Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J515-344C Susan Huguenor, Judge.
McCONNELL, P. J.
Dwayne I. appeals the order declaring his daughter, Jeanne I., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (j), based on his sexual abuse of her older half-sister. Dwayne contends we must reverse the order because substantial evidence of molestation is lacking under the doctrine of inherent improbability, based on inconsistencies in the details of the half-sister's disclosures of abuse and his physical condition after a motorcycle accident. Further, he asserts the evidence of risk of harm is insufficient based on the age differential between Jeanne and her half-sister when the molestation occurred. He also asserts a few of the court's evidentiary rulings violated his procedural due process rights and constitute structural error, requiring reversal per se. We conclude the inherent probability doctrine is inapplicable and substantial evidence supports the court's factual findings. Further, the correct standards of review for the evidentiary rulings are abuse of discretion and harmless error, and any arguable errors caused Dwayne no prejudice. We affirm the order.
Further statutory references are to the Welfare and Institutions Code except when otherwise specified.
In the record the father's first name is sometimes spelled Dewayne.
FACTUAL AND PROCEDURAL BACKGROUND
Prehearing Events
Jeanne was born in 2004 to Dwayne and his wife T.I. T.I. also has two teenage daughters, L.S., who was born in 1996, and J.A., who was born in 1993. The family has a lengthy referral history with child protective services.
Where necessary we use initials to protect the minor's identity. T.I. is also referred to as T.D. in the record.
In around August 2007 L.S. disclosed to J.A. that Dwayne had sexually molested her. J.A. wrote what L.S. told her in a journal. The journal states verbatim as if written by L.S.: "Then... he took his thing and put it in my private part in the bathroom and... he made me watch a little video about a fifteen year old girl and her dad doin some nasty thing I didn't want to see. Then he kept doin it when we moved here where we live now and keeps putting his finger in my private part. And won't stop. How I felt was hurt because I'm just a little kid and he makes me less like a humans thats one of the reasons I don't want to live here.... And over the summer he did it too but he stop. He's going to do it when I'm in school like when I come and I'm by myself. So mom please believe me.... Another point I... would like to bring up is that some of the bumps and bruises were not from me doin stuff but they were from Dwayne...."
Shortly after J.A. wrote the journal she and L.S. gave it to their mother. At the time, T.I. was separating from Dwayne and she was busy moving out of his home. She did not read the journal for about a month. When she finally read it she asked the girls if the information in it was true. J.A. said it was true and L.S. did not respond. T.I. did not discuss the matter further with L.S., and she did not report the matter to authorities or have L.S. examined by a physician. T.I. never saw Dwayne acting inappropriately toward L.S. and he denied the allegations. T.I. thought L.S. was lying because of "her past history of being untruthful."
In April 2008 L.S. went to live with her biological father, S.S., because of behavioral problems and difficulties in school. T.I. and Dwayne divorced around that time, but she allowed further contact between him and her daughters.
In March 2009 L.S. disclosed to her father that Dwayne had sexually molested her. L.S. was very specific in the details of the abuse. S.S. phoned T.I. and relayed the information, and she told him about the journal. T.I. minimized the situation. S.S. notified the San Diego County Health and Human Services Agency (the Agency). A criminal investigation of Dwayne was also commenced. He has a prior criminal history including spousal abuse, possession of a firearm, burglary, possible gang involvement, and sex with a 17-year-old girl.
During the pendency of the jurisdictional hearing, Dwayne was bound over for trial on a six-count criminal indictment after a preliminary hearing in which L.S. testified.
A report by the Agency states L.S. told a protective services worker that Dwayne sexually molested her between the ages of 10 and 11. She reported that one night Dwayne "woke me up, he made me watch a video of a grown man and his daughter having sex"; "[h]e was touching me on my butt and vagina" and "[t]hen he made me pull down my pants and he sticked his thing inside me"; "[i]n the family room he touched me ... on my butt and then he took me to the bathroom, put me on the sink and then he put his thing inside me like grown people do it;" "I started to bleed from the front I was feeling sad, white stuff came out of his thing when he pulled it out"; "[h]e then woke me up a few minutes later and he made me do it again;" and "[h]e made me sit on the edge of the tub and do it again, and then he told me to go back to sleep." She disclosed that he molested her another time "when I came home early and no one was home but him, " and "[t]hat day he came to my room, made me get on my knees and he got on his knees and put his thing in my butt." She also disclosed that on another occasion she refused Dwayne's order that she pull her pants down and she tried to run away, but he grabbed her and hit her with a belt. She said "this happened again 5 or 6 times."
