After a short break, H.M. continued to identify body parts on diagrams. The interviewer asked H.M.,  So you were telling me that your dad touched your private?  She replied,  Right here and pointed to the vagina of the little girl in the drawing. [H.M.] then stated, He touched my private right here and again pointed to the vagina of the little cartoon girl. [H.M.] stated this happened in her bedroom. When H.M. was asked who changes her diaper, H.M. said it was Mother, and added,  Boys dont change diapers. 

H.M. was asked to demonstrate using two teddy bears to show what happened when Father touched her privates. H.M. then lay one bear on the table on its back and touched the bear between its legs with her fingers saying, He touched my privates like this. [H.M.] stated, He touched my boo-boo too. [H.M.] then became distracted and began to act silly. The interviewer showed H.M. a diagram of a boy, and asked her to name the body parts. [H.M.] immediately pointed to the penis on the boy and said, Pee-pee.  When she was asked who had a pee-pee, H.M. gave the name of a little boy at her school.^[19] When H.M. was asked if she had ever seen a pee-pee on a grown-up, H.M. said Nope. When the interviewer pointed to the penis and asked if Father had one, H.M. responded, Nope.

The interviewer asked,  So you were telling me something before about your dad[]s private and your privates? Tell me again about your dad[]s privates[.] [] [H.M.] began to draw a picture [on paper the interviewer had given her] and said, This is the funky funky. This is the funky.  When H.M. was asked what the funky was, H.M. said,  This is what the boy has. And the boy has two things on it and hair and legs. [H.M.] continued to draw this picture describing it as she drew. When H.M. was asked if she had ever seen a funky, H.M. said,  Yea[h] he used to do that all day. When asked who used to Do that, [H.M.] stated, My daddy. [H.M.] then avoided any further questions regarding the drawing for a few minutes.

When the interviewer again turned H.M.s attention to the drawing, H.M. said,  He used to do something to my privates. . . . He used to bite my privates. [H.M.] demonstrated by leaning down toward her own vagina and [made] a biting motion with her mouth. When asked what the funky used to do, H.M. got out of her chair and said,  The funky used to shake and she danced around as if shaking. The interviewer asked whose funky used to shake, but H.M. did not answer. When she was asked who had a funky, H.M. said she did not know.

H.M. said she had a secret about her picture, but that neither Mother nor Father had asked her to keep a secret. When H.M. was asked to use the bears to show how Father had touched her private with his private, H.M. picked up both bears and laid one on the table on its back. She again touched that bear between it[]s legs and stated, He put his private about this. [H.M.] then . . . placed the two bears standing up and face to face and touched the two bears privates together and said, They do like this. [] [H.M.] then turned the bear around that represented her and placed the other bear[]s hand on the buttocks saying, He put his hand on my boo-boo. [H.M.] then used one bear[]s hand to play with the tail of the other bear and said, This is MY funky.[^[20]] And he do that to my privates.  When asked to demonstrate how Father had bitten her privates, H.M. took the daddy bear and put its mouth on the privates of the [H.M.] bear and said, See, thats how he do it. Thats how he do that to my privates. He bite my privates with his mouth. 

When she was asked if Father had done anything else, H.M. took both the bears and had their mouths touching saying, They do like that. ^[21] H.M. stated the one bear was her dad and the other was her. When the interviewer pointed to the picture H.M. had drawn and asked whose funky it was, H.M. said, Thats my daddys funky. When she was asked if anything came out of her daddys funky, H.M. stated that his pee-pee came out of his funky. H.M. said it was blue.

Detective Ducharmes notes reflect that [i]t seemed that whenever [the interviewer] asked [H.M.] about something serious she would focus long enough to make a quick statement but if pushed a little further she either refused to answer or started playing and making silly comments. Towards the end of the 50 minute interview it became clear that [H.M.] was losing concentration to the point that it did not make sense to continue. H.M.s drawing made during her interview was admitted into evidence, as were the diagrams of the boy and girl that were used to have H.M. identify parts of the body.^[22]

At the conclusion of the evidentiary portion of the jurisdictional hearing, the court emphasized the importance of its ruling, but found it was not a close call. The court concluded: Overall, I find [H.M.]s statements and gestures and drawings in all the various forms to be competent, reliable, and credible as is possible for a child of her age. [] What was very compelling for meand there is no way it could have been coached by anyoneis the actions [H.M.] took during the supervised visit with her father, which I believe were spontaneous sexualized behavior that again could not have been coached. . . . [] Overall, I found [Mother] to be credible, and I believe that she was slow to accept the allegations. I found [Father] and his family and witnesses to be credible regarding the family difficulties that were going on. But none of that evidence was persuasive that there wasthat it somehow colored [H.M.] s testimony or made that fabricated or coached in any way. [] There is no credible evidence that that testimony and her statements and drawings and all the rest was fabricated in any way. The court also found Dr. Carpenter to be a very credible, persuasive expert, and . . . Dr. Rand to be a singularly incredible and unpersuasive expert. The court sustained the allegations of the petition, and the matter proceeded to a dispositional hearing.

