Filed 7/24/14 In re E.C. CA2/1
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                          SECOND APPELLATE DISTRICT

                                                         DIVISION ONE


In re E.C. et al., Persons Coming Under the                                  B249085
Juvenile Court Law.                                                          (Los Angeles County
                                                                              Super. Ct. No. CK97191)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
          Plaintiff and Respondent,

    v.

L.C., et al.,
         Defendants and Appellants.


          APPEAL from orders of the Superior Court of Los Angeles County. Rudolph
Diaz, Judge. Reversed.
          Julie E. Braden, under appointment by the Court of Appeal, for Defendant and
Appellant L.C.
          Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and
Appellant Victor F.
          John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
                                        _______________________________
       The juvenile court sustained a petition in which the Los Angeles County
Department of Children and Family Services (DCFS or the department) alleged six-year-
old Jessica F. was put at risk of physical harm by use of inappropriate physical discipline
by her father’s girlfriend, L.C. Specifically, L.C. pinched Jessica’s nose, causing it to
bleed, and slapped the back of her hands, causing her to cry. The juvenile court detained
the minor from father and placed her in foster care pursuant to Welfare and Institutions
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Code sections 300, subdivisions (a) and (b), and 361.2, subdivision (a). (On appeal,
DCFS abandons its subdivision (a) allegation.) Father challenges the jurisdictional and
dispositional findings, arguing insufficient evidence supports the court’s findings. We
agree and accordingly reverse.
                        FACTS AND PROCEEDINGS BELOW
       The family in this case consists of father, L.C., Jessica, L.C.’s five-year-old son
and father’s and L.C.’s infant son. When Jessica’s mother was deported to El Salvador
she first moved in with paternal relatives, then with father and L.C. Jessica did not like
L.C. and did not want to live with her. She refused to follow L.C.’s instructions, refused
to do her schoolwork, and cried and lied when she did not get her way. She was also
susceptible to nosebleeds, frequently getting them, according to a foster parent, when she
played outdoors during hot weather.
       In October 2012, eight months after Jessica moved in with father and L.C., DCFS
received an anonymous referral indicating an anonymous family member had reported
that L.C. hit Jessica often, slapped her face, would force her to bend over and then stack
luggage on her back, and two weeks earlier grabbed her nose and pulled it with so much
force that she broke a nail. The reporting party stated the family member had stated L.C.
would pinch Jessica on the chest, leaving a purple mark.
       DCFS investigated.



       1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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        Jessica reported to DCFS that L.C. had hit her, pinched her chest, and struck her
on the knees with a belt. The social worker found no marks or bruises, and several
months later Jessica later recanted the story. Jessica’s teacher reported she did not
believe Jessica was being abused in the home and stated L.C. had told her Jessica was
having behavioral issues at home and was defiant and angry most of the time. The
teacher stated Jessica cried often when upset, including when she did not want to go
home.
        Father admitted to spanking Jessica when she misbehaves but denied the
allegations of abuse by L.C. He stated Jessica was defiant toward his brother when she
lived with him and told father she was being hit by his brother and his wife, which led
father to bring her to live with him. Father stated L.C. used only “time outs” as a means
of discipline.
        L.C., who at the time was eight months pregnant, denied the abuse allegations and
stated Jessica was a “liar.” She reported she had been called to the school to discuss
discipline issues reported by Jessica’s teacher, who had said Jessica was defiant and
refused to listen in class. L.C. reported that Jessica’s nose bleeds easily, and just the
other day it bled when she bumped into a playmate. However, L.C. later denied ever
having seen Jessica with a bloody nose. L.C. stated she used only time outs as discipline.
        An uncle in the home stated the reporting party was exaggerating, and he did not
believe any abuse occurred.
        On October 23, 2012, Jessica told police L.C. slapped her once in the face.
Months later she admitted to a social worker she lied about that.
        On October 25, 2012, Jessica told a medical professional that L.C. would
sometimes slap her hand and had once grabbed her nose and caused it to bleed. She said,
L.C. “was mad. I was supposed to clean my room and I was sitting on the sofa. She
made my nose bleed with her hand. She put my shirt right on my nose to stop bleeding.”
Jessica denied having been hit with any object.
        In December 2012, DCFS detained Jessica.



