Filed 1/29/14 In re A.J. CA3
                                           NOT TO BE PUBLISHED
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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publication or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (San Joaquin)
                                                            ----



In re A.J. et al., Persons Coming Under the
Juvenile Court Law.

SAN JOAQUIN COUNTY HUMAN
SERVICES AGENCY,                                                                            C072132

                   Plaintiff and Respondent,                               (Super. Ct. Nos. J05760, J05761)

         v.

AR.J.,

                   Defendant and Appellant;

A.J. et al.,

                   Respondents.

         Appellant Ar.J., father of the minors A.J. and An.J., appeals from the juvenile
court’s jurisdictional and dispositional orders. (Welf. & Inst. Code, §§ 360, subd. (d),




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395.)1 He contends the juvenile court improperly denied reunification services based on
a flawed finding of severe sexual abuse. Ample evidence of severe sexual abuse was
presented at the jurisdictional hearing and the juvenile court correctly relied on this
evidence in making its dispositional findings and orders. Accordingly, we affirm the
judgment.
                                     BACKGROUND
                        The Initial Complaint and Investigation
       The San Joaquin County Human Services Agency (Agency) filed a dependency
petition alleging failure to protect and sexual abuse (§ 300, subds. (b), (d)) in July 2011
after 16-year-old A.J. reported to her paternal aunt that father had sexually abused her
since she was nine. The minors were placed in the paternal aunt’s care.
       Father was a Penal Code section 290 sex offender registrant, having been
previously convicted of molesting A.J.’s mother, K.J., when father was 25 and K.J.
was 13.
       A.J. told investigators father put his penis inside her only a little so she would
remain a virgin. She said his penis would be inside her “probably about an hour.” He
also taught her how to perform oral sex on him. Father had threatened to kill her if she
told anyone and put a knife to her throat numerous times.
       Father also used a purple vibrator on her private parts, and videotaped her
masturbating many times. He would put her on a black table with stirrups where she
would masturbate while he videotaped. According to A.J., father had a tattoo on his
penis of a white eyeball but the ink had faded. He also molested her mother, K.J., when
K.J. was 13 and A.J.’s friend, Crystal. A.J. did not think father molested An.J.



1      Undesignated statutory references are to the Welfare and Institutions Code.


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          Father voluntarily showed a detective his penis, which was not tattooed. He
admitted buying a table for doing tattoos about two weeks ago, but did not know it had
stirrups until he took the table home. He believed A.J. was having a sexual relationship
with her half brother Anthony, who was staying at the same apartment complex as the
paternal aunt. Father thought she made up the allegations so she could be closer to her
half brother. A.J. told investigators she was close with Anthony, but they were
“completely just brother and sister.”
          An.J.’s mother, J.J., lived in Utah. She sent An.J. to live with father after
Children’s Protective Services in Utah received reports that An.J. suffered from
constant head lice and there was possible drug use in the house.
          The minors were detained in July 2011.
          The March 2012 jurisdictional report noted A.J. could not count the number of
times father touched her private parts, but it was “very often.” The last time he
molested her was about a week before she told her aunt, when father put her on the
couch, took her clothes off, and began to have intercourse with her.
          Officers searching father’s van found a purple vibrator. Numerous letters, cards,
and notes from A.J. to father in which she expressed her love for him were appended
to the report.
          In March 2012, the Agency filed a second amended section 300 petition on
behalf of An.J. alleging she was at risk of sexual abuse due to father’s sexual abuse
of A.J.
                                  The Jurisdictional Hearing
          The juvenile court conducted an extensive jurisdictional hearing on the petitions
between March 5, 2012, and April 10, 2012, hearing testimony from 15 witnesses.