The Bureaus report prepared for the dispositional hearing recommended that the court dismiss the petition, vacate the dependency and give sole physical and legal custody to Mother. The Bureau reported that Mother was providing a safe home for H.M., and each of them was involved in therapy. H.M. told her therapist that she was afraid when Father touched her privates, and had begun to talk about Fathers touching in front of other people. The therapist left a message for the social worker that stated: I am concerned that [Father] has never admitted any guilt. Based on [H.M.]s disclosure, it is concerning that he has not said that he has done anything wrong. Visitation without him admitting any guilt or receiving any treatment does not sound like the right message to [H.M.] Also if there is a decision to grant visitation it would definitely mean a pretty large amount of stress for [Mother] which I think would impact the way she is providing for [H.M.]

The dispositional report discussed the January 2006 visit between Father and H.M., including H.M.s blowing behavior that the court had found compelling evidence of spontaneous sexualized behavior that . . . could not have been coached. The report noted that H.M. had expressed interest in visiting with Father again, but Father had not complied with the Bureaus requirement that he first become engaged in therapy for sex offenders.

The Bureau recommended that until [Father] has successfully completed a sexual abuse offenders[] program, [Mother] should have both physical and legal custody of their child. In the future, the parents can bring up the issue of joint legal custody for [H.M.] in Family Law Court, once [Father] has successfully completed the therapeutic process and [H.M.] has begun the healing process.

Father sought to continue the dispositional hearing on the basis that he wanted to call H.M.s treating therapist as a witness. The therapist had only seen H.M. a few times, and while he thought her reports of abuse were credible he remained open to changing his opinion of her credibility. The court denied Fathers request to continue the proceedings. The hearing proceeded and Father called psychologist Dr. Larry Wornian as an expert witness. Dr. Wornian testified that he interviewed and administered tests to Father in order to formulate an opinion on whether Father was inclined to be sexually inappropriate with a child. It was Dr. Wornians opinion that Father has the psychological profile of a normal male heterosexual.

The social worker also testified at the dispositional hearing. She said that she also learned H.M. claimed that an aunt had molested her, and the social worker referred that allegation to the Richmond Police Department. She was questioned about why she may not have turned that report of molestation over to Fathers lawyer before the jurisdictional hearing, and she testified about the requirements Father would have to fulfill to have visits with H.M. Father was required to attend sexual abuse counseling and apologize to H.M. before he could visit with her. H.M. had also been in therapy and was reported to spontaneously remark that she was a victim of her Fathers abuse.

Father testified that he had been advised by counsel that sex offender therapy was unnecessary. But he found a therapist in spite of this advice. He said that H.M.s pediatrician was never advised by Mother that H.M. was abused, and the pediatrician would likely have been told of any adverse condition H.M. had. Father also said he expressed his concern to the social worker that H.M. had been repeatedly injured while she was in Mothers custody. Finally, Father testified that reunification services would be important in this case because of his bond with H.M., and her desire to have contact with Father.

The court found there was clear and convincing evidence that H.M. was a dependent under section 300 as a result of severe sexual abuse by Father, and that she would not benefit from further reunification services to Father. The court dismissed the dependency petition and placed sole legal and physical custody of H.M. with Mother. The court ordered visitation for Father only if and after he completes sexual offender treatment and apologizes to [H.M.] If father completes sexual offender treatment, initial visits should occur in a therapeutic setting. Input from the childs therapist and the childs wishes should be considered prior to any visits taking place. Father timely appealed.

DISCUSSION

A. The Jurisdictional Order

A minor may be declared to be a dependent of the juvenile court if the child has been sexually abused, or there is a substantial risk that the child will be sexually abused . . . by his or her parent or guardian . . . . ( 300, subd. (d).) Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300. ( 355, subd. (a).) We review the courts jurisdictional findings for substantial evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319; In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.)

