Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWJ009257. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Ackerman & Sands and Richard D. Ackerman for Defendant and Appellant D.C.
Robinson Legal and Raymond G. Robinson for Defendant and Appellant D.C.C.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
MILLER, J.
Pacific Justice Institute, Kevin T. Snider and Omid Shabani for DefendtheChildren.org and S.A.V.E. Kaylee as Amicus Curiae on behalf of Defendant and Appellant D.C.
D.C.C. (Stepfather) and D.C. (Mother) appeal the orders made by the juvenile court following a contested jurisdiction and disposition hearing. (Welf. & Inst. Code, § 300.) The juvenile court ordered that B.S., a 12-year-old female, be removed from Mother’s physical custody, and placed in her father’s custody. The juvenile court ordered that B.S.’s three half-brothers, B.C., T.C., and J.C., be returned to Mother’s and Stepfather’s custody, but continue to be supervised by a Riverside County Department of Public Social Services (the Department) social worker, and continue to receive services.
B.S.’s biological father, who is not a party to this appeal, is referred to as “Father” throughout the opinion.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Stepfather contends that (1) evidence received at the contested hearing should have been admitted pursuant to the requirements set forth in the Evidence Code; (2) he was denied the opportunity to prepare a defense; (3) the Department did not apply the law in its reports; and (4) Mother’s motions in limine, in which he joined at the contested hearing, should have been granted.
Mother contends that the juvenile court erred by (1) not advising her of her right against self-incrimination; (2) creating a “confession dilemma”; (3) not requiring expert testimony; (4) admitting the Department’s reports; and (5) denying her motions in limine.
In an amicus curiae brief, DefendtheChildren.org and S.A.V.E. Kaylee contend (1) the juvenile court erred by not applying the clear and convincing evidence standard of proof; (2) substantial evidence did not support the removal of B.S.; and (3) removing B.S. violated Mother’s and Stepfather’s due process rights. We affirm the judgments.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
In May 2009, B.S. was 12 years old; B.C. was five years old; and T.C. and J.C. were three years old. Stepfather is B.S.’s stepfather, and B.C., T.C., and J.C.’s biological father. In April 2009, the Department received a report that Stepfather sexually abused B.S. Specifically, it was reported that Stepfather hugged B.S. while she was naked.
On April 24, 2009, a Department social worker spoke to B.S. at B.S.’s home. B.S. told the social worker that Stepfather opened the bathroom door when B.S. was naked and told her “not to take such a long shower.” Stepfather then entered the bathroom, and put his arm around B.S. B.S. cried while talking to the social worker, and said that she felt “uncomfortable” when Stepfather hugged her while she was naked.
B.S. said that Stepfather blow dries and/or towel dries her hair after she showers. Stepfather has instructed B.S. to not wear a shirt while he dries her hair. Sometimes B.S. also does not wear a bra while Stepfather is drying her hair. B.S. reported that Mother did not know that Stepfather instructed B.S. to not wear a shirt, because Mother “‘would be mad’” at B.S. B.S. also told the social worker that Stepfather hugged her while she was not wearing a shirt.
Mother and Stepfather arrived at the home while the Department social worker was speaking to B.S. Mother and Stepfather were angry. When the social worker informed Mother than B.S. felt uncomfortable with Stepfather hugging her while she was naked, Mother accused the social worker of “twisting” B.S.’s statement. Mother denied that any domestic violence occurred in the house. Stepfather said that he was a deputy sheriff and knew the laws concerning child abuse. Stepfather said that “if he had not touched the breast, buttocks or private area that he had not broken any laws.”
During the Department’s investigation, it was revealed that Stepfather had a pending criminal case involving a domestic violence charge. The alleged domestic violence incident occurred on March 4, 2009. The incident evolved from Stepfather becoming angry when Mother accused him of having an affair with a woman whom he was calling and text messaging. Stepfather threw a remote control at Mother, but the remote missed Mother and caused a hole in the wall. Father threw a second remote control at Mother, which struck her elbow. Mother cried out in pain. J.C. asked Father, “‘Why are you hitting Mommy?’” Stepfather told Mother, “If you call the cops and ruin my career or hers, I swear I will fucking kill you.” Stepfather then began breaking pictures that were hanging in the hallway by smashing the pictures on the floor.
Two days after reporting the domestic violence, Mother recanted; Mother said that she was confused due to consuming a Xanax. Mother explained that the first remote was thrown at the wall, and the second remote control was thrown in her direction but did not strike her. Mother said that her elbow was injured when she turned around quickly and struck it on the stairway railing.
The Department detained B.S. and the three boys due to (1) Mother minimizing the inappropriate sexual contact between B.S. and Stepfather; (2) the prior domestic violence; (3) Mother telling the Department that there had not been prior domestic violence in the house; and (4) Mother choosing to defend Stepfather, rather than protect her children.
At the detention hearing on May 5, 2009, the juvenile court found that the children came within the jurisdiction of the juvenile court because (1) there was a substantial risk of the children suffering serious physical harm or illness due to the parents’ inability to adequately supervise or protect the children (§ 300, subd. (b)); (2) B.S. had been sexually abused or there was a substantial risk of B.S. being sexually abused (§ 300, subd. (d)); and (3) the child’s sibling had been abused or neglected, and there was a substantial risk that the other children would be abused or neglected (§ 300, subd. (j)).
The juvenile court found that it would be contrary to the children’s welfare to place them in Mother’s and/or Stepfather’s physical custody. Therefore, the juvenile court removed the children from Mother’s and Stepfather’s care. B.S. was placed with Father. B.C., T.C., and J.C. were placed with their maternal grandparents. The juvenile court ordered frequent and liberal visitation between (1) the siblings; (2) Mother and B.S.; and (3) Mother, Stepfather, B.C., T.C., and J.C. The juvenile court ordered reunification services for Mother and Stepfather “pending further hearing.”
B. JURISDICTION/DISPOSITION
A Department social worker spoke to B.S. prior to the contested jurisdiction/disposition hearing. B.S. told the social worker, “‘My stepdad didn’t do anything wrong. It was all rumors, but nobody believes me.’” B.S. then discussed the March 4 domestic violence incident. B.S. said she heard Mother screaming, and Mother told B.S. to get her half-brothers and take them out of the house. Mother, B.S., and the three boys then drove to the house of one of B.S.’s friends. While on the way to the house, Mother spoke on the telephone, and said, “‘ [H]e threw a remote at me and I think my elbow is broken. Can we come to your house?’” While in the car, Mother was crying and the three boys “‘were freaking out.’”
Stepfather told the Department social worker that having to attend a 52-week anger management class was punitive, and dependency matters were not supposed to be punitive. Stepfather went on to complain about (1) one of the social workers assigned to the case, (2) B.S. being interviewed by the Department without a parent or school staff being present; and (3) B.S. not being properly cared for.
Mother instructed the Alternatives to Domestic Violence Center to not release any information about her participation or progress to the Department, other than her dates of attendance. Stepfather did not contact the Alternatives to Domestic Violence Center in order to schedule his classes.
After a contested jurisdiction/disposition hearing, the juvenile court found that domestic violence did occur in the home, and therefore, there was a substantial risk of the children suffering serious physical harm or illness due to the parents’ inability to adequately supervise or protect the children. (§ 300, subd. (b).)