A forensic interview of L.S. was conducted at Rady Children's Hospital (Children's Hospital). The report states L.S. "provided a history of multiple incidents of sexual abuse" by Dwayne. We quote the following from the report: "She reported the first incident occurred at age 10 and the last incident happened in March 2008, before moving in with her [biological] father. [L.S.] reported [Dwayne] put his 'thing' in her 'private part' and in her 'butt' on multiple occasions. She reported 'bleeding' from her private part and reported the abuse was painful. On one occasion 'white stuff' came out of his 'penis.' He also attempted to put a 'purple' thing, 'shaped' like a 'penis' inside her private part. She explained he would 'beat' her with his fist and the 'buckle' of a belt, which caused her head to bleed on one occasion. She reported he told her he would 'kill' her if she told anybody."
The report also states: "[L.S.] reported that most incidents occurred in her bedroom during the day, and nobody would be home. Once he took her into the bathroom at night to 'do it.' Then her mother woke up and [Dwayne] 'did it again' after her mother went back to sleep. On another occasion he attempted to molest her in the living room, while his son [from another relationship] was in her bedroom. He also showed her a video, on the computer, and told her it was a 'fifteen year old girl and her dad.' She explained they were having 'S.E.X.' She said that she saw the girl's private part in the video. [¶] [L.S.] explained that during the incidents, she would cry and try to scream, but he covered her mouth with his hand and told her to be quiet of he would hit her."
The examining physician at Children's Hospital found a "hymenal trans[e]ction that is completely not intact, " a finding "definitely consistent with blunt penetrating trauma." L.S. denied having had consensual sex.
According to another report by the Agency, in conjunction with the criminal investigation of Dwayne, police searched T.I.'s home and confiscated a "purple vibrator."
T.I. told the protective services worker she believed L.S. was lying about the sexual molestation. The Agency gave T.I. a safety plan that included obtaining a restraining order to keep Dwayne away from the children pending the investigation. She did not comply.
As a result, the Agency took Jeanne into protective custody. On May 7, 2009 it filed a petition on her behalf under section 300, subdivision (j). The amended petition alleged that in about January 2007 Dwayne sexually abused L.S.; there were medical findings consistent with sexual abuse; her mother did not believe any abuse occurred despite having read the journal, and she continued to allow contact between Dwayne and L.S.; and based on the abuse of L.S. and T.I.'s failure to protect, Jeanne was at risk of harm.
Dwayne asserts the Agency filed the petition "when [L.S.] began leveling allegations of past molestation." As discussed, L.S. brought the matter to her mother's attention in 2007.
Dwayne did not comply with the Agency's request that he take a drug test. He said he would test positive for marijuana as he had just used the drug. He claimed to have a medical marijuana card because of injuries he sustained in a motorcycle accident. Further, the Agency made several attempts to interview Dwayne and he refused. He would hang up the phone when someone from the Agency called him. The Agency offered him reunification services, including a referral for parent education, and he "interrupted and responded that he had completed a parenting class and did not want to have to take parenting again."
Hearing
A contested jurisdiction and disposition hearing was held over approximately 12 days between July 20 and September 30, 2009. Dwayne's defense theory was that L.S. was lying and he was physically incapable of doing what she alleged because he had severely injured his arm in a motorcycle accident and medication he took for resultant pain made him impotent. T.I. also took the position L.S. was lying.
The journal, the Agency's reports, and the report from Children's Hospital were admitted into evidence. In addition, the court heard the live testimony of several witnesses.
A. L.S.
L.S. testified as follows, in chambers and out of the presence of her mother and Dwayne. She was nine or 10 years old when Dwayne began sexually molesting her. The first incident was late at night when everyone else was asleep. Dwayne woke her up and showed her a video on the computer in the living room for a few minutes. The video was of a man and a female having sex. Dwayne told her the female was 15 years old, but she thought the female looked older, "[l]ike a woman." L.S. denied having previously seen a sex video or packaging for such a video.
