In re Esmeralda B.
- Reporters:
- ,
- Before:
- Work, Kremer, Huffman
WORK, J.
M. Lourdes B. (Maria) and Neal B. appeal the jurisdictional and dispositional dependency orders entered after the court found their eight-year-old daughter, Esmeralda, and her younger siblings were in danger of future serious physical injury because their parents were unable to adequately supervise or protect them. (Welf. & Inst. Code,1
I
Maria and Neal are married and reside with their four children, Esmeralda, born in 1983, Travis, born in 1987, and twins Arlen and Ariana, born in 1990. On April 16, 1991, Maria, who does not speak English, took Esmeralda to see their family pediatrician, Dr. Gene Nathan, who does not speak Spanish, because Esmeralda had found a dried blоod spot in her panties when she awoke during the night. Dr. Nathan‘s pelvic examination of Esmeralda revealed an injury to the posterior fourchette and a small tear of the hymen. When questioned, Esmeralda stated she had fallen off her bicycle the previous Saturday. Suspecting this was not the cause of her injury, Dr. Nathan referred them to a specialist at children‘s hospital. There, Dr. Bronwen Anders, a pediatrician, examined Esmeralda and photographed the injury through the use of a colposcope. Dr. Anders found a torn hymen posterior fourchette and external abrasions she believed were nonaccidental. Esmeralda and her parents informed Dr. Anders she had fallen off her bicycle once ten days before and again three days before the examination,
On April 19, 1991, the department of social services (Department) filed petitions alleging the four children were minors falling under the provisions of
II
Esmeralda was called as the Department‘s first witness. Over her parents’ objection, she testified in chambers outside the presence of her parents at the request of her counsel who believed she might be more truthful if her parents were not present. For three and one-half hours she was questioned extensively by the court and by each of the four attorneys involved in this case, the lawyers for Maria, Neal, Esmeralda and the Department. This examination is reported in 130 pages of transcript. Esmeralda appeared candid in her remarks, responsive to the questions and absolutely adamant that she was aware of no “bad touching” in her vaginal area. Further, she described her relationship with her immediate and extended family members who from time-to-time resided in her home, as positive. She denied any molestation had ever occurred to her knowledge. She stated she never slept in a bedroom with her father or any male, and that “in my home girls play with girls and boys play with boys.” It is noteworthy that her testimony during this intensive examination outside the presence of her parents was consistent with the history she had given throughout this incident.
Social worker D‘Alicia Marron was examined concerning her report, which was received in evidence. She first interviewed Esmeralda the day after the incident was reported. Esmeralda always denied that any “bad touching” had occurred. Marron had invеstigated the incident by interviewing other members of the family. She found Esmeralda had no fear or discomfort about any member of her family, understood the difference
The Department rested its case after Marron testified. At this juncture, the court had before it only the extensive examination of Esmeralda denying any sexual molest and corroborating the caring, protective parental аtmosphere in her home, evidence supporting a finding of sexual molest by an unidentified perpetrator from Dr. Anders, and a social report prepared by Marron who also testified she had found no evidence of any neglect or unreasonable activities of the parents which was causally related to the injury (which she assumed for the рurpose of her investigation to be a sexual molest) and was satisfied the family relationship was healthy, posing no risk to Esmeralda were the court not to take jurisdiction.
At this point the parents moved to dismiss for lack of evidence that Esmeralda‘s injury, even if caused by molest, was related to any irresponsible activity on her parents’ part, laсk of supervision or neglect. The motion was denied, the court appearing to adopt the argument of Esmeralda‘s counsel and the Department that evidence suggesting a single incident of sexual molest from an unknown perpetrator was sufficient to sustain a petition under
(1) In the absence of any evidence of neglect or wrongdoing on the parents’ part, the court was urged to rely on the presumption in
Second, even had there been evidence to establish the predicate for the presumption, it is not one which affects the burden of proof, but only the burden of producing evidence (
In any event, after the motion for dismissal was denied the pаrents introduced testimony from several witnesses, family members and interviewing social workers. Essentially, the evidence ranged from expert opinion from Dr. Jess Diamond, a pediatrician, that the injuries were consistent with the history of a straddle injury resulting from a fall from a bicycle as described by Esmeralda and various percipient witnesses, to evidence there was no inadequate parental supervision. Unlike the usual case of child molestation, the Department‘s evidence and that introduced by the parents shows Esmeralda never once complained of a sexual molest, never deviated from her claim to be unaware of any such “bad touching” in spite of extensive interviewing by severаl social workers, physicians and child abuse specialists, and never exhibited reluctance to discuss her history openly and at length nor showed emotional or psychological traits commonly observed in children who have been sexually abused.