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       A.J. testified that father started touching her when she was seven. He taught her
how to perform oral sex by putting her mouth over his private parts. He would put his
penis about “half” into her vagina. It hurt every time. Father also used on her a purple
dildo that vibrated, and had a cord that turned it on and off. It was kept in a plastic bag,
in a closet above the garage. Father used it on her more times than she could count.
       “White stuff” went out of his penis and into her vagina when he had intercourse
with her. It went on a blanket when she performed oral sex on him. Father used
lubricating gel, which was stored with the dildo, to make intercourse easier for her.
       Father usually would not allow her to go places other than school. He had her
homeschooled starting her freshman year. Father told her not to tell anyone about the
relationship, and threatened to kill her if she did. He used a knife and a gun to
threaten her.
       During a slumber party at her aunt’s house, A.J. felt it was the right time to tell
someone what was happening. She told her aunt about father touching her
inappropriately.
       Father’s genital area was shaved and looked like a “mushroom.” He had a tattoo
on the tip of his penis that looked like an eyeball. The white part of the tattoo would
fade but the black circle was always there.
       While A.J. did not think father molested An.J., he did molest A.J.’s friend,
Crystal. Crystal was 12 or 13 years old at the time, but later denied being molested.
       A.J. was videotaped touching herself. She was naked, and father would start the
camera and then leave the room. It started when she was 12 or 13. She watched the
videos with her father a few times.




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       A.J. identified a photograph of the purple dildo father used on her. She also
identified a tattoo bed with stirrups where “sexual things” occurred. Before that, it
would happen on the floor.
       A.J. loved her dad. She testified extensively about letters she had written,
primarily to her father. She said nice things to him in the letters, but they were made up
so he would treat her better.
       Dr. Anthony Urquiza gave expert testimony on Child Sexual Abuse
Accommodation Syndrome (CSAAS) and false allegations associated with the
syndrome.
       He explained five characteristics that, according to the CSAAS theory, often
occur in children who have been sexually abused: (1) secrecy; (2) the victim’s feeling
of helplessness; (3) the victim’s feeling of entrapment and attempts to cope by
accommodation; (4) delayed or unconvincing disclosure of the abuse; and (5) retraction.
Meeting the criteria does not determine whether the child had been abused.
       Dr. Urquiza met with A.J. twice and once with An.J. An.J. was having “severe
problems with masturbation,” which distressed her caretaker because it happened
frequently and everywhere. She showed some moderate symptoms of anxiety, anger,
aggression, and depression.
       A.J. was “extremely high in most of the scales that included trauma, depression,
anxiety, aggression, defiance.” She showed many “elevated symptoms or
characteristics related to some type of traumatic experience or trauma symptoms.” She
likely met the clinical diagnosis for posttraumatic stress disorder (PTSD).
       The parties stipulated the vibrator contained DNA from A.J. and DNA from
father’s semen.




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       The paternal aunt testified that father was initially hesitant to let A.J. attend the
slumber party. A.J. started screaming, “call the police” in the bathroom. She said father
had touched her inappropriately and she did not want to return home.
       According to the paternal aunt, A.J. said several people touched her or tried to
touch her inappropriately. At some point, the aunt no longer believed A.J. A.J.
eventually started to cry for her dad. She also engaged in very promiscuous behavior
while living with the paternal aunt, and lied to her “[a]ll of the time.”
       Father presented several witnesses who testified that he and A.J. acted
appropriately together, like father and daughter.
       The social worker assigned to the case testified that A.J. complained no matter
where she was placed, and she ran away from two or three foster homes. A.J.
sometimes lied to the social worker and tried to manipulate her. A.J. had been
identified as having PTSD.
       Father also presented the expert testimony of Dr. William O’Donohue on child
sexual abuse and sexual abuse allegations. He opined that CSAAS was “junk science”
because it has the trappings of science but the theory has not been tested on sexually
abused children to see if the theory fits.
       When determining whether an allegation was true, he looked for “consistency in
core details.” Dr. O’Donohue would look for grooming, and threatening or bribing the
victim not to tell, and for a diagnosis of PTSD. Isolation and secrecy is another
characteristic of molestation; it is not typical to molest a child while another child is
sleeping next to them. A victim typically would not write positive letters to the
perpetrator. If the purple vibrator described by A.J. “had both father’s sperm on it and
minor’s DNA on it,” it would help him resolve any of the inconsistencies in the case.