L.S. testified that Dwayne then took her into the bathroom and "asked me to pull down my pants and then he put his private part inside me, " meaning his penis. She was sitting on the sink, and using both arms he "had to lift me to put me up there." She said she struggled and tried to push him off, but "he wouldn't let me." L.S. did not recall how she felt during the penetration. She said she heard her mother call her and ask where she was, and then "he got off, and I went back to my room."
L.S. also testified, "He got me up again and did it again, and then he let me go back to bed." The second time, Dwayne had her "sitting on the edge of the tub" with one leg of her pajama bottoms off. She recalled feeling pain and being upset, but she did not recall if she bled. She later testified Dwayne had vaginal sex with her about four or five more times and she bled two times. On one occasion he tried to insert something into her that was "purplish" and "shaped like a private part." She denied having previously seen the object.
Additionally, L.S. testified Dwayne put his private part in her "butt" on about seven occasions, with her on her hands and knees and him on his knees. She testified she tried to fight him, but, "[h]e hit me and threw me down, and he kept trying." He used both his hands to keep her from getting away, and he used one hand to hit her on the head and cover her mouth to keep her from screaming. She later testified she did not recall whether there was any actual anal penetration or pain.
Further, L.S. testified that more than once Dwayne told her that if she told anyone about his conduct he would kill her. Dwayne would hit her during these incidents when she struggled. He once struck her with a belt buckle on the back of her head, which caused her to bleed "a lot." She said the blood "was all over the back of my shirt" and she stopped the bleeding with a towel.
B. L.S.'s Examining Physician Premi Suresh
Dr. Suresh, a pediatrician with Children's Hospital, conducted a forensic examination of L.S. Dr. Suresh testified: "I found a transection of the hymen, which is basically an old finding. It's a healed finding which basically means that the hymen was discontinuous at the six o'clock position.... [T]here was an area [where] there was absence of hymen. Basically there was a complete cut through the hymen, but it wasn't a fresh cut. It was a healed injury." Further, Dr. Suresh testified the injury "would be caused by blunt penetrating trauma of some type. We have not seen this finding in just normal females. So this is one of the findings which is a fairly rare finding that when we do see it, we do know that there was some sort of blunt penetrating trauma." She explained the injury could be caused by "penile vaginal penetration, " "[p]enetration of the vaginal opening with another object, " or "[p]enetration by a finger." She also said she believed the injury would have caused some bleeding. She testified it was impossible to determine the date of the injury, and there could have been one or multiple events.
Additionally, Dr. Suresh testified L.S. had a normal anal examination, but that did not necessarily conflict with her disclosures. Dr. Suresh explained, "oftentimes when children have been sexually abused with anal involvement, we... don't see any physical findings. And the other thing is because I didn't examine her acutely or immediately after the event had occurred, those injuries have ample time to heal and can heal without any kind of scarring or anything that the examiner could pick up."
C. Dwayne's Treating Physician Louis Rosen
Dr. Rosen treated Dwayne after a July 2005 motorcycle accident. Dr. Rosen first saw Dwayne in late December 2005 "because of paralysis of his right arm." He testified the accident "severely injured the nerve tissue that supplies his arm with muscle control and feeling"; his arm "was considered a flail arm due to a brachial plexus injury." Dwayne's medical records showed that by May 2006 he had nerve grafting surgery in an effort to repair some of the nerve tissue, and by October 2006 he had had a "tendon transfer... with a goal of trying to restore some useful hand function."
Dr. Rosen noted in his records that in February 2007 "the most [Dwayne] was able to do is to move his right thumb basically and flex some of his fingers, " and in September 2007 "he was starting to use his hand just as a gross stabilizer." He had minimal shoulder or elbow control and "couldn't do any heavier activities with his right arm. He could use his right hand to assist in some things or possibly, ... hold something light... like... a utensil." At their last visit in October 2008, Dwayne had "some weak right hand function" and he had regained some ability to flex his elbow, but his right arm was "still pretty weak." In 2007 Dwayne would not have been able to lift a 50-pound object with his right hand or arm. Further, Dr. Rosen testified Dwayne took medications for chronic pain.