Our consideration of the issue whether the judgment was supported by substantial evidence is governed by the well-established standard of review applicable to any claim that a judgment or finding is not supported by the evidence in the record. Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial courts findings and decision, resolving every conflict in favor of the judgment. [Citations.] [] We emphasize that the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)

1. H.M.s Hearsay Statements

Father argues H.M.s hearsay statements could not be considered by the juvenile court when it made its jurisdictional findings. This, he says, is because [a]ll of the statements attributed to [H.M.] in the [social study] report are multiple hearsay . . . in many cases . . . third or fourth hand hearsay. Father argues that section 355 does not make multiple hearsay admissible in contravention of Evidence Code section 1201.^[23]

Under section 355, subdivision (b) [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, in relevant part: If any 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 the petitioner establishes one or more of the following exceptions: [] . . . [] (B) The hearsay declarant is a minor under the age of 12 years who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under the age of 12 years shall not be admissible if the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence.  [] . . . [] (D) The hearsay declarant is available for cross-examination. Section 355, subdivision (d) provides: This section shall not be construed to limit the right of any party to the jurisdictional hearing to subpoena a witness whose statement is contained in the social study or to introduce admissible evidence relevant to the weight of the hearsay evidence or the credibility of the hearsay declarant.

Here, H.M.s hearsay statements, if reliable, would be admissible under section 355, subdivision (c). H.M. is a child under 12 years old, and was determined by the juvenile court to be legally competent to testify. She demonstrated that she could comprehend questions, recall events and that she knew the difference between telling the truth and telling a lie.^[24] Moreover, H.M. and the witnesses who relied upon her out-of-court statements in the jurisdictional report testified in the jurisdictional hearing and presented themselves for cross-examination.^[25] The juvenile court did not rely solely on multiple hearsay statements in the jurisdictional report for its jurisdictional finding.^[26] Only when a child victim lacks competence to distinguish between truth and falsehood is the juvenile court foreclosed from basing its jurisdictional findings solely on the childs out-of-court statements. In such circumstances the court may not rely on the childs statements alone, unless the court finds that the time, content and circumstances of the statement provide sufficient indicia of reliability.  (In re Lucero L. (2000) 22 Cal.4th 1227, 1247-1248 (plur. opn.).) Unlike the child whose testimony was disallowed in In re Lucero L., H.M. was found to be legally competent. (Id. at p. 1234.) [C]orroboration is not necessary in this context. (Id. at p. 1249.) Thus, Father could only exclude her statements if they were unreliable because [they were] the product of fraud, deceit, or undue influence. ( 355, subd. (c)(1)(B).)

Father challenges the juvenile courts finding that H.M.s statements were reliable by saying the finding is not supported by substantial evidence. We disagree. Although H.M.s statements were not identical in every detail, she consistently informed her interviewers that Father touched her inappropriately, and she did so using age appropriate language and hand gestures to indicate where Father touched her. Given this consistency over a considerable period of time reported by multiple sources, we cannot conclude the trial court abused its discretion in finding the statements reliable. (In re Lucero L., supra, 22 Cal.4th at p. 1250; see also id. at p. 1236 [countys expert psychologist testified that research shows victims respond by demonstrative touching in response to questions, while children who make false allegations merely nod and rarely elaborate].)

Father presented expert testimony on the issue of H.M.s reliability, and cross-examined the witnesses who testified about H.M.s statements. But there is nothing in the record that requires us to conclude he demonstrated that H.M.s statements were the product of fraud, deceit or undue influence. (See  355, subd. (c)(1)(B); see In re Lucero L., supra, 22 Cal.4th at p. 1253 (conc. opn. of Chin, J.) [hearsay statements of three year old were admissible when parents did not succeed in establishing they were unreliable].)

Father argues the juvenile court abused its discretion by ignoring H.M.s uncontradicted testimony that she only knew that [Father] had touched her privates because her mother told her that he had and told her to say so. H.M.s testimony in chambers did not conclusively demonstrate that Mother coached her to accuse Father of molestation. The record is more ambiguous than Father suggests. The questions asked of H.M. in this regard were compound, and somewhat abstract.^[27] Even assuming H.M. testified accurately that Mother told her to say Father touched her privates, Mothers comments could reasonably be interpreted as encouragement to H.M. to disclose what Father did, rather than for her to fabricate a claim. H.M.s answers must also be considered in the context of her testimony as a whole, which confirmed repeatedly that Father had molested her. The juvenile court did not abuse its discretion when it determined that H.M.s claims of molestation were reliable.^[28]

The juvenile court was not required to disregard H.M.s statements, and there was substantial evidence to support the courts jurisdictional findings under section 300, subdivision (d). (In re Lucero L., supra, 22 Cal.4th at p. 1250 (plur. opn.); see also id. at p. 1254 (conc. opn. of Chin, J.) [If a parent abuses a particularly young child in private and leaves no physical marks, two common scenarios, the child cannot be protected if the trial court does not consider and act on his or her hearsay statements.].)

