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 CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). Thi s opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

In re VICTORIA M., a Person Coming Under the Juvenile Court Law.
SAN D IEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v. ERNESTO M., Defendant and Appellant. D067989
(Super. Ct. No. CJ1200)

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

irmed.

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.2

Ern esto M. (Ernesto) appeals a juvenile court ' s order assuming dependency jurisdiction of his daughter, Victoria M. (Victoria ), under Welfare and Institutions Code 1
section 300 , subdivisions (a) and (d)

. At the contested jurisdictional and dispositional hear ing, the court perm itted 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 s he was not yet two based on allegations by Victoria ' s mother of physical abuse by Ernesto

. He had formerly been in the military , and expect ed 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 require d her to do push

- ups or jumping jacks , or get on her knees and bala nce 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 scho ol with significant neck pain and

1 All further statutory references are to the Welfare and Institutions Code.3

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 g rabbed 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 injurie s were consistent with her reported physical abuse. Victoria and Ernesto gave different accounts of two physical altercations. T he 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, t hat 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 ag gressor 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. O ther 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 ho use. Victoria had been distant, unh appy , 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 li ke he was ripping [her] h ead open. " He banged her head on the floor, pinned her down, kneed her4

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 g o t worse. She woke u p 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 t hat accidentally fell on her after he had asked her for some help in the garage

. She left the garage, and h e 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 physical ly f

ou ght . 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.
I n 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 b oob and falls asleep " ), slapped her butt , and touched her crotch area, some times acting like it was an accident or a joke , and occasionally accompanie d by comments that he was the only one who could touch her like that

. The fondling started w hen 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 fo r a lump in her breast over her clothes to alleviate Victoria ' s5

concerns about breast cancer. When asked by a social worker whether she was scared to go home, Victoria said she wa s 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).
Th e 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 seri ous physical harm inflicted

non accidentally. The amended petition additionally alleged that Ernesto had sexually abused Victoria by inappropriate ly touching and fondling her

. Victoria was detained and placed in the home of her best friend ' s mother. The contested jurisdictional a nd 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). T he court then made true findings by clear an d 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 witness es ' testimony to be believable or credible, and conversely , implausible.6 DISCUSSION
I Section 350, Subdivision ( b ) Motion S ection 350 , s ubdivision (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 m inor ' 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
testim ony or have the testimony summarized by cou nsel 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 re ports, 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 roo m with her father present, she wa s scared of her father and , throughout proceedi ngs, had declined visits with him. T he court ordered Victoria ' s testimony would " begin in
chambers " outside the presence of Ernesto

— the propriety of which w ould 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.7

Victoria ' s testimony at the jurisdictional and dispositional hearing proceeded in this manner without further evaluation

. After closing argu ments, t he 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 Victor ia to testify in chambers had
been necessary to ensure truthful testimony p ursuant 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. (198 8)
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 ].) T he Agency ' s detention and j urisdiction/disposition reports
supp orted Victoria ' s fear of testify ing against her father in his presence because she had been severely punished by him for act s of defiance

. Furthermore, the court accepted counsel ' s offer of proof, which was borne out by testimonial evidence. Under the ci rcumstances, t he 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 un reasonable to ensure truthful testimony and prevent

unnecessa ry trauma.8 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 th e bounds of reason. [Ci tation.] ' " ( 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 witne sses; 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 1 87, 199.)
B. Analysis
Ernesto challenges the sufficiency of the evidence to support the court ' s jurisdictional finding s 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 is9

not credible and " simply [does] not want to live with her father. " He highlight s perceived inconsisten t testimony or past falsehoods by Victori a . We conclude substantial evidence supports the juvenile court ' s jurisdictional findings under section 300, subdivisions (a) and (d). Jurisdiction under s ection 300, subdivision (a) is appropriate when " [t] he child has suffered, or there is a substantia l 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 se rious 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, constitut ed 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 s ection 300, subdivision (d) is appropriate when " [t ]h e 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 va ried 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 evidenc e supported the findings that Victoria suffered serious physical harm , and was at substantial risk of serious physical10

harm , by Ernesto

. T he juvenile court found the notion that Victoria had manufactured

two different physical altercations to escape her f ather ' s stric t household " patently absurd. " Sc hool 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 , hou sehold dynamics , and two physical fights that had escalated in violence

. It found Ernesto ' s testimony about the altercations unbelievable insofar as his characteriz ation 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 suppo rt 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 dela yed 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 had11

consistently repeated her claims of inappropriate sexual touching to two different social workers, a doctor in the emergency room, a forensic interview er , 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.

M C DONALD, J.
WE CONCUR:

HUFFMAN, Acting P. J.

O ' ROURKE, J.