D. J.A.
As to L.S.'s truthfulness, her older sister J.A. testified she initially disbelieved the abuse allegations because when L.S. recounted them she mumbled and held her head down, behavior she displayed when she lied. On further reflection, however, J.A. believed L.S. J.A. testified, "but then I thought over it, and I thought how would a little kid know this stuff, know what little kids shouldn't know, and some teenagers don't even know."
As to Dwayne's injury, J.A. testified his right arm was immobile and in a sling, and when it was not in a sling "[i]t would just hang there." When he first came home from the hospital he could not move the limb, but after therapy he could move his right hand and "pick up stuff with the help of his left hand." She said, "He would use his left hand to move his right arm."
E. T. I.
T.I. testified she never saw any injury on L.S. that corresponded with her allegations against Dwayne. T.I. doubted L.S.'s story because she had previously lied on a number of occasions.
Regarding Dwayne's injury, T.I. testified that after he returned from the hospital they began having difficulties in their intimate relationship. She explained Dwayne was "just unable to keep it up to actually have sexual intercourse." At the time of their separation he "was still having that same problem." She and Dwayne, however, continued to have sexual intercourse after his accident, and after their divorce, on occasion. He could sustain an erection "[f]or a short period of time" or "a couple of minutes."
F. Protective Services Worker Abigail Joseph
Abigail Joseph, a protective services worker for the Agency, took over Jeanne's case in early May 2009. Joseph testified that in her experience it would be atypical for a child L.S.'s age to make false accusations of sexual molestation. Joseph testified that L.S.'s father told Joseph "she does not exhibit excessive lying behavior, other than what is sometimes typical for a child."
Joseph also testified she performed a safety assessment and concluded that leaving Jeanne in the home would create a "high" risk of harm. After T.I. learned of the abuse allegations she did not contact authorities or have L.S. examined by a physician. Rather, she continued a relationship with Dwayne and resisted the Agency's requests that she obtain a restraining order against him. T.I. reported "she was having difficulty not having [Dwayne] provide child care for her any longer after [the Agency] first [became] involved. [¶] She relies on him to take care of her." Joseph also testified that at four years of age Jeanne could not protect herself. Although Dwayne was incarcerated, Joseph had no idea when he may be released. Joseph was particularly concerned because Dwayne showed L.S. a pornographic movie and told her the actors were father and daughter.
Ruling
The court made a true finding under section 300, subdivision (j) by clear and convincing evidence, sustained the petition and declared Jeanne a dependent of the juvenile court based on Dwayne's sexual abuse of L.S. and T.I.'s failure to protect. The court determined L.S. "was a credible witness [and] any inconsistencies in her statements would have been due to the length of time since the incident, her age at the time of the incident and the trauma she was subjected to." The court elaborated: "[L.S. is] describing a rape and sodomy by a very large man at the time when she was a very small child. She is very slight in build, even now. Mother's demeanor during her testimony is unusual in terms of the lack of emotion that she demonstrated after listening to what has happened to her child. And I think that alone creates a substantial risk of abuse to Jeanne, the fact that she did very little in response to these allegations for such a long time and allowed all of her girls to continue to be exposed to someone who is a danger." The court placed Jeanne in the home of a relative and ordered the parents to participate in reunification services.
DISCUSSION
I
Sufficiency of the Evidence
A
Sexual Molestation
1
Dwayne challenges the sufficiency of the evidence to support the court's finding of sexual molestation. It is his burden to show the jurisdictional finding is unsupported by substantial evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved of on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
"Substantial evidence is evidence that is 'reasonable, credible, and of solid value'; such that a reasonable trier of fact could make such findings. [Citation.] [¶] It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] 'Issues of fact and credibility are questions for the trial court.' [Citations.] It is not an appellate court's function, in short, to redetermine the facts." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) 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." (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
2
Dwayne's theory is that substantial evidence of sexual molestation is lacking under the theory of inherent improbability. He cites Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492, which explains: " 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category [citation]. To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citations.]' " (Italics added.) That appellate courts rarely reject evidence the trial court found credible is "understandable when we see that for rejection it is required that the testimony be 'wholly unacceptable to reasonable minds' [citation]; 'unbelievable per se' [citation] such that 'no reasonable person could believe the testimony' [citation]." (Ibid.)
