In re Victoria M. CA4/1

Filed 9/8/15 In re Victoria M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re VICTORIA M., a Person Coming
Under the Juvenile Court Law.
D067989
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1200)
Plaintiff and Respondent,

v.

ERNESTO M.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Jennifer Stone, Deputy County Counsel, for Plaintiff and Respondent.
 Ernesto M. (Ernesto) appeals a juvenile court's order assuming dependency

jurisdiction of his daughter, Victoria M. (Victoria), under Welfare and Institutions Code1

section 300, subdivisions (a) and (d). At the contested jurisdictional and dispositional

hearing, the court permitted Victoria to testify in chambers outside the presence of her

parents. (§ 350, subd. (b).) Ernesto contends there was no admissible evidence to

support Victoria's section 350, subdivision (b) motion to exclude her parents from her

testimony. He also contends the evidence was insufficient to support the court's true

findings that Victoria suffered serious physical harm inflicted nonaccidentally and sexual

abuse by Ernesto. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

For the past several years, 15-year-old Victoria had been living with her father and

primary caretaker, 38-year-old Ernesto. Her parents divorced when she was not yet two

based on allegations by Victoria's mother of physical abuse by Ernesto. He had formerly

been in the military, and expected his daughter to stay focused on school and abide by a

regimented daily schedule. When Victoria needed to be disciplined or punished, Ernesto

had at times required her to do push-ups or jumping jacks, or get on her knees and

balance small cans on extended arms.

In mid-November 2014, Victoria arrived at school with a black eye, which she

initially told teachers was an accident but eventually revealed had been caused by her

father punching her. One week later, she arrived at school with significant neck pain and

1 All further statutory references are to the Welfare and Institutions Code.
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difficulty walking upright. She was transported by ambulance to an emergency room,

where a medical exam concluded she had (1) a cervical sprain (neck injury); (2) bruises

on both ear lobes consistent with her ears being grabbed and pulled; (3) bruising and pain

on her left hip bone consistent with being kneed; and (4) painful, tender areas on her neck

and back consistent with being choked, slammed, thrown, or flung around. The

examining doctor concluded Victoria's injuries were consistent with her reported physical

abuse.

Victoria and Ernesto gave different accounts of two physical altercations. The

first altercation occurred after she lied to him about staying after school for tutoring when

she was actually hanging out with friends. According to Victoria, that evening, Ernesto

pushed her off a chair causing her head to hit the closet, he kicked her, punched her, and

called her a "spoiled bitch" and a "lying bitch." In contrast, Ernesto characterized

Victoria as the aggressor while he had merely tried to defend himself and/or restrain her.

He admitted using harsh language ("Stop acting like a bitch" and "Your cunt of a

friend"), slapping Victoria's face, and buying her makeup to conceal the black eye that

developed. Other house inhabitants confirmed that tensions had been escalating between

the two and Victoria's black eye occurred after a "commotion" with Ernesto.

During the second altercation, the two were by themselves in the house. Victoria

had been distant, unhappy, and wanted to be left alone in her room. After being ignored

and feeling slighted, Ernesto knocked Victoria off her chair where she had been trying to

do homework, then grabbed her ears and "tried to pull [her] head apart like he was

ripping [her] head open." He banged her head on the floor, pinned her down, kneed her

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hip, choked her, tried to cover her nose and mouth, and slammed her on the floor.

Victoria tried to physically fight back, but Ernesto's violence and anger only got worse.

She woke up the next day in significant pain, but resolved to go to school for help.

Ernesto told her to make up a believable story about her injuries, e.g., she had been hit by

falling boxes.

According to Ernesto, Victoria sustained injuries from plastic boxes that

accidentally fell on her after he had asked her for some help in the garage. She left the

garage, and he did not immediately check on her. Ernesto acknowledged that at some

point in the evening, he went into Victoria's room, they verbally argued, and then

physically fought. In his account of events, Victoria was aggressive and flailing

("attempted to bite" and "stomped on [my] feet"), and his maneuvers were purely

defensive like the first altercation to quiet and calm her down. He had no explanation for

how Victoria sustained bruises to both her ears, and he denied pulling her ears, choking,

or kneeing her. He did not sustain any injuries.