In regard to the alleged sexual abuse, the juvenile court found that B.S. was “a developing 12-year-old” and that standing naked in front of an adult man “was not a natural situation.” The juvenile court cited evidence of Stepfather asking B.S. to remove her shirt, so that it would not become wet while he dried her hair; and opening the bathroom door while B.S. was showering, in order to say goodbye to her. The juvenile court questioned why Stepfather needed B.S. to remove her shirt, and why he could not say goodbye through the closed door. The juvenile court concluded “this was not just a naïve failure to recognize a boundary; that there was something more than that going on.” The court also found that Mother minimized the abuse allegations by blaming the Department. Consequently, the court found true the allegation that B.S. has been sexually abused or there was a substantial risk of the child being sexually abused. (§ 300, subd. (d).) The juvenile court did not find true the allegation that there was a substantial risk that the three boys would be abused or neglected because B.S. had been abused or neglected. (§ 300, subd. (j).)
Based upon the true findings on the section 300, subdivisions (b) and (d) allegations, the juvenile court declared B.S. and the three boys dependents of the juvenile court. The juvenile court ordered that Father have sole physical custody of B.S., but legal custody would be shared between Mother and Father. In regard to the three boys, the juvenile court ordered that they be placed in Mother’s and Stepfather’s home, but continue to be supervised by the Department’s social worker.
DISCUSSION
We begin our analysis by addressing Stepfather’s contentions, then we analyze the issues presented by Mother, and finally we discuss the arguments presented by the amici.
A. STEPFATHER
1. STANDING AND MOOTNESS
At the threshold, we address the Department’s procedural concerns related to Stepfather’s contentions. The Department asserts that Stepfather does not have standing to challenge the orders related to B.S., because he is not B.S.’s parent, and Stepfather’s appeal concerning the three boys is moot, because the dependency action related to the boys has been terminated. In sum, the Department is asserting that Stepfather’s appeal should effectively be dismissed on the combined grounds of mootness and lack of standing. We disagree.
For the sake of judicial efficiency, and because Stepfather has standing to challenge the juvenile court’s orders related to the three boys, we will assume (without deciding) that Stepfather has standing to appeal the orders related to B.S. (See In re Joel H. (1993) 19 Cal.App.4th 1185, 1196 [stepparent has de facto parent standing]; see also Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 754 [same]; see also Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035 [granting standing in a dependency matter].)
As to mootness, “[a]n appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. [Citation.] However, a reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review. [Citations.] We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.)
On February 23, 2010, the Department requested that this court take judicial notice of a juvenile court minute order dated February 18, 2010. We grant the request. (Evid. Code, § 452, subd. (d).) The juvenile court minute order reflects that the dependency case concerning the three boys was terminated on February 18, 2008, and the three boys were placed in the care and custody of Mother and Stepfather. In Stepfather’s opening brief, he requested that this court terminate the dependency proceedings for the three boys, and place them in Mother’s and Stepfather’s custody. The dependency proceedings for the three boys have already been terminated, and therefore, this court cannot grant Stepfather effective relief in regard to the three boys. However, the allegations against Stepfather greatly affect the dependency action against Mother, which involves B.S.
The Department alleged that Mother failed to protect the children from Stepfather’s physical and sexual abuse. (§ 300, subds. (b) & (d).) The juvenile court declared the children dependents of the court based, in part, upon Mother minimizing B.S.’s allegations of sexual abuse, and failing to protect the children from Stepfather. Consequently, because Mother’s case is based upon her reactions to Stepfather’s physical and sexual abuse, we conclude that Stepfather’s contentions could affect the outcome in Mother’s case. For example, if the juvenile court made an error in the finding related to the sexual abuse, then the finding that Mother failed to protect B.S. could also be affected. Accordingly, we will address the issues raised by Stepfather, because (1) they could affect Mother’s dependency case; and (2) the issues would otherwise evade review.
2. DEFENSE
a) Facts
The petition filed against Mother and Stepfather alleged the following: B.S. “has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in subdivision (b) of section 11165.1 of the Penal Code, by his or her parent or guardian or a member of the child’s household.” More specifically, the petition alleged, Stepfather “sexually abused the twelve-year-old child, [B.S.], [including] but not limited to, hugging her while she is naked and brushing her hair while she is wearing no shirt or bra.”
After the close of evidence, but before argument, the juvenile court said, “Just for the sake of maybe limiting the arguments a little bit from the counsel, much has been made, including [Mother’s attorney’s] attempt to file a brief, [in] reference to sexual abuse and the definition of sexual abuse as is required to be proved under [section] 300[, subdivision ](d) of the Welfare and Institutions Code. Reference has been made to section 11165.1 of the Penal Code, which lists a laundry list of physical contacts that would qualify as sexual abuse as well as numerous Penal Code violations in that same section. [¶] For the sake of argument, the Court considers the only applicable possible Penal Code section that would apply in this case would be that of [section] 647.6 of the Penal Code[, ] to molest or annoy a child under the age of 18.”
b) Analysis
Stepfather asserts that in the Department’s jurisdiction/disposition report, the Department alleged that Stepfather sexually abused B.S., per the definition of “sexual abuse” set forth in Penal Code section 11165.1. After the close of evidence, the juvenile court found that the applicable Penal Code section was 647.6, which concerns the crime of annoying or molesting a child under the age of 18. Consequently, Stepfather contends that the juvenile court changed the elements of the allegations against him after the close of evidence, which constitutes a violation of due process. We disagree.
We infer that Stepfather intended to refer to the Department’s petition, rather than the Department’s report.
The issue of whether the juvenile court violated Stepfather’s due process rights is a question of law that we review de novo. (In re Conservatorship of Person of Tian L. (2007) 149 Cal.App.4th 1022, 1028.)
“‘“[N]otice of the allegations upon which the deprivation of custody is predicated is fundamental to due process. [Citations.] Accordingly, a parent must be given notice of the specific factual allegations against him or her with sufficient particularity to permit him or her to properly meet the charge.”’ [Citation.] ‘In the initial “pleading” stage, the role of the petition is to provide “meaningful notice” that must “adequately communicate” social worker concerns to the parent. [Citation.]’”’” (In re S.O. (2002) 103 Cal.App.4th 453, 460.)
The allegations against Stepfather included a citation to Penal Code section 11165.1, subdivision (b) which describes a variety of conduct that qualifies as sexual assault. For example, the first portion of Penal Code section 11165.1, subdivision (b), provides, “Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following: (1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen. [¶] (2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.”
Penal Code section 11165.1, subdivision (a), provides, sexual abuse “means conduct in violation of one or more of the following sections:... [Penal Code section] 647.6 (child molestation).”