Dwayne relies on evidence L.S. has a history of lying and she did not like him for reasons unrelated to sexual abuse. That evidence, however, does not make her testimony of sexual abuse inherently improbable. Rather, it goes to the credibility of her testimony, and the court expressly found her testimony credible. "The testimony of a single witness is sufficient to uphold a judgment." (In re Sheila B., supra, 19 Cal.App.4th at p. 200.) The court observed L.S.'s demeanor first hand, and from the cold record we cannot second guess its credibility finding. Further, other evidence supports and corroborates her reports of sexual molestation, such as the forensic examination at Children's Hospital.
Dwayne also cites several discrepancies in the details of L.S.'s disclosures of sexual abuse. For instance, L.S. told an interviewer at Children's Hospital that the last incident of abuse was in March 2008, but about six months later she testified at the preliminary hearing in the criminal matter that the abuse stopped in June or July 2007. She told the protective services worker that Dwayne made her watch an adult video before he molested her, and she gave the same testimony at the hearing, but a month later at the preliminary hearing she testified that he molested her first and then made her watch the video. Neither the journal nor the Children's Hospital report mentions fellatio, but at the preliminary hearing L.S. testified he once forced her to put her mouth on his penis. Further, at the hearing she testified she had not seen the "purplish" item shaped "like a private part" until Dwayne tried to use it on her, but at the preliminary hearing she admitted she had seen the item earlier in a drawer in her mother's home.
We need not address other examples, because the discrepancies do not make L.S.'s disclosures of sexual molestation inherently improbable. In In re S.A. (2010) 182 Cal.App.4th 1128, this court recently held that inconsistencies and conflicts in a minor's testimony about the specific details of sexual molestation did not fall within the inherent probability doctrine. Rather, they went to the credibility and weight of the evidence, issues for the juvenile court's assessment. (Id. at p. 1149.) We explained that the father's counsel "thoroughly pointed out frailties in the Agency's evidence, " and "[u]nder the guise of inherent probability, [the father] invites us to usurp the juvenile court's fact-finding role, which we decline to do." (Id. at p. 1150.)
Here, likewise, the jurisdictional order is not subject to reversal based on some justifiable suspicion about the evidence. The court was well aware of the inconsistencies and conflicts in the evidence, and it attributed them to the passage of time, L.S.'s young age at the time of the abuse, and the trauma to which she was subjected. We defer to these factual findings. Contrary to Dwayne's assertion, the evidence was not "wholly unacceptable to reasonable minds" and "unbelievable per se." When the sexual abuse of a child is at issue, "it is to overall consistency that we look, not constancy with regard to each and every detail. 'What is most important is consistency regarding the core details of the experience. Consistency about peripheral details is less important.' " (Doe v. U.S. (7th Cir. 1992) 976 F.2d 1071, 1079, italics added.) L.S.'s various disclosures have basic consistencies, such as the incident when Dwayne woke her up at night, set her on the sink in the bathroom, and sexually molested her while the rest of the family slept. Further, her later disclosure of events not mentioned in the journal is not surprising as " 'it frequently takes a long time for children to share what is really going on and they may then do so in stages, telling a little more each time.' " (Ibid.)
Dwayne also claims the evidence was inherently improbable on the ground of physical impossibility since his motorcycle accident "left him virtually impotent and without the use of his right arm." T.I., however, testified that after the accident Dwayne could sustain an erection for a short duration and they were able to have sexual intercourse on occasion. Thus, it was not physically impossible for Dwayne to have sexually molested L.S. Further, the evidence shows he had some use of his right hand, and at the preliminary hearing in Dwayne's criminal case, L.S. testified that when he set her on the bathroom sink he lifted her around the waist with one hand in a bear hug motion. In this matter, the court noted Dwayne is a large man and L.S. is a small girl. Information in the record indicates he is six feet four inches tall and weighs about 275 pounds. From this record, we cannot say sexual molestation was a physical impossibility. Thus, the inherent improbability concept is inapplicable.
Dwayne's entire argument on the strength of the evidence of sexual molestation is premised on the notion of inherent improbability. He does not suggest that if we reject his argument the evidence is otherwise insufficient to support the order. We conclude substantial evidence, recited in the factual statement above, supports the court's finding.