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        In January 2013, L.C. again denied any abuse and told a social worker Jessica
once suffered a bloody nose when she hit herself with a toy by accident. She said Jessica
lies frequently and needed therapy because she had abandonment issues.
        Father repeated that discipline in the home consisted of time outs and said he had
never seen any evidence of physical abuse, and if he had, he would have called the police
himself.
        In February 2013, Jessica told a social worker, “[L.C.] pinched my nose, but only
on one side. It was bleeding a little bit.” The investigator asked, “When did this
happen?” Jessica replied, “This happened last month in January. . . . I was sitting on the
sofa in the living room. Dad was in his bedroom. I was playing in the living room with
[L.C.’s] son and [L.C.] said, ‘Stop playing.’ Her son stopped but I kept playing and
that’s when she pinched my nose. I cried and my dad came into the living room to see
what was going on. He saw my nose bleed and took one of my shirts and put it on my
nose to stop the bleeding and then told me to go into the bedroom so that he and [L.C.]
could talk. After they talked, he . . . told me to go outside and play in the front yard. . . .
[¶] I made up all of the other stuff about [L.C.] hitting me on my knees with a belt and
hitting me in my face and pinching my chest and grabbing me by the waist with her
hands. . . . Because I didn’t want to live there anymore. I wanted to stay somewhere
else, like here [in foster care]. I like it here. . . . I don’t like [L.C.]. I don’t want my dad
to have a girlfriend. [L.C.] already has a baby and a boy and she doesn’t like me. When
I asked her for some Yogurt, she would not give me any but she gave some to her son and
the baby but not to me. . . . [Father] got married to [L.C.] and now he won’t listen to me
and that is why I made up some of the story. My mom does not like [L.C.] either. She
talked to me . . . on the phone not long ago . . . and I know that she and [L.C.] are not
friends. No, my mom never said anything bad about [L.C.] to me. I just don’t like
her. . . . [¶] . . . . I like my Dad but I don’t want to live with him because I don’t like
[L.C.] and I don’t want to live with them. One time [L.C.] hit me with her hand on the
back of my hand. I cried a little bit. . . . I am afraid of [L.C.] but I am not afraid of my
dad.”

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         On the same day, a paternal great-aunt living in the home reported she knew
Jessica was being abused because the child had told her so and would not lie about such
things. However, the paternal grandmother and a paternal uncle both stated Jessica
sometimes “would lie about things,” including making false allegations of abuse.
         Jessica’s foster mother reported that during the first few weeks of foster care,
whenever Jessica “wanted something but could not get her way, she would cry. She
would cry about everything. . . .” The foster mother also reported that in the space of two
months Jessica had had “two nose bleeds due to her being outside in the sun for a long
period of time.” Father and L.C. visited Jessica approximately once a week, during
which Jessica would run to L.C. and give her a hug, “as though she was very happy to see
her.” Jessica was always happy to see them and told the foster mother she enjoyed
visiting with them “but does not want to live with them.”
         No school official, teacher, social worker, medical professional, police officer, or
relative reported ever seeing any mark on Jessica’s face or hands.
         DCFS recommended that Jessica be removed from father’s custody and
reunification services ordered.
         No further evidence was presented at the jurisdiction hearing. Although Jessica
was present at the hearing, she did not testify, and the matter proceeded by argument
alone.
         After argument, the trial court sustained both the subdivision (a) and (b)
allegations of the section 300 petition as follows: “On a prior occasion in 2012, [L.C.]
inappropriately disciplined the child by grabbing the child’s nose, inflicting a bleeding
laceration to the child’s nose. On prior occasions, [L.C.] struck the back of the child’s
hands . . . . Such inappropriate discipline was excessive and caused the child
unreasonable pain and suffering. The father failed to protect the child. The father knew
or reasonably should have known of the physical abuse of the child by [L.C.], and
allowed [L.C.] to reside in the child’s home and have unlimited access to the child. Such
inappropriate discipline of the child by [L.C.] and the father’s failure to protect the child
endangers the child’s physical health and safety and places the child at risk of physical

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harm, damage, danger, physical abuse and failure to protect.” The court also sustained a
separate petition as to L.C.’s other children based solely on Jessica’s story of having had
her nose pulled. The court declared all the children wards of the court, ordered Jessica
removed from the home, and ordered that reunification and parenting services be
           3
provided.
       Three weeks after the adjudication, before father filed his notice of appeal, father
told social workers he could not understand why they would believe Jessica. He said he
had no time for reunification services and in fact did not want to reunify. Because Jessica
did not want to live with him, he would prefer that she be placed with his cousin, who
lived down the street. L.C. agreed, stating she did not want Jessica back in the home and
would not take her children to visit her, as she did not want them around her.
       Father nevertheless appealed the juvenile court’s orders.
                                       DISCUSSION
       “On appeal, the ‘substantial evidence’ test is the appropriate standard of review for
both the jurisdictional and dispositional findings. [Citations.] The term ‘substantial
evidence’ means such relevant evidence as a reasonable mind would accept as adequate
to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid
value. [Citation.]” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) “In making this
determination, all conflicts are to be resolved in favor of the prevailing party, and issues
of fact and credibility are questions for the trier of fact.” (In re Ricardo L. (2003) 109
Cal.App.4th 552, 564.) In other words, “[i]t is the trial court’s role to assess the
credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the
evidence. We have no power to judge the effect or value of the evidence, to weigh the