Penal Code section 11165.1, subdivisions (a) and (b), in their entirety, provide:
Our review of the law and the petition reflect that the Department alleged that B.S. was sexually abused as defined in section 11165.1, subdivision (b) of the Penal Code. However, section 11165.1, subdivision (b) of the Penal Code only provides a partial illustration of the conduct that qualifies as sexual abuse/assault, because the subdivision reads, “Conduct described as ‘sexual assault’ includes, but is not limited to.” When determining what other conduct might qualify as sexual assault, a reasonable person would likely look to the definition of sexual assault provided in Penal Code section 11165.1, subdivision (a). Penal Code section 11165.1, subdivision (a), expressly incorporates Penal Code section 647.6 into the definition of sexual assault. Accordingly, Stepfather was given meaningful notice of the allegations against him, because Penal Code section 647.6 is included in the definition of sexual assault. It may have been preferable for the Department to cite Penal Code section 11165.1 generally, rather than specifically mention subdivision (b); however, the citation to the specific subdivision was not misleading, since (1) subdivision (b) explicitly provides that the definition of sexual assault is not limited to the conduct described within the subdivision; and (2) subdivision (a) expressly incorporates Penal Code section 647.6. In sum, we conclude that Stepfather’s due process rights were not violated because he was given meaningful notice of the allegations against him.
3. DEFINITION OF SEXUAL ABUSE
Stepfather contends that the Department employed its own definition of sexual abuse when preparing its reports, and the Department’s definition is different than the definition provided in Penal Code section 11165.1. Stepfather contends, “The solution is for this [c]ourt to hold that in this case, the definition of ‘sexual abuse’ used by the Department come from the Penal Code and that [Mother and Stepfather] and their attorneys be advised of it no later than when the detention report is prepared.” We conclude that the Department and juvenile court employed the definition of sexual abuse provided in the Penal Code.
Whether the juvenile court applied the correct legal standard is an issue that we review de novo. (Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1107.)
Our review of the record reflects that the Department’s petition alleged that B.S. was sexually abused, as “defined in subdivision (b) of section 11165.1 of the Penal Code.” The definition of sexual abuse includes child molestation (Pen. Code, § 647.6). (Pen. Code, § 11165.1, subd. (a).) Child molestation requires proof that a person who is motivated by unnatural or abnormal sexual interest in children annoys or molests a child. (Pen. Code, § 647.6, subd. (a); People v. McFarland (2000) 78 Cal.App.4th 489, 495.)
When the juvenile court made its finding on the sexual abuse allegation, it said that B.S. is “a developing 12-year-old” and “standing naked in front of an adult man was conduct that was not a natural situation.” The juvenile court found that the evidence of Stepfather (1) drying B.S.’s hair while she was bare-chested, and (2) hugging B.S. while she was naked, “points in a direction that this was not just a naïve failure to recognize a boundary; that there was something more than that going on.” Based upon the juvenile court’s comment that looking at B.S. naked was “not a natural situation, ” we infer that the juvenile court found that Stepfather’s conduct was motivated by unnatural or abnormal sexual interest in children. (Pen. Code, § 647.6, subd. (a).) The foregoing evidence relied upon by the juvenile court was presented by the Department. Consequently, it appears from the record that the Department and the juvenile court employed the Penal Code definition of sexual abuse. (Pen. Code, §§ 11165.1, 647.6.)
4. EVIDENCE
At the threshold, we find the parameters of Stepfather’s evidence contentions to be unclear. Accordingly, at the beginning of each section, we have set forth quotes from Stepfather’s briefs, and then our interpretations of Stepfather’s contentions. (See People v. Mills (2010) 48 Cal.4th 158, 175 [similar process].) In the following subsections, we are working with the assumption that Stepfather contends that the juvenile court, not the Department, made a variety of errors related to evidence at the contested hearing.
We review the juvenile court’s decision to admit or exclude evidence under the abuse of discretion standard of review. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.)
a) Expert Witness
Stepfather contends that expert testimony is required to prove that Stepfather “represented an actual likelihood of causing ‘sexual abuse’ or ‘domestic violence.’” We infer that Stepfather is asserting that expert testimony is required to prove that “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.” (§ 300, subd. (b).) We disagree.
“[E]xpert witnesses are appointed only where ‘expert evidence is or may be required...’ (Evid. Code, § 730), and their testimony is limited to ‘a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....’ (Evid. Code, § 801, subd. (a).) Because the matter to be determined at the jurisdictional hearing is whether a child is at substantial risk of harm at the hands of a parent, due to parental acts or inaction, if that assessment can be made within ordinary experience, no expert is necessary.” (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202, fn. omitted.)
The juvenile court based the “substantial risk” finding on the domestic violence evidence. At the hearing, the Department submitted on its (1) detention report filed May 1, 2009; (2) jurisdiction report filed May 20, 2009; and (3) addendum report filed June 15, 2009. The jurisdiction report reflects the following: On March 4, 2009, Mother was concerned that Stepfather was having an affair. Stepfather became angry at Mother. Stepfather threw a remote control at Mother, but missed, and the remote caused a hole in the wall. Stepfather threw a second remote control at Mother, which hit Mother’s elbow. Mother cried out in pain. J.C. asked, “‘Why are you hitting Mommy?’” Stepfather said to Mother, “‘If you call the cops and ruin my career or hers, I swear I will fucking kill you.’” Two days later, Mother spoke to the police and retracted most of her allegations.
B.S. said that on March 4 she heard Mother screaming, and Mother told B.S. to get her half-brothers and take them out of the house. Mother, B.S., and the three boys then drove to the house of one of B.S.’s friends. While on the way to the house, Mother spoke on the telephone, and said, “‘ [H]e threw a remote at me and I think my elbow is broken. Can we come to your house?’” While in the car, Mother was crying and the three boys “‘were freaking out.’”
B.C. told the social worker that Stepfather threw a remote control at Mother, but it did not hit her. B.C. said, “‘He threw it at the wall and then downstairs.’” B.C. also said, “‘Don’t tell my dad he threw the remote because it will make him sad. It will make him mad.’”
The social worker asked J.C. what happens when Mother and Stepfather are mad at one another. J.C. responded, “‘They don’t fight!’” The social worker asked J.C. why the police came to his house. J.C. said that Stepfather threw a remote control at the wall and Mother “‘hit her elbow on the stairs.’” The social worker asked if J.C. saw Mother hit her elbow on the railing. J.C. became quiet. The social worker asked J.C. how Mother actually hurt her elbow. J.C. said that Stepfather “‘threw the blue one at her and it hit her arm.’” J.C. said he saw the remote hit Mother, and both he and Mother cried.
The foregoing evidence can be assessed for the element of “substantial risk” without an expert opinion. Making death threats and throwing objects at a spouse, in front of a three-year-old child, are acts that a lay person can perceive as harmful. (See Laurie S. v. Superior Court, supra, 26 Cal.App.4th at p. 202 [similar conclusion].) Minimizing the violence is also an act that a lay person can perceive as harmful. An expert might have insight into Stepfather’s and Mother’s psyches; however, whether Stepfather and Mother pose a danger to the children can be evaluated by the court without an expert. (Ibid.) Accordingly, we conclude that expert testimony was not required.
Stepfather contends “this [c]ourt should not and cannot rely on mere conjecture or the ‘feelings’ of the Department.” We infer that Stepfather is asserting that the juvenile court cannot rely on speculative evidence that Stepfather poses a risk to the children. When the juvenile court found that domestic violence occurred in the home, the court cited the police report related to the March 4 incident. When the court found that Mother minimized the violent acts, the court cited information provided in the Department’s reports and the police report. Accordingly, the juvenile court’s assessment that Mother and Stepfather posed a substantial risk to the children was not based on speculation; rather, it was based on an assessment of the evidence presented. Consequently, we find Stepfather’s argument unpersuasive.