B
Risk of Harm
Additionally, Dwayne challenges the sufficiency of the evidence to support the court's finding that the sexual abuse of L.S. and T.I.'s failure to protect puts Jeanne at risk of similar harm. Section 300, subdivision (j) authorizes the court to exercise jurisdiction when the "child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." As the predicate for Jeanne's petition under subdivision (j) of section 300, it cites subdivision (d), which pertains to sexual abuse as defined in Penal Code section 11165.1.
Subdivision (j) of section 300 also states: "The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child."
Dwayne asserts Jeanne is not at substantial risk of harm because the "allegation is that [he] sexually abused [L.S.] between the approximate ages of 10 and 11, " and "Jeanne is, by contrast, only six year[s] old." He relies exclusively on the following language from In re P.A. (2006) 144 Cal.App.4th 1339, 1347 (P.A.): "We are convinced that where, as here, a child has been sexually abused, any younger sibling who is approaching the age at which the child was abused, may be found to be at risk of sexual abuse." (Italics added.) Dwayne submits that since Jeanne is not approaching the age of 10 or 11, to show risk of harm the Agency was required to adduce "evidence that father has sexual interest in six-year-olds."
Jeanne is now actually five years old.
We reject Dwayne's argument. P.A. does not hold that to be at risk of sexual abuse a sibling must be approaching the age of the abused sibling. In P.A., the father sexually molested his daughter and the issue was whether the trial court erred by finding the sons were at risk of harm under subdivision (j) of section 300 "because they were approaching the age at which father had begun to abuse P.A. and father had access to the boys because he routinely awoke during the night to cover them." (P.A., supra, 144 Cal.App.4th at p. 1345.) The appellate court found no error. It affirmed the jurisdictional finding, rejecting the notion the sons were not at risk of sexual abuse under subdivision (d) of section 300 since there was no evidence the father was sexually interested in males. (Ibid.; accord In re Andy G. (2010) 183 Cal.App.4th 1405, 1414-1415 (Andy G.).) In P.A., the court broadly stated that "aberrant sexual behavior by a parent places the victim's siblings who remain in the home at risk of aberrant sexual behavior." (P.A., supra, at p. 1347, fn. omitted.) Further, the court noted that section 355.1, subdivision (d) (although the statute was not triggered in the case), "evinces a legislative determination that siblings of sexually abused children are at substantial risk of harm and are entitled to protection by the juvenile courts." (P.A., supra, at p. 1347.)
In In re Maria R. (2010) 185 Cal.App.4th 48 [2010 Cal.App. Lexis 775, *] (Maria R.), this court declined to adopt the reasoning of such cases as P.A. and Andy G. We explained: "Since there is no evidence in the record that would tend to support a finding that George has an interest in engaging in sexual activity with a male child, we cannot... conclude that [his] sexual abuse of his daughters-as aberrant as it is-establishes that George, Jr., is at substantial risk of sexual abuse within the meaning of section 300 subdivision (j), as defined in section 300 subdivision (d) and Penal Code section 11165.1." (Maria R., supra, at *37-*38.) Maria R. goes on to explain, however, that the sexual abuse of his sisters caused a dysfunctional home environment that may have harmed the son and put him at substantial risk of abuse or neglect under a subdivision of section 300 other than subdivision (d), which would support a petition on his behalf under subdivision (j). We remanded the matter and ordered the Agency to reassess the matter. (Maria R., supra, at *38-*40.) Here, in contrast to P.A., Andy G. and Maria R., the victim of sexual abuse and the sibling are both female.
Section 355.1, subdivision (d) provides in pertinent part: "Where the court finds that either a parent, a guardian, or any other person who resides with... a minor who is currently the subject of the petition filed under Section 300... has been found in a prior dependency hearing... to have committed an act of sexual abuse, ... that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption affecting the burden of producing evidence." Here, the Agency did not file a dependency petition on L.S.'s behalf since she lives with her biological father.
In arguing the age differential here is immaterial, the Agency relies on In re Lucero L. (2000) 22 Cal.4th 1227, 1235 (Lucero L.). In Lucero L., a psychologist and child abuse specialist "testified that the molestation risk to a man's three-year-old biological child increased greatly if he had molested an 11- or 12-year-old nonbiological female child in the household, and increased as the three year old aged." The expert also explained the "pathology of a man who molested his lover's 14-year-old daughter was related to the pathology of a man who molested his own two-and-one-half-year-old daughter. These pathologies tended to occur in the same individuals." (Ibid.) In Lucero L., the juvenile court found the expert's "testimony was credible that 'someone who has molested a child of his girlfriend has a much greater likelihood of molesting his own child when both of them are females." (Id. at p. 1236.)