       2
       The court sustained the subdivision (a) allegation despite there being no evidence
whatever that father committed any abuse. DCFS abandons this allegation on appeal.
       3
         The parents filed a separate appeal as to the other children but the juvenile court
later terminated jurisdiction over them, rendering that appeal moot. We consequently
granted DCFS’s motion to dismiss it.


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evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or
the reasonable inferences which may be drawn from that evidence. [Citations.] Under
the substantial evidence rule, we must accept the evidence most favorable to the order as
true and discard the unfavorable evidence as not having sufficient verity to be accepted
by the trier of fact. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) “In
dependency proceedings, a trial court’s determination will not be disturbed unless it
exceeds the bounds of reason.” (In re Ricardo L., supra, at p. 564.)
       Father contends insufficient evidence supported the juvenile court’s assertion of
jurisdiction under subdivision (b) pertaining to domestic violence perpetrated by L.C.
We agree.
       A child comes within the jurisdiction of the juvenile court under subdivision (b) of
section 300 if he or she “has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of the failure or inability of his or her
parent or guardian to adequately supervise or protect the child . . . .”
       The only evidence that Jessica suffered any injury was her own story, told first to a
relative, then to a social worker, then to police, then to a medical professional, and finally
to another social worker, that L.C. pinched her nose, causing it to bleed, and slapped her
hand. This was not substantial evidence.
       In any question involving the testimony of a small child a question naturally arises
as to whether the child can distinguish between truth and fantasy and appreciate her
responsibility to tell the truth. (See, e.g., Ballard v. Superior Court (1966) 64 Cal.2d
159.) Here, the court asked Jessica no questions, made no inquiry to determine her
ability or desire to distinguish truth from fantasy, and took no opportunity to observe her
demeanor when she related her story, or even to see whether she would maintain that
L.C. had pulled her nose. These were critical omissions, as Jessica was an admitted
yarner. When she told a relative and, two weeks later, a social worker about the nose
pinching she also said she had been pinched in the chest, slapped in the face, and strapped
across the knees, yet later admitted these never occurred. She told the police much the
same tale but later admitted she fabricated it. In February 2013, she told a second social

                                                7
worker about the nose pinching, but said it occurred “last month,” i.e., in January 2013,
three months after DCFS’s investigation into the pinching began.
       Several family members, a teacher, a foster parent, and Jessica herself reported she
was defiant and disobedient, frequently cried when not getting her way, and often lied.
Jessica herself admitted she fibbed about L.C.’s actions because she did not want to live
with her, because she did not want her father to have a girlfriend, did not like it when on
occasion did not get her way, such as when it was time to stop playing and clean her
room, and did not like it when L.C. gave yogurt to her own children but not her. Further,
several parties reported that Jessica suffered nosebleeds easily, which gave the six-year-
old a real malady upon which to ground a well-rehearsed and temporally changeable
story about being pinched and made to bleed.
       No other evidence supported jurisdiction. No mark was ever found on Jessica
consistent with the line she ultimately settled on, and no other sign of abuse, neglect, or
discord in the home—other than was caused by Jessica herself—existed.
       An appellate court does not weigh believability. But an internally inconsistent
out-of-court story told by an indisputably—and self-admittedly—willful, manipulative,
disobedient, tantrum-throwing six-year-old who selectively acknowledged most of the
tale was untrue, who admitted to lying on multiple occasions—to relatives, social
workers and police—to achieve exactly the result she ultimately did achieve, and who in
using the same libretto on different occasions placed the crucial event at inconsistent and
impossible times, is not such “evidence as a reasonable mind would accept as adequate to
support a conclusion [, i.e.,] evidence which is reasonable in nature, credible, and of solid
value.” (In re J.K., supra, 174 Cal.App.4th at p. 1433.)
       We need not decide whether nose pinching presents a substantial risk of serious
physical harm because no reasonable trier of fact could conclude based on the hearsay
statements of a six-year-old self-confessed fibster that any pinching occurred here.




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                                    DISPOSITION
      The orders of the juvenile court are vacated.
      NOT TO BE PUBLISHED.




                                                       CHANEY, J.


We concur:




      ROTHSCHILD, P. J.




      MILLER, J.*




      *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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