2. The Department’s Reports
Stepfather contends that it is “indisputable” that the Department’s reports “were admitted without foundation, with hearsay throughout, and without any corroboration.” Stepfather also asserts that a social worker testified that notes, memoranda and statements, which corroborate events documented in the Department’s reports, were destroyed. Stepfather asserts that these destroyed items are “needed in trial for due process.” Stepfather contends “that this was and must be reversible error.” We infer that Stepfather is contending that the juvenile court erred by not granting Mother’s motion in limine to exclude the Department’s reports because the reports (1) lacked foundation; (2) contained hearsay; and (3) were not authenticated. ,
Mother submitted motions in limine. At the contested hearing, Father’s attorney informed the juvenile court that Father joined in all of the objections raised by Mother.
It is unclear whether Stepfather is asserting that the complete reports should have been excluded on hearsay grounds, or a portion of the reports. In his opening brief, Stepfather writes that statements of B.S.’s friends, who B.S. had spoken to about the sexual abuse, should not have been admitted. At the juvenile court, Mother’s attorney objected to the items attached to the Department’s reports, such as the police report documenting the domestic violence. Consequently, it is unclear exactly which portion of the reports Stepfather is contending should have been excluded. Nevertheless, we will try to address the issue of hearsay in the Department’s reports.
i) Hearsay
“A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction... may be based....” (§ 355, subd. (b).) However, the preparer of the social study must be made available for cross-examination upon a timely request by any party. (§ 355, subd. (b)(2).) Additionally, if a party raises a timely objection to the admission of specific hearsay evidence contained in a social study, then the specific hearsay evidence will not be sufficient by itself to support a jurisdictional finding, unless the petitioner establishes (1) the hearsay would be admissible in a civil or criminal proceeding; (2) the hearsay declarant is under the age of 12 years and is the subject of the jurisdictional hearing; (3) the hearsay declarant is a peace officer, a social worker, or a teacher; or (4) the hearsay declarant is available for cross-examination. (§ 355, subd. (c)(1).) A “timely objection” means the objection “identifies with reasonable specificity the disputed hearsay evidence and it gives the petitioner a reasonable period of time to meet the objection prior to a contested hearing.” (§ 355, subd. (c)(2).)
In a written motion in limine Mother objected to “any portions [of the Department’s reports] that are not supported by witness testimony from the actual preparer and actually corroborated. If a witness is unavailable for cross-examination, then those portions of the report which are unsupported by testimony” should not be admitted.
Mother’s motions in limine were filed on Friday, June 19, 2009. The contested jurisdiction/disposition hearing took place on Monday, June 22, 2009. The juvenile court was within its discretion to deny the motion based upon the timing of the motion, because Mother gave the Department only one weekend to meet the objections, which could rationally be found to not be “a reasonable period of time to meet the objection prior to [the] contested hearing.” (§ 355, subd. (c)(2).)
Further, the objections raised needed to be to “specific hearsay evidence.” (§ 355, subd. (c)(1).) In Mother’s motion in limine she objected to “any portions” of the Department’s reports that constituted hearsay. The juvenile court was within its discretion to deny the motion based upon the lack of specificity.
In the motion in limine, in a separate objection, Mother objected to the Department’s reports based on “hearsay as to attachments or other hearsay content.” The juvenile court was also within its discretion to deny the foregoing objection due to the lack of specificity.
In sum, the juvenile court was within its discretion to deny the hearsay objections because they were untimely and not specific.
ii) Lack of Foundation & Authentication
Stepfather contends that the Department was required to give him “a full opportunity to cross-examine witnesses and to have more than just the reports admitted at face value.” Stepfather complains that the juvenile court “shut down” his attorney when she was questioning a witness. It is unclear from Stepfather’s argument whether he is contending that the Department erred or the juvenile court erred. (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 [appellants must raise coherent arguments]; Cal. Rules of Court, rule 8.204(a)(1)(B).) Nevertheless, we will assume that Stepfather is contending that the juvenile court erred by admitting the Department’s reports because the reports lacked foundation and were not authenticated.
As set forth ante, section 355, subdivision (b)(2) provides that a social study prepared by the petitioning agency is admissible at a jurisdiction hearing, if the person who prepared the study is available for cross-examination upon a timely request by any party. At the start of the jurisdiction/disposition hearing, the Department’s attorney said to the juvenile court, “We do have the social workers available for cross-examination as the parties have indicated.” The record reflects that the Department employee who prepared the detention report testified at the hearing and was cross-examined. Additionally, the Department employee who prepared the jurisdiction report and the addendum report testified at the hearing and was cross-examined. Accordingly, we are not persuaded that the juvenile court erred by admitting the reports due to a lack of foundation or authentication, because the statutory requirements for admitting the reports were satisfied.
c) Advice of Counsel
Stepfather contends that the juvenile court erred by “accepting the Department’s proposition that [Stepfather’s] reliance on legal counsel is grounds for a finding of ‘failure to cooperate.’” Stepfather cites Evidence Code section 1228.1 in his argument. We infer that Stepfather is contending that his juvenile court counsel, or perhaps his criminal counsel for the domestic violence case, advised Stepfather not to speak to the Department; therefore, Stepfather had good cause for not cooperating in his case plan; and the juvenile court erred by concluding that Stepfather did not have good cause for failing to cooperate. (Evid. Code, § 1228.1, subd. (b).)
Evidence Code section 1228.1, subdivision (b) provides: “A parent’s or guardian’s failure to cooperate, except for good cause, in the provision of services specified in the child welfare services case plan may be used as evidence, if relevant, ... at any jurisdictional or dispositional hearing....”
When the juvenile court issued its disposition order, it wrote: “This court finds that there certainly is evidence that attempts were made to minimize the domestic violence and that the parents have been resistant to the involvement of [the Department] since the beginning of this case.” Further, the court wrote, Mother and Stepfather “have indicated their refusals to sign information releases w[ere] a result of attorney advice, but that they are full[y] willing to do so now.” The juvenile court cited a variety of other evidence regarding the domestic violence incident, and concluded, “[b]ased upon this I cannot find, certainly by clear and convincing evidence, that there is a threat of future domestic violence, such that the situation requires the boys to remain out of the home in order to protect them, while services are being provided to help the parents overcome the problems which led to the initial removal.”
Our review of the juvenile court’s ruling reflects that the court found Mother and Stepfather were not cooperating with the Department due to advice from an attorney. The juvenile court did not find a lack of good cause for failing to cooperate; rather, the juvenile court returned the three boys to Mother’s and Stepfather’s care and ordered more services, which indicates that the court did find good cause for Mother’s and Stepfather’s refusal to cooperate with the Department. In sum, we are unable to find the alleged error in the record, i.e., the juvenile court’s finding that Stepfather did not have good cause for not cooperating.
5. MOTIONS IN LIMINE
Stepfather contends that the juvenile court erred by denying various motions in limine related to (1) excluding hearsay evidence; (2) striking the sexual abuse allegations; (3) striking untimely Department reports; and (4) appointing an educational/IEP professional. We disagree with the contentions.
a) Hearsay
Stepfather contends that the juvenile court erred by denying Mother’s motion in limine to strike any portion of the Department’s reports “that were not supported by witness testimony from the actual preparer and actually corroborated.” We have addressed this issue ante, when discussing Stepfather’s Evidence Code contentions, and concluded that the juvenile court did not err by denying the motion in limine. Accordingly, we decline to address the issue again.
b) Sexual Abuse Allegation
Stepfather contends that the Department’s reports did “not allege any single violation of ‘sexual abuse’ as specifically defined by [the Penal] Code.” Therefore, Stepfather asserts that the juvenile court erred by not striking the sexual abuse allegations. We disagree.