Father challenges the jurisdictional report by arguing the social worker failed to conduct a proper investigation, relied on statements from Mother and reports prepared by others, and failed to interview Father or Fathers family members. But the court heard testimony from the witnesses and viewed the CIC videotape. (See In re Casey D. (1999) 70 Cal.App.4th 38, 52 [[w]e have no power to judge the effect or value of the evidence, to weigh the evidence [or] to consider the credibility of witnesses].) Under these circumstances, Father has failed to show the alleged errors in the social study were prejudicial.

There was substantial evidence to support the juvenile courts true findings on the jurisdictional allegations, including H.M.s testimony in chambers, the videotape of the CIC interview, the social workers testimony about H.M.s behavior during her visit with Father, and the testimony of law enforcement personnel and health professionals to whom H.M. consistently reported molestation by Father, including Dr. Carpenter, who interviewed H.M. and was found by the court to be a very credible, persuasive expert.

Fathers additional challenge that the court abused its discretion when it rejected the opinion of his forensic psychologist, Dr. Rand, is also unpersuasive. Dr. Rand testified that H.M.s statements were fabricated and the conclusion she was molested was the result of faulty investigation methodology by her interviewers. The trier of fact may reject the testimony of a witness, even though uncontradicted, so long as it does not act arbitrarily. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 632.) Dr. Rand viewed a part of the CIC interview and a number of the reports prepared during investigation of the case, but he did not interview H.M. He testified about potential general threats to the reliability of evidence in cases involving allegations of child sexual abuse, but made only limited connections to the investigation in this case. For example, when he was asked by the court to focus on what is in [Officer Parkers] report that you think shows that the officer was biased and . . . was being highly suggestive, Dr. Rand said that we know from the research that introducing teddy bears . . . could be highly suggestive, and that summaries of interviews are highly unreliable, but then concluded we dont know how this interviewwhat this interview really looks like because theres no electronic recording. Dr. Rand also criticized the CIC interviewer for failing to explore alternative explanations for H.M.s accusations, but when asked whether he noticed the interviewer asked H.M. about who changed her diaper, he contended that question, along with all the other questions, [was] driven by this pursuit to collect information about molestation.

Father himself acknowledges that Dr. Rand may have been an unfocused and sometimes inarticulate witness . . . . The record demonstrates that the court listened carefully to Dr. Rands testimony, and was anxious to hear why he believe[d] these allegations were initially fabricated. Ultimately the court was unconvinced by Dr. Rands analysis, and found him to be a singularly incredible and unpersuasive expert.^[29] Father has not shown the court abused its discretion in evaluating the credibility of Dr. Rands testimony or in determining the weight it should be given within the context of all the evidence produced at the contested jurisdictional hearing.

2. Exculpatory Evidence

During the dispositional hearing, Fathers counsel learned that shortly before the court made its jurisdictional findings, H.M. told the social worker that her paternal aunt, C.H., grabbed [H.M.s] booty and her groin while H.M. was taking a bath. H.M. made this statement sometime after Mother became displeased at C.H. for taking a snack to H.M. at her school. Father contends this was potentially exculpatory information that he should have received much earlier because it supported his claim that Mother influenced H.M. to make false sexual abuse allegations against people with whom Mother was angry.

County counsel attempted to provide this information to Fathers counsel at the time it was received, but seems to have mistakenly sent the information to the wrong fax number. Fathers counsel questioned the social worker about the allegation against C.H. during the dispositional hearing, and argued that it constituted grounds to overturn the jurisdictional ruling. But the evidence did not change the juvenile courts decision, and the court observed that counsel could have made a motion to continue or motion to reopen or any number of other motions, but chose not to.^[30]

Father argues that the rule of Brady v. Maryland (1963) 373 U.S. 83 should apply in a dependency case, and that the countys failure to disclose exculpatory evidence here was prejudicial to Fathers case. But [t]his is not a criminal prosecution, with all its attendant due process and confrontational rights, but a child dependency proceeding, the purpose of which is  not to prosecute a parent, but to protect the child.   (In re Lucero L., supra, 22 Cal.4th at p. 1254 (conc. opn. of Chin, J.), citing In re Malinda S. (1990) 51 Cal.3d 368, 384; see also In re April C. (2005) 131 Cal.App.4th 599, 611 [parents involved in dependency proceedings and criminal defendants are not similarly situated because the two types of proceedings have different purposes].) We will not apply Brady in this case. Moreover, we conclude Father has not shown a reasonable probability the information would have produced a different result if received earlier. The juvenile courts remarks at the conclusion of the dispositional hearing show that it considered this additional evidence and it did not change the courts finding that H.M. had been sexually abused by Father.^[31]