In response to direct questions during interviews, Victoria also told social workers

and doctors that in the past two years, Ernesto had routinely fondled her breasts ("he puts

his hand under my shirt and grabs my boob and falls asleep"), slapped her butt, and

touched her crotch area, sometimes acting like it was an accident or a joke, and

occasionally accompanied by comments that he was the only one who could touch her

like that. The fondling started when she had moved to live with him, and they were

sleeping in the same bed. Ernesto denied all inappropriate touching, but said there had

been one time he felt for a lump in her breast over her clothes to alleviate Victoria's

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concerns about breast cancer. When asked by a social worker whether she was scared to

go home, Victoria said she was not worried about the "sexual stuff," but terrified of the

"physical stuff."

In late November 2014, the San Diego County Health and Human Services

Agency (the Agency) filed a dependency petition on behalf of Victoria under section 300,

subdivision (a), which was subsequently amended to include section 300, subdivision (d).

The original and amended petitions alleged that during two physical altercations and/or

through excessive discipline, Ernesto had subjected Victoria to serious physical harm

and/or there was a substantial risk she would suffer serious physical harm inflicted

nonaccidentally. The amended petition additionally alleged that Ernesto had sexually

abused Victoria by inappropriately touching and fondling her. Victoria was detained and

placed in the home of her best friend's mother.

The contested jurisdictional and dispositional hearing occurred on various dates in

late February through April 2015. As we discuss in more detail below, the court heard

testimony from Victoria (in chambers outside the presence of her parents), two social

workers, Ernesto, Victoria's mother, and her paternal grandmother. After closing

arguments, the court (Judge Birkmeyer) stated on the record its basis for allowing

Victoria to testify in chambers pursuant to section 350, subdivision (b). The court then

made true findings by clear and convincing evidence on the Agency's section 300,

subdivision (a) and (d) allegations. In reaching its decision, the court discussed its

rationale at length, including why it found certain witnesses' testimony to be believable or

credible, and conversely, implausible.

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 DISCUSSION

I

Section 350, Subdivision (b) Motion

Section 350, subdivision (b) 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, Victoria's counsel requested that she be allowed to testify in chambers at the

jurisdictional and dispositional hearing. Judge Birkmeyer had previously read the

Agency's reports, and at a motion hearing on the matter, heard arguments and received an

offer of proof by Victoria's counsel, who represented that Victoria was afraid to testify in

a room with her father present, she was scared of her father and, throughout proceedings,

had declined visits with him. The court ordered Victoria's testimony would "begin in

chambers" outside the presence of Ernesto—the propriety of which would be reevaluated

as needed. Ernesto's counsel would be present in chambers, and a transcription streaming

technology would be utilized, allowing Victoria's testimony to display in real time in the

courtroom.

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 Victoria's testimony at the jurisdictional and dispositional hearing proceeded in

this manner without further evaluation. After closing arguments, the court stated that the

nature of Victoria's testimony, her obvious fear of her father, and her emotional responses

to a number of questions, confirmed that allowing Victoria to testify in chambers had

been necessary to ensure truthful testimony pursuant to section 350, subdivision (b).

Ernesto viewed the testimony in real time and had the opportunity to consult with his

counsel prior to Victoria's cross-examination.

Ernesto contends on appeal that the court's procedural handling of the section 350,

subdivision (b) motion was flawed because "no evidence was presented" to allow the

court to satisfy the statutory requirements. We conclude the statutory requirements were

satisfied. (In re S.C. (2006) 138 Cal.App.4th 396, 426; In re Katrina L. (1988)

200 Cal.App.3d 1288, 1297 [proper for the court to rely on statements in the social

worker's report in determining whether there was a basis for in-chambers testimony

pursuant to § 350].) The Agency's detention and jurisdiction/disposition reports

supported Victoria's fear of testifying against her father in his presence because she had

been severely punished by him for acts of defiance. Furthermore, the court accepted

counsel's offer of proof, which was borne out by testimonial evidence. Under the

circumstances, the procedure devised by the court—to permit Victoria to begin testifying

in chambers so her demeanor and testimony could be assessed pending further

commentary by counsel—was not unreasonable to ensure truthful testimony and prevent

unnecessary trauma.