It appears that Stepfather is contending that the juvenile court should have granted a demurrer or a motion for judgment on the pleadings, because he is asserting that the petition did not set forth a cause of action for sexual abuse. (Rice v. Center Point, Inc. (2007) 154 Cal.App.4th 949, 954 [discussing demurrers].) Accordingly, we apply the standard of review that we apply to demurrers, which is the de novo standard. (Ibid.)
The petition alleged that B.S. was sexually abused per the definition of sexual abuse provided in Penal Code section 11165.1, subdivision (b). As discussed ante, subdivision (b) explicitly reflects that “sexual assault” is not limited to the conduct described within the subdivision. Penal Code section 11165.1, subdivision (a), defines sexual assault as including child molestation. (Pen. Code, § 647.6.) Child molestation means that a person engages in conduct with a child that is motivated by an unnatural or abnormal sexual interest in children. (Pen. Code, § 647.6, subd. (a); People v. McFarland, supra, 78 Cal.App.4th at p. 495.)
The petition alleged that Stepfather “sexually abused the twelve-year-old child, [B.S.], to include but not limited to, hugging her while she is naked and brushing her hair while she is wearing no shirt or bra.” The Department’s jurisdiction/disposition report reflects that B.S. disclosed that Stepfather hugged her while she was getting dressed or showering, which made B.S. “feel ‘weird.’” The Department’s detention report reflects that B.S. told the Department social worker that Stepfather opened the bathroom door while B.S. was naked and hugged her, which made B.S. feel “‘uncomfortable.’” B.S. cried while talking to the social worker. B.S. also told the social worker that Stepfather dries her hair while she is topless.
Based upon the foregoing reports and petition, we conclude that the Department alleged that Stepfather engaged in conduct with B.S. that was motivated by an unnatural or abnormal sexual interest in children. (Pen. Code, § 647.6, subd. (a); People v. McFarland, supra, 78 Cal.App.4th at p. 495.) Accordingly, the juvenile court did not err by not striking the sexual abuse allegations.
c) Untimely Reports
Stepfather contends that the Department’s addendum report was not provided to the parties until June 15, 2009, which was not a reasonable time prior to the June 22, 2009, jurisdiction/disposition hearing. Stepfather contends that the addendum report should have been stricken in its entirety.
We review the juvenile court’s decision to admit or exclude evidence under the abuse of discretion standard of review. (Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at p. 885.)
Section 355, subdivision (b)(3), provides, “The court may grant a reasonable continuance not to exceed 10 days upon request by any party if the social study is not provided to the parties or their counsel within a reasonable time before the hearing.” The local rules of court require that a social study be “filed and served no later than 12:00 noon at least three (3) judicial days before any hearing.” (Super. Ct. Riverside County, Local Rules, rule 12.0080.)
Stepfather contends that addendum report was served on Monday, June 15. The hearing occurred on Monday, June 22. Accordingly, the addendum report was served more than three judicial days before the hearing; and therefore, it was served a reasonable time before the hearing. Further, if the report was not served within a reasonable time frame, the remedy would have been to continue the hearing, not strike the report.
d) IEP Professional
Stepfather contends that T.C. has an Individual Education Plan (IEP), and the juvenile court erred by (1) not appointing an IEP professional, and/or (2) not giving notice of the proceedings to an IEP professional, to insure that the juvenile court’s orders do not interfere with the IEP.
The foregoing contention does not appear to involve disputed facts, because the parties agree that an IEP professional was not appointed. Accordingly, we treat it as a question of law and apply the de novo standard of review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
Stepfather’s argument relies on section 319, subdivision (g), which provides that the juvenile “court may temporarily limit the right of the parent or guardian to make educational decisions for the child and temporarily appoint a responsible adult to made educational decisions for the child” if a variety of circumstances are found to exist.
The juvenile court’s disposition order required that T.C. be returned to Mother’s and Stepfather’s custody, under the supervision of the Department’s social worker. The juvenile court also approved the Department’s case plan. The case plan concerning T.C.’s education provides, T.C. “will continue to receive special education services. He has an active IEP.” Accordingly, the record does not reflect the juvenile court ordered that Mother’s and Stepfather’s rights to make educational decisions for T.C. be limited. Rather, the record reflects that the court approved the plan of T.C. continuing with his IEP. Consequently, we are not persuaded that the juvenile court erred.
6. CONCLUSION
In sum, we are not persuaded by Stepfather’s contentions, and we affirm the orders related to Stepfather.
Stepfather requested that this court take judicial notice of (1) the child abuse central index listing; (2) request for a grievance hearing; (3) Bureau of Criminal Information and Analysis, child protection program letter; (4) request for Live Scan service; (5) letter of rejection for employment from the El Centro Police Department; and (6) letter of rejection for employment from the Desert Hot Springs Police Department. (Evid. Code, §§ 451, 452.) We deny the request for judicial notice because (1) Stepfather does not cite any authority which would permit us to take judicial notice of such documents; and (2) the documents are not necessary to our resolution of the issues presented.
B. MOTHER
1. IMMUNITY
Mother contends that the juvenile court erred “to the extent that Judicial Council Form JV-190 (advisement forms) were not on file, [advising Mother] of the right to use immunity.” Mother asserts that she requested “use immunity” but the request was denied. Mother’s argument concludes, “[T]he initial burden of the Department was never met and there was no expert testimony, as required by law, to meet the evidentiary standards applicable in this case.” Based upon Mother’s argument, it is unclear if she is concerned with the advisement of her rights, or if she is concerned with a possible lack of substantial evidence. However, because the heading of the argument includes the phrase “immunity privilege, ” we will assume that Mother is concerned with the advisement of her rights. We disagree that the juvenile court erred.
The Department does not dispute the facts set forth by Mother regarding the immunity advisement. Accordingly, because the facts are undisputed, we review this issue de novo. (Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1481.)
“If a person is called as a witness and it appears to the court that the testimony or other evidence being sought may tend to incriminate the witness, [then] the court must advise the witness of the privilege against self-incrimination and of the possible consequences of testifying.” (Cal. Rules of Court, rule 5.548(a); see also In re Candida S. (1992) 7 Cal.App.4th 1240, 1250.)
Mother testified after the juvenile court issued its jurisdictional findings, but before the court issued its disposition orders. In her opening brief, Mother writes that she requested immunity, but the juvenile court ignored the request. Mother does not cite to the record to direct this court to her alleged request for immunity, or the juvenile court’s alleged act of ignoring her request. (Cal. Rules of Court, rule 8.204(a)(1)(C) [citations to the record].) Further, Mother does not inform this court of the incriminating question(s) posed to her that would cause any legal error in the failure to grant her immunity. Stated differently, Mother does not explain why she needed immunity or how the lack of immunity prejudicially impacted her. (In re S.C. (2006) 138 Cal.App.4th 396, 407 [party must establish prejudice].) Because Mother has not shown (1) where the alleged error is in the record, and (2) the prejudice resulting from the alleged error, we do not find her argument persuasive. (See In re Angelique C. (2003) 113 Cal.App.4th 509, 523 [similar conclusion]; In re Monique T. (1992) 2 Cal.App.4th 1372, 1378-1379 [same].)