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       The juvenile court sustained the petitions. The court found some of A.J.’s claims
were “very difficult to believe,” which was “not unusual.” Nonetheless, the juvenile
court believed the minor “in some way.” While the sexual abuse did not happen on
every occasion described by her, it happened “on more than one occasion.” The
juvenile court emphasized the DNA evidence and the lubricant found with the vibrator,
as well as A.J.’s diagnosis of PTSD.
       Summing up, the juvenile court stated: “So, I base my decision, my finding on
the requirements here by a preponderance of the evidence. Is it beyond a reasonable
doubt? I can’t say that. I wouldn’t want to make that stretch. Why law enforcement
has not made, gone forward, I won’t make comments based on what they do or don’t
do.” In sustaining the petitions, the juvenile court found “more than sufficient factual
basis” for the allegations.
                               The Dispositional Hearing
       In the June 2012 dispositional report, the Agency recommended denying services
to father and A.J.’s mother, with services for An.J.’s mother.
       No additional evidence was presented at the September 2012 dispositional
hearing. The juvenile court found by clear and convincing evidence that A.J. “had been
sexually abused or is in substantial danger of being sexually abused,” she “has been
adjudicated a dependent child of the Juvenile Court of San Joaquin County as a result of
severe sexual abuse by the father,” and services would not benefit either child. The
juvenile court accordingly denied reunification services for father as to both minors
pursuant to section 361.5, subdivision (b)(6).




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                                       DISCUSSION
       Father’s sole contention is that the juvenile court’s jurisdictional findings
precluded it from denying reunification services pursuant to section 361.5,
subdivision (b)(6).
       Section 361.5, subdivision (b)(6), provides that the juvenile court may deny
reunification services if the court has found by clear and convincing evidence that “the
child has been adjudicated a dependent . . . as a result of severe sexual abuse [defined as
including but not limited to sexual intercourse, or stimulation involving genital-genital,
oral-genital, anal-genital, or oral-anal contact between the parent and the child or a
sibling] to the child, a sibling, or a half sibling . . . and the court makes a factual finding
that it would not benefit the child to pursue reunification services with the
offending parent.”
       Father argues section 361.5 requires the juvenile court to find severe sexual
abuse by clear and convincing evidence. We agree. (See In re Rebekah R. (1994)
27 Cal.App.4th 1638, 1651 [juvenile court must make independent finding of severe
harm before denying reunification services].)
       Father then claims the juvenile court “barely found” a preponderance of the
evidence to sustain the petition at the jurisdictional hearing.2 He notes the juvenile
court identified several instances where A.J.’s credibility was questionable. He also
claims “the evidence was less than clear and convincing in this case.”
       Father recognizes that sexual intercourse can support a finding of severe sexual
abuse under section 361.5, subdivision (b)(6), and the juvenile court made such a
finding at the jurisdictional hearing. According to father, this finding, made by a


2     The juvenile court must find the jurisdictional facts by a preponderance of the
evidence. (§ 355.)


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preponderance of the evidence at the jurisdictional hearing, cannot support the finding
by clear and convincing evidence required to deny reunification services under section
361.5. From this, father concludes the juvenile court did no more than engage in a
“bootstrap operation” and “legal hocus-pocus” by “[i]dentifying a jurisdictional finding
of sexual intercourse as the legal equivalent of clear and convincing evidence of
severe sexual abuse.”
       Here, the juvenile court conducted an extensive jurisdictional hearing and made
detailed findings. While it identified problems with the Agency’s case, the juvenile
court ultimately found A.J. was credible and father had sexually abused her. Sustaining
the jurisdictional allegations by a preponderance of the evidence, the juvenile court
indicated the evidence would likely not satisfy the reasonable doubt standard, and did
not address the clear and convincing standard.
       Given the extensive testimony at the jurisdictional hearing, the parties declined to
submit additional evidence at the dispositional hearing. In making the dispositional
findings, the juvenile court relied on the evidence presented at the jurisdictional hearing.
The juvenile court paraphrased the statutory language, finding “by clear and convincing
evidence” that “the minor has been adjudicated a dependent child of the Juvenile Court
of San Joaquin County as a result of severe sexual abuse by the father.” “The fact that
the juvenile court had earlier made jurisdictional findings on some of the same evidence
using a preponderance of the evidence standard does not impugn the validity of the
subsequent dispositional findings.” (In re William B. (2008) 163 Cal.App.4th 1220,
1230.) Viewing the evidence in the manner most favorable to the judgment, we
conclude the dispositional findings were supported by substantial evidence. (In re
Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)




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       Since the jurisdictional findings did not preclude a later finding of severe sexual
abuse by clear and convincing evidence, the juvenile court did make such a finding at
the dispositional hearing, and that finding is supported by substantial evidence, the
juvenile court did not err in denying father reunification services pursuant to
section 361.5.
                                     DISPOSITION
       The judgment is affirmed.



                                                        HOCH         , J.



We concur:



      ROBIE        , Acting P. J.



      BUTZ         , J.




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