The social worker employed at Children‘s Hospital who interviewed Esmeralda and her parеnts immediately following Dr. Anders‘s examination, found her relaxed with a demeanor that indicated she was unafraid and not being secretive. The history she obtained from Esmeralda was that she had fallen from a bicycle, that same night she had awakened to go to the bathroom and while there had noticed dried blood in her panties. The social worker stated neither Esmeralda nor her parents reacted inappropriately when she advised them Dr. Anders suspected the injury may have been caused by molestation and the parents exhibited appropriate concern for Esmeralda‘s welfare. She denied any “bad touching” and did not appear to be evasive. Although this social worker did nоt converse directly with Maria
III
In final argument, the Department‘s counsel solely argued that although there was conflicting evidence, both expert and otherwise, as to how Esmeralda‘s injury occurred, the court should resolve the conflict by finding Esmeralda suffered a detrimental condition “that is of the nature of the nonaccidental trauma indicative of molest” and asked the court to make a true finding on the petition on that basis.
In contrast, the parents’ counsel called the court‘s attention to the language of
Esmeralda‘s counsel argued at length that the court should resolve evidentiary conflicts in favor of finding Esmeralda‘s injuries occurred as a result of sexual molest at an unidentified place by an unidentified perpetrator. Counsel asked the court to rely on the
“The [parents] are really nice people, ... [m]y experiences with these people have been very, very positive. My office‘s experiences with these people have been very, very positive. They‘re very appropriate with their family. It is a wоnderful family. I think they love their children very much. They‘re appropriate with their children.
“They have — an enormous extended family floats in and out of this house. They‘re lucky that they have that benefit of having that extended family. Most of us don‘t.” She believed, however, the father inappropriately had determined sexual molestation probably did not occur, based on Esmeralda‘s
“Well, frankly, your Honor, my client‘s telling the truth. I think that my client has been interviewed too many times. I think there‘s some outside factors that maybe [sic] influencing it, but I believe my сlient has told the truth. The truth is what my client percieves [sic] to be the truth. That‘s what she is told.” Counsel then suggests that just because Esmeralda is happy, did not seem to be having any problems, that does not mean there is not a possibility a molestation may have occurred which she found pleasurable.
In closing argument, the Department‘s counsel urged the court to rely on the
In announcing its decision, the court discussed the conflicting evidence concerning the physical cause of Esmeralda‘s injury, whether molest or accidental, and resolved it in favor of molest.2 However, the court did not point to any evidence supporting a finding the molest, if it occurred, resulted from the parents’ failure or inability to adequately supervise or protect her. (2) Nor did the court make any such finding, instead concluding “that [Esmeralda] needs the protection of the juvenile court because of the actions of the parents subsequent to the injuries.” There is no substantial support for this conclusion.
The postinjury “action” of the parents consisted of seeking immediate medical attention for Esmeralda, cooperating with the treating and clinical physicians and various social workers investigating the cause of injury and their family history, investigating the possibility that a molestation may have occurred by some member оf their extended family, seeking independent expert medical advice from a qualified pediatrician, Dr. Diamond, who concluded Esmeralda‘s injury was consistent with one likely to have resulted from the bicycle accident documented by Esmeralda and several witnesses,
However, the court commented that because the father had come to believe that Esmeralda‘s injury was not caused by a sexual molest, for some reason not explained by evidence in this record, the parents were not able to provide her supervision or protection adequate to avoid future serious physical injury.
We recognize that denial is a factor often relevant to determining whether persons are likely tо modify their behavior in the future without court supervision. This most commonly is significant in cases where a person having been adjudicated to have perpetrated sexual or physical abuse on a minor in his custody, vigorously denies the abuse and, because of this denial, is likely to be resistant to therapy or treatment necessary to effect behаviorial changes to insure the minor will not be a risk if placed in his custody. That is not the case here. This father was never suspected of causing this injury once the investigation began. Esmeralda and her siblings had been in the physical custody of both parents for some time before the jurisdictional hearing without incident, and the Department‘s social investigators found they were not at risk.
On this record, we conclude there is no substantial evidence to support the jurisdictional findings under
Kremer, P.J., and Huffman, J., concurred.