2. CONFESSION DILEMMA
Mother contends that if a parent is falsely accused of sexual abuse, and the parent denies the sexual abuse allegations made by the Department, then the denial is used against the parent in dependency proceedings. In other words, Mother contends that the juvenile court created what has been dubbed a “confession dilemma.”
The concept of a “confession dilemma” was discussed by the appellate court in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752-1754 . When discussing the term, the court wrote, “Yet the very fact that [the mother and father] have continually denied that [the father] is a child molester is now asserted by the social services agency as evidence supporting the detriment finding.” (Id. at p. 1752.) The appellate court concluded, “[I]t cannot be denied that it is an outrageous injustice to use the fact [that] parents deny they have committed a horrible act as proof that they did it.” (Id. at pp. 1752-1753.)
Mother’s appellant’s opening brief does not cite to any portion of the reporter’s transcript to support her assertion that she was placed in a “confession dilemma.” The record reflects that the juvenile court based its finding-that B.S. had been sexually abused-on B.S.’s testimony and the Department’s reports. In other words, our review of the record does not reveal that the juvenile court relied on Mother’s denial of the sexual abuse allegations as evidence that the sexual abuse occurred. Accordingly, we find Mother’s argument unpersuasive.
3. EXPERT TESTIMONY
Mother contends that it is “disconcerting that no Court-appointed attorney in this matter sought the appointment of an expert witness.” Mother contends that this court “cannot rely on mere conjecture or the ‘feelings’ of the Department.” We addressed the foregoing arguments within our discussion of Father’s contention related to expert testimony. We concluded that expert testimony was not required, and that the juvenile court did not rely on speculation or conjecture. We decline to address the arguments again.
4. DEPARTMENT REPORTS
Mother contends that the juvenile court erred by admitting the Department’s reports because they lacked foundation, contained hearsay, and were not authenticated. We addressed the foregoing arguments within our discussion of Father’s contention related to the Department’s reports. We concluded that the juvenile court did not abuse its discretion by admitting the reports. We decline to address the argument again.
5. MOTIONS IN LIMINE
Mother contends that the juvenile court erred by not granting her motions in limine related to (1) hearsay; (2) untimely reports; (3) the appointment of an IEP professional; (4) dismissing the case; and (5) striking the sexual abuse allegation.
We addressed the arguments related to (1) hearsay, (2) untimely reports, (3) the appointment of an IEP professional, and (4) striking the sexual abuse allegation within our discussion of Father’s contentions. We concluded that the juvenile court did not err. We decline to address the arguments again. Accordingly, we limit our discussion to Mother’s contention related to dismissing the case.
Under the heading “Judicial Notice of Actual Standards for Sexual Abuse Allegations, ” Mother contends that the juvenile court erred by not taking judicial notice of the fact that the Department “did not allege any single violation of ‘sexual abuse’ as specifically defined by the Code.” It appears that Mother was actually demurring to the sexual abuse allegation, rather than requesting judicial notice. Accordingly, we have interpreted her “judicial notice” contention to be the same as Stepfather’s contention, i.e., the juvenile court erred by not striking the sexual abuse allegation.
Mother asserts that her motion to dismiss the case should have been granted because the Department submitted on its reports and “[m]uch of the material brought up during the disposition was never properly before the Court.” Mother also contends, “A specific finding was also requested that the marriage of the parents, as bound by them both socially and through their religion, was not detrimental to the children.” Mother does not cite to the record or to legal authority to support her argument. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)
Mother does not explain why “the material brought up during the disposition” was improperly presented. Additionally, Mother does not explain how a finding concerning her marriage would have supported a motion to dismiss. In sum, we are unable to extract Mother’s argument from her briefs; and therefore, we cannot analyze Mother’s contention. (See Worsley v. Municipal Court (1981) 122 Cal.App.3d 409, 421 [similar predicament].)
6. APPELLANT’S REPLY BRIEF
a) Due Process
In Mother’s reply brief, she contends that the Department, on appeal, did not address her due process arguments. We did not find a due process argument in Mother’s opening brief. Mother contends that the due process issues raised in her opening brief “are plain and obvious”; however, she does not cite to her opening brief to direct the court to her due process arguments. Accordingly, we do not address the due process issues, because they appear to be raised for the first time in Mother’s reply brief. (People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30.)
b) Other Contentions
Further, in Mother’s reply brief, she complains that the Department failed to respond to a variety of other contentions raised in her appellant’s opening brief. In her reply brief, Mother cites to her appellant’s opening brief to support to her assertion that the various unaddressed arguments were raised in her opening brief. However, the portion of the opening brief cited by Mother, is the “Statement of Issues on Appeal” section, in which Mother listed 11 issues and “short answers.” For example, in the “Statement of Issues” section of her opening brief, Mother wrote: “8. Should Evidence of religious counseling, received by the parents, have been allowed for purposes of showing remediation of the problems thought to have justified a need for jurisdiction and detention? [¶] Short Answer: Yes. The law requires that all efforts be made by social services to avoid removal of a child. Where not specifically provided for, religious liberty suggests that the parents ought to be able to seek qualified faith-based help without undue interference by the State. In this case, the parents immediately sought counseling, therapy, and other services before the Department even took action to provide these services. However, because the Department and Court didn’t like the religious source of these remedial measures, they were ignored.”
Many of Mother’s “Issues on Appeal” do not include (1) explanations about how the juvenile court erred, or (2) citations to the record. Further, some of the “Issues on Appeal” were raised again in the “Discussion” section of the brief, such as the contention concerning expert testimony, while other issues, such as the foregoing religious counseling contention were not raised in the “Discussion” section. To the extent that Mother intended to raise on appeal all of the 11 issues set forth in the “Issues on Appeal” section, she needed to raise them under separate headings, and support each point with argument, citations to legal authority, and citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).) Mother’s failure to raise her contentions pursuant to the proper format is not a mere technical error. (In re S.C., supra, 138 Cal.App.4th at p. 408.) By ignoring the proper format, the Department apparently missed many of the arguments Mother intended to set forth, and this court cannot determine what “short answers” were intended to be asserted as arguments. In sum, Mother’s failure to follow the proper format, provide meaningful legal analysis, and record citations, amounts to a forfeiture of the claims of error. (Id. at p. 410.)
C. AMICI
1. STANDARD OF PROOF
Defendthechildren.org (DCO) and S.A.V.E. Kaylee (SAVE) contend that the juvenile court erred by applying the preponderance of the evidence standard, rather than the clear and convincing evidence standard, when making its disposition findings. We disagree.
Whether the juvenile court employed the correct legal standard is an issue that we review de novo. (Weinberg v. Cedars-Sinai Medical Center, supra, 119 Cal.App.4th at p. 1107.)