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 II

Sufficiency of Evidence to Support Jurisdictional Findings

A. Standard of Review

" 'When the sufficiency of the evidence to support a finding or order is challenged

on appeal, the reviewing court must determine if there is any substantial evidence, that is,

evidence which is reasonable, credible, and of solid value to support the conclusion of the

trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and

in reasonable inferences from the evidence] are to be resolved in favor of the prevailing

party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In

dependency proceedings, a trial court's determination will not be disturbed unless it

exceeds the bounds of reason. [Citation.]' " (In re Savannah M. (2005) 131 Cal.App.4th

1387, 1393 [quoting In re Ricardo L. (2003) 109 Cal.App.4th 552, 564].) An appellate

court "has no power to judge the effect or value of, or to weigh the evidence; to consider

the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions

from the evidence. We review a cold record and, unlike a trial court, have no opportunity

to observe the appearance and demeanor of the witnesses." (In re Sheila B. (1993)

19 Cal.App.4th 187, 199.)

B. Analysis

Ernesto challenges the sufficiency of the evidence to support the court's

jurisdictional findings under section 300, subdivisions (a) and (d). He first argues the

evidence was insufficient to support that Victoria suffered "serious physical harm." He

also argues the trial court erred by accepting Victoria's version of events because she is

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not credible and "simply [does] not want to live with her father." He highlights perceived

inconsistent testimony or past falsehoods by Victoria.

We conclude substantial evidence supports the juvenile court's jurisdictional

findings under section 300, subdivisions (a) and (d). Jurisdiction under section 300,

subdivision (a) is appropriate when "[t]he child has suffered, or there is a substantial risk

that the child will suffer, serious physical harm inflicted nonaccidentally upon the child

by the child's parent or guardian." In determining whether a child is at risk of serious

physical harm, the court may consider "the manner in which a less serious injury was

inflicted" and "other actions by the parent" indicative of a risk of serious physical harm.

(§ 300, subd. (a); see In re N.M. (2011) 197 Cal.App.4th 159, 169 [reasonable to infer

that instances of hitting, kicking, and slapping, constituted a pattern of physical abuse];

In re Giovanni F. (2010) 184 Cal.App.4th 594, 599-600 [history of hitting, slapping,

beating and choking gave rise to risk of serious physical harm].)

Jurisdiction under section 300, subdivision (d) is appropriate when "[t]he child has

been sexually abused." A minor's uncorroborated testimony regarding sexual molestation

may be sufficient to support a finding of sexual abuse. (In re P.A. (2006) 144

Cal.App.4th 1339, 1343-1344 [although nine-year-old daughter's accounts varied in

details on sexual touching, "each account related essentially the same two incidents that

occurred on successive nights" sufficient to sustain the petition under section 300,

subdivision (d)].)

Based on our review of the record, sufficient evidence supported the findings that

Victoria suffered serious physical harm, and was at substantial risk of serious physical

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harm, by Ernesto. The juvenile court found the notion that Victoria had manufactured

two different physical altercations to escape her father's strict household "patently

absurd." School administrators, social workers, and medical doctors observed the extent

of Victoria's debilitating physical injuries, which were also photographed. The court

recounted in detail the family's history, household dynamics, and two physical fights that

had escalated in violence. It found Ernesto's testimony about the altercations

unbelievable insofar as his characterization of Victoria as the aggressor, specifically

noting that Ernesto had not been injured, he maintained "extraordinary control" over her,

he insisted he had the "right" to slap her if needed as a parenting method, and he was

bulkier and more muscular. The court acknowledged instances of past falsehoods by

Victoria, including a false allegation of rape, but noted the event had occurred in 2012 in

a different scenario and she had immediately recanted when confronted by police. In

contrast, her report of physical abuse by Ernesto had not varied, even under intense

scrutiny.

Similarly, in support of its jurisdictional finding under section 300,

subdivision (d), the court credited Victoria's testimony regarding inappropriate sexual

touching by Ernesto as plausible and consistent. Although initially skeptical of

molestation due to Victoria's delayed disclosure, the court found her testimony believable

under the circumstances because Victoria loved her father and thought she had nowhere

else to go, she needed urgent help for her physical injuries and the sexual touching had

been a secondary concern, she had minimized rather than exaggerated allegations of

sexual abuse, and then only disclosed the molests when directly questioned. Victoria had

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consistently repeated her claims of inappropriate sexual touching to two different social

workers, a doctor in the emergency room, a forensic interviewer, and the court.

Ernesto essentially asks us to make credibility determinations and reweigh

evidence, which we may not do. (In re Lana S. (2012) 207 Cal.App.4th 94, 104.)

Substantial evidence supported the juvenile court's jurisdictional findings.

DISPOSITION

The order is affirmed.

MCDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

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