B. The Dispositional Order and Dismissal of Dependency

1. Denial of Reunification Services Under Section 361.5, Subdivision (b)(6)

The juvenile court may deny reunification services when clear and convincing evidence shows that a parent has inflicted severe sexual abuse upon a child and the court finds the child would not benefit from reunification services. ( 361.5, subd. (b)(6).)^[32] Father argues there is no evidence he is guilty of severe sexual abuse as defined in the statute because there is only equivocal evidence . . . that touching occurred. Fathers argument would have us ignore allegations found true by the juvenile court that Father pressed his penis against the childs vagina, inserted his finger [i]n the childs vagina and rectum, fondled the childs vaginal area, and licked the childs vagina and nipples with his tongue. Even though those findings were made under the preponderance of the evidence standard, and section 361.5, subdivision (b) requires clear and convincing evidence, the judge stated that her jurisdictional determination was not a close call.

The dispositional hearing report added to the information the court had about Fathers conduct. H.M. was reportedly frightened at night and said Father used to come at night and touch her. H.M. also told her therapist she was afraid when Father touched her privates, and during therapy H.M. had hump[ed a stuffed animal] from behind. The social worker testified that during recent visits, H.M. described the ways Father touched or licked her privates and otherwise abused her. In making its dispositional findings, the court noted that [t]he evidence keeps mounting that [H.M.] is now revealing more about what has happened to her in the past and the evidence is that she is not interested in visiting with her father at this point in time. The dispositional finding that there was clear and convincing evidence H.M. was the victim of Fathers severe sexual abuse as defined by section 361.5, subdivision (b)(6) is supported by substantial evidence. (See In re Jasmine C. (1999) 70 Cal.App.4th 71, 75 [even where the standard of proof in the trial court is clear and convincing evidence, the appellate court is limited to a determination of whether substantial evidence supports the conclusions of the trier of fact].)

Father also argues there is no evidence that supports the courts finding that H.M. would not benefit from reunification services with Father. Even though H.M.s January 2006 visit with Father was generally a happy one, H.M.s behavior at the conclusion of that visit was of concern to the court, and the lack of further visits during the dependency proceedings was due to Fathers failure to follow up on referrals for sexual offender therapy. At the dispositional hearing, Father continued to deny molesting H.M., and even though he said for some time that he was willing to seek sex offender therapy, he had only recently begun doing so with a therapist approved by the Bureau. The social worker testified that H.M. was adamant that she did not want to visit with Father because he had molested her, and H.M.s counsel also reported that H.M. was angry at Father for abusing her and did not want to visit him. The courts finding that H.M. would not benefit from reunification services with Father is supported by substantial evidence.

Father argues for the first time in his reply brief that the court failed to state on the record the basis for a finding of severe sexual abuse under section 361.5, subdivision (b)(6), and did not specify the factual findings used to determine that the provision of services to him would not benefit H.M. Both are requirements of section 361.5, subdivision (i). But arguments raised for the first time in a reply brief will generally be considered waived. (Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1372, fn. 11.) Nor does Father claim to have raised these concerns to the juvenile court, and on that ground too these arguments were waived. (See In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642.) Moreover, findings may generally be implied when they are supported by substantial evidence (see In re S.G. (2003) 112 Cal.App.4th 1254, 1256 [court did not commit reversible error when it failed to make on-the-record findings to deny reunification services under  361.5, subd. (b)(6)]), and a failure to make explicit findings may be harmless error when it is not reasonably probable the court would have made a different decision absent the error. (See In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) Father has not shown a reasonable probability that this case would turn out differently had the court made the findings he contends were required by section 361.5, subdivision (i).

Because the courts denial of reunification services under section 361.5, subdivision (b)(6) was supported by substantial evidence, we do not address the Bureaus argument that any error in the requisite findings was harmless.

2. Visitation

When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court, it may enter an order determining the custody of, or visitation with, the child. ( 362.4; see also Cal. Rules of Court, rule 5.700(a).) The courts custody and visitation orders are then transferred to family court, where they may be enforced or modified. ( 362.4; see In re Chantal S. (1996