The law provides that “[a] dependent child may not be taken from the physical custody of his or her parents or guardian... unless the juvenile court finds clear and convincing evidence” that placing the child in the parents’ or guardian’s home would place the child at risk. (§ 361, subd. (c).) Accordingly, if a child is removed from his or her parent’s physical custody at the disposition hearing, then the clear and convincing standard of proof must be applied. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694; see also In re Angelia P. (1981) 28 Cal.3d 908, 919, 922.) This is a higher standard than the preponderance of the evidence standard, which is applied at jurisdictional hearings (§ 355, subd. (a)), and at dispositional hearings where the child is not removed from his or her parent’s physical custody (In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1210).
At the disposition hearing, after the close of evidence, but before argument, the juvenile court said, “Let me give you some guidance here for your arguments. This is a dispositional hearing. The question that exists before this Court is a question of whether the children should be adjudged dependent. I think really the relevant questions, from the standpoint of this court’s mind, are the [section] 361[, subdivision] (c) findings that need to be made, specifically, that by clear and convincing evidence there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home....”
The juvenile court made its jurisdictional findings by a preponderance of the evidence on July 1, 2009. The juvenile court issued its disposition ruling via a minute order on July 13, 2009. When ruling on B.S.’s placement, the juvenile court wrote, “[T]he court has previously determined by a preponderance of the evidence that [B.S.] had been or was at substantial risk of being sexually abused by a member of her house[h]old.” The juvenile court then set forth a variety of evidence, such as B.S. blaming herself for the dependency action and B.S.’s loyalty to Stepfather, and concluded, the court “cannot find that such placement [in Mother’s and Stepfather’s home] would [not] be detrimental to [B.S.]’s safety, protection or emotional well-being.”
When the juvenile court ruled on the placement of the three boys, it summarized the domestic violence evidence, and wrote, “I cannot find, certainly by clear and convincing evidence, that there is a threat of future domestic violence, such that the situation requires the boys to remain out of the home in order to protect them.”
It appears that the juvenile court’s reference to the preponderance of the evidence standard of proof, when discussing B.S.’s placement, was a summary of the court’s jurisdictional finding, because (1) the court twice mentioned the clear and convincing evidence standard of review; and (2) the court summarized the evidence supporting its dispositional ruling. Accordingly, it does not appear that the juvenile court relied on its “preponderance of the evidence” jurisdictional findings when making its disposition order, or that it was unaware that the clear and convincing evidence standard is applicable to disposition orders.
Additionally, when the juvenile court made its order regarding the three boys, who were not removed from Mother’s and Stepfather’s custody, it applied the higher clear and convincing standard. As noted ante, the clear and convincing standard is only required when a child is removed from his or her parents’ custody. Accordingly, it appears that the juvenile court was aware of the clear and convincing standard of proof that is required at disposition hearings, and the juvenile court was overly cautious by applying the higher standard to the finding related to the three boys. Therefore, it appears from the record that the juvenile court applied the clear and convincing standard of proof to its review of the evidence concerning B.S. and the three boys. In sum, we are not persuaded that the juvenile court erred by applying the incorrect standard of proof.
DCO and SAVE contend that if this court interprets the statutory scheme as not requiring the application of the clear and convincing evidence standard of proof at a disposition hearing, then we will cause California’s dependency proceedings to violate constitutional requirements. We have concluded that the juvenile court properly applied the clear and convincing evidence standard of proof. Consequently, we do not address this contention.
2. SUFFICIENCY OF THE EVIDENCE
DCO and SAVE contend that substantial evidence does not support the factual findings made at the jurisdiction and disposition hearings. We begin our analysis of this issue by addressing the factual findings made at the disposition hearing, because that hearing involved the higher standard of proof, i.e., clear and convincing evidence.
a) Disposition Hearing
DCO and SAVE contend that the finding that B.S. would be in substantial danger if placed in Mother’s and Stepfather’s home is not supported by clear and convincing evidence. We disagree.
We apply the substantial evidence standard of review to DCO and SAVE’s contention. In applying this standard, we must view the evidence in the light most favorable to the juvenile court’s findings, which requires resolving all conflicts in the evidence in favor of the juvenile court’s findings. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) “‘The testimony of a single witness is sufficient to uphold a judgment.’ [Citation.]” (In re S.A. (2010) 182 Cal.App.4th 1128, 1148.)
A dependent child may not be taken from her parent’s physical custody unless the juvenile court finds by clear and convincing evidence that (1) “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from” the parent’s custody; or (2) the minor “has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household... and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from... her parent. (§ 361, subd. (c)(1) & (4).)
At the jurisdiction/disposition hearing, the Department submitted on its reports. The Department’s detention report reflects that B.S. told the Department’s social worker that Stepfather opened the bathroom door while B.S. was naked and hugged B.S. B.S. said the hug made her feel “uncomfortable.” B.S. also said that Stepfather dried her hair while B.S. was topless. The social worker asked B.S. if Mother was aware that Stepfather dried her hair while she was topless, and B.S. said that Mother “‘would be mad at [B.S.]’” if she knew about it. B.S. cried while she spoke to the social worker and asked the social worker to “not say anything to anyone.” At the jurisdiction/disposition hearing, B.S. testified that Stepfather dried her hair while she was topless. B.S. testified that sometimes she would cross her arms over her chest, in an attempt to cover herself.
When the social worker informed Mother that Stepfather hugged B.S. while she was naked, and that B.S. felt uncomfortable, Mother cursed at the social worker and said that the allegation was “ridiculous.” At the disposition hearing, Mother was asked if she thought that the counseling sessions were helping her to “cope with the fact that maybe the towel drying was an inappropriate boundary that should have been drawn before? Is that an issue that’s being dealt with in counseling now?” Mother responded, “Yes.”
The detention report also reflects that Mother accused Stepfather of striking her with a remote control, but later recanted the story and claimed that she injured herself by striking her elbow on a railing. When Mother testified at the disposition hearing, she said, “I’m not denying that the incident took place. The incident took place, and we are dealing with it through counseling.... I’m not denying that we got in an escalated argument.” However, Mother also testified that she did not see domestic violence as an issue that she needed to address.
The foregoing evidence supports the finding that B.S. was sexually abused, because a trier of fact could reasonably infer that Stepfather’s hugging B.S., who was a developing 12 year old, while she was naked, and drying her hair while she was topless, were motivated by an unnatural or abnormal sexual interest in children. (Pen. Code, § 647.6, subd. (a).) Therefore, the evidence supports the finding that B.S. was sexually abused. (Welf. & Inst. Code, § 361, subd. (c)(4).) Further, Mother’s remark that B.S.’s allegations against Stepfather were “‘ridiculous’” and Mother’s recanting of her own domestic violence allegations, provide substantial evidence that “there are no reasonable means by which [B.S.] can be protected from further sexual abuse or a substantial risk of sexual abuse” without being removed from Mother’s and Stepfather’s home, because it does not appear that Mother will protect her children from Stepfather’s abusive acts. In sum, clear and convincing evidence supports the finding that it would be detrimental to B.S. to place her in Mother’s physical custody.
DCO and SAVE contend that substantial evidence does not support the juvenile court’s findings because “this family is a solid, loving family” and “[a] single incident of a family dispute between the parents does not rise to the level of clear and convincing evidence of risk of substantial physical harm or sexual abuse.” As set forth ante, the evidence reflects more than a single incident of domestic violence. The evidence reflects an incident of domestic violence, an incident of Stepfather hugging B.S. while she was naked, and multiple occasions of Stepfather drying B.S.’s hair while she was topless. Consequently, we find DCO and SAVE’s argument to be unpersuasive.
Next, DCO and SAVE contend that there was not substantial evidence that Stepfather presented a threat of future sexual abuse. The detention report reflects that B.S. told the social worker that Stepfather entered the bathroom, without knocking, and hugged B.S. while she was naked. The report also reflects that Stepfather dried B.S.’s hair while she was topless. The juvenile court found that Stepfather’s actions were motivated by an unnatural or abnormal sexual interest in children. (Pen. Code, §§ 11165.1, subd. (a), 647.6, subd. (a).) Given the finding that Stepfather has an unnatural or abnormal sexual interest in children, it is reasonable to infer that Stepfather poses a threat to B.S. if she is returned to the house. Consequently, we find DCO and SAVE’s argument unpersuasive.
b) Jurisdiction Hearing
DCO and SAVE contend that substantial evidence does not support the jurisdictional finding that B.S. was sexually abused or that there was a substantial risk of B.S. being sexually abused. We have concluded ante, that the Department’s reports and Mother’s testimony support a finding by clear and convincing evidence that B.S. was sexually abused, and that Stepfather presented a risk of future abuse. (Pen. Code, §§ 11165.1, subd. (a), 647.6, subd. (a).) Accordingly, we do not summarize the evidence again; however, we will address DCO and SAVE’s arguments.
DCO and SAVE contend that “[h]ugging is a gesture that shows support and affection, ” and B.S. “stuck only her head out of the cracked bathroom door” so that Stepfather was only able to hug her shoulders. When reviewing the record for substantial evidence, we must view the evidence in the light most favorable to the juvenile court’s findings. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The detention report reflects that B.S. told the social worker the following: B.S. was in the bathroom completely naked, and the bathroom door was closed. Stepfather opened the bathroom door without knocking. Stepfather entered the bathroom, told B.S. “not to take such a long shower” and “put his arm around her.” B.S. cried as she told the story and said that the hug made her feel “uncomfortable.” Accordingly, we do not find DCO and SAVE’s argument persuasive because it does not present the evidence in the light most favorable to the juvenile court’s findings.
Next, DCO and SAVE assert that only hearsay evidence supports the finding that B.S. felt “weird” or “uncomfortable” when Stepfather hugged her. As explained ante, the objections to the hearsay evidence were not specific and they were untimely; therefore, the juvenile court did not err by denying the motion to exclude the hearsay evidence. It is well established that hearsay evidence admitted at a hearing “is evidence sufficient to sustain a verdict or findings [citation].” (In re Ballard’s Estate (1962) 210 Cal.App.2d 799, 802.) Accordingly, we are not persuaded by DCO and SAVE’s argument because (1) the hearsay evidence was properly admitted, and (2) hearsay evidence can support the juvenile court’s findings.
DCO and SAVE contend that the juvenile court’s finding that Mother minimized Stepfather’s sexual abuse “does not add anything to the equation.” Contrary to DCO and SAVE’s position, the finding that Mother minimized Stepfather’s sexual abuse of B.S. supports the conclusion that “there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor” from Mother’s custody. (§ 361, subd. (c)(4).) In other words, Mother’s minimizing the sexual abuse left B.S. with little to no protection in the house, which supported the finding that B.S. needed to be removed from Mother’s physical custody in order to protect her from further abuse.
3. DEFINITION OF SEXUAL ABUSE
DCO and SAVE contend that drying the hair of a topless 12 year old and hugging a naked 12 year old do not satisfy the definition of sexual abuse in Penal Code section 11165.1, because the acts could “reasonably be construed to be normal caretaker responsibilities.” (Pen. Code, § 11165.1, subd. (b)(4).) We disagree.
It appears that DCO and SAVE are contending that the juvenile court made a legal error, by not interpreting “normal caretaker responsibilities” to include hugging a naked 12 year old and drying the hair of a topless 12 year old. Accordingly, we apply the de novo standard of review. (Ghirardo v. Antonioli, supra, 8 Cal.4th at p. 801.)
Penal Code section 11165.1, subdivision (b)(4) provides, “Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following: [¶]... [¶] The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.”
The juvenile court found that Stepfather’s actions of (1) drying B.S.’s hair while she was topless, and (2) hugging B.S. while she was naked, were motivated by an unnatural or abnormal sexual interest in children. (Pen. Code, §§ 11165.1, subd. (a), 647.6, subd. (a).) We have explained ante, that substantial evidence supports the juvenile court’s findings. Accordingly, we are not persuaded that Stepfather’s actions were merely “normal caretaker responsibilities”; rather, Stepfather’s actions were motivated by an abnormal sexual interest in children.
4. CONSTITUTIONAL RIGHTS
DCO and SAVE contend that the juvenile court’s decision to permanently deprive Mother of custody of B.S. violates Mother’s constitutional right to the care, custody, and companionship of her child. We disagree.
“A parent’s interest in the companionship, care, custody and management of [her] children is a compelling one, ranked among the most basic of civil rights. [Citation.] Likewise, natural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] The interests of the parent and the child, therefore, must be balanced.” (In re Marilyn H. (1993) 5 Cal.4th 295, 306.)
We begin our discussion of this contention with a correction to DCO and SAVE’s argument. The juvenile court did not permanently deprive Mother of physical custody of B.S. Rather, the juvenile court ordered (1) that Father have sole physical custody of B.S.; (2) that Mother have frequent visits with B.S., including overnight visits; and (3) that the dependency action concerning B.S. be terminated upon the filing of orders in the family court. If the dependency action continued, Mother would have received a status review hearing six months after the initial dispositional hearing. (§ 366.21, subd. (e).) At the six-month review hearing the juvenile court would have returned B.S. to Mother’s physical custody unless returning B.S. to Mother’s care would have created a substantial risk of detriment to B.S.’s safety. (§ 366.21, subd. (e).) Accordingly, we disagree that the juvenile court permanently deprived Mother of the care, custody, and companionship of her child.
Next, in regard to DCO and SAVE’s constitutional concerns, it is well settled that the primary objective of the California dependency system “is to ‘preserve and strengthen the minor’s family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare....’ [Citation.]” (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546.) In keeping with this focus, there is a statutory presumption, at all pre-permanency hearings, that the child will be returned to his or her parent’s custody. (Ibid.) Additionally, “there are ‘precise and demanding substantive and procedural requirements [that] the petitioning agency must have satisfied before it can propose termination [of parental rights that] are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents.’ (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.)” (Ibid.) The various safeguards built into the dependency system, combined with the focus on reunification, serve to protect parents’ constitutional rights. (Id. at p. 548; see also Cynthia D., at p. 256.)
In sum, we are not persuaded that the juvenile court violated Mother’s constitutional rights by depriving her of the custody, care, and companionship of B.S.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., RICHLI J.
“As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following:
“(a) ‘Sexual assault’ means conduct in violation of one or more of the following [Penal Code] sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (sexual penetration), or 647.6 (child molestation).
“(b) Conduct described as ‘sexual assault’ includes, but is not limited to, all of the following:
“(1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.
“(2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
“(3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.
“(4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.
“(5) The intentional masturbation of the perpetrator’s genitals in the presence of a child.”