Here, there was no expert testimony similar to that in Lucero L. In any event, even if an age differential is arguably germane when considering risk of sexual abuse to a sibling, we reject Dwayne's argument that P.A. dictates a more favorable result for him. P.A. does not clarify the meaning of the phrase "approaching the age." (P.A., supra, 144 Cal.App.4th 1339.) In P.A., the court noted that one of the sons was five years old when the dependency petition was filed (the other son was eight years old), and the daughter was nine years old when the father began sexually abusing her. (Id. at p. 1345, fn. 4.) Jeanne was nearing five years of age when the jurisdictional hearing concluded, and Dwayne's sexual abuse of L.S. began when she was 10 years of age. Thus, the age differentials here and in P.A. are similar. Further, there is no indication that when L.S. was 10 years old she was physically mature for her age. In other words, the court could reasonably find Dwayne has a proclivity for young girls rather than prepubescent or pubescent girls, putting Jeanne at or near the age or risk.
II
Evidentiary Rulings
A
Additionally, Dwayne contends the court erred by precluding him from adducing certain evidence to show L.S.'s lack of credibility. Specifically, he assigns four errors: the court's disallowance of (1) questioning of L.S. as to what she did with the towel she used to stop the bleeding to her head after he struck her with a belt buckle; (2) questioning of T.I. on whether she had "any concerns" about L.S. being "sexually active" during the period of the sexual molestations; (3) questioning of Dr. Rosen on whether pain medications subscribed to Dwayne could cause a "reduced libido"; and (4) questioning of Dr. Rosen on the prognosis for Dwayne's right arm.
"In ruling on the admissibility of evidence, the trial court is vested with broad discretion. ' "[T]he court's ruling will be upset only if there is a clear showing of an abuse of discretion." [Citation.] " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason....' " ' " (In re Cole C. (2009) 174 Cal.App.4th 900, 911.) Further, a harmless error standard applies under which the aggrieved parent must show that absent the error there is a reasonable probability a more favorable outcome would have been obtained. (In re James F. (2008) 42 Cal.4th 901, 918-919; People v. Watson (1956) 46 Cal.2d 818, 836-837.)
We find no abuse of discretion in excluding T.I.'s bare opinion, unsupported by any corroborating evidence, that L.S. was consensually sexually active during the time she claimed Dwayne was sexually molesting her. The "right to present evidence is limited to presenting 'relevant evidence of significant probative value to the issue before the court.' " (In re Carl R. (2005) 128 Cal.App.4th 1051, 1068.) The court allowed T.I. to respond to the question, "Did you ever see [L.S.] engaging in any activity with anyone that you thought indicated she was involved in a sexual conduct?" She said "No." Her opinion that L.S. was sexually active when she was only around 10 or 11 years of age was sheer speculation. The Agency's protective services worker, Joseph, testified she knew of no information indicating L.S. was sexually active, L.S. told the forensic investigator at Children's Hospital she had not engaged in consensual sex, and she told her father she had not had consensual sex and he denied observing "any sexual acting-out behaviors."
Dwayne claims that testimony from Dr. Rosen pertaining to the prognosis for his right arm was "highly relevant... to provide... a complete picture of the past, present, and future functionality of [his] arm." The prognosis for his arm, however, is not probative of its condition at the time of the sexual abuse, and that was the relevant issue at the hearing. The court allowed several witnesses to testify as to that issue, including Dr. Rosen. The condition of Dwayne's arm at the time of the hearing or in the future is irrelevant, and the court properly exercised its discretion.
The Agency concedes the question to L.S. pertaining to the towel she used to stop the bleeding to her head on one incident had some relevance, but it argues the court properly kept the evidence out under Evidence Code section 352. We need not decide the issue because it is not reasonably probable that had the court allowed L.S. to respond the outcome would have been more favorable to Dwayne. The towel pertained to only one of many incidents of abuse. Further, despite inconsistencies in L.S.'s disclosures, the court found her credible and was convinced Dwayne sexually molested her. L.S.'s testimony on what happened to the towel would not have mattered.
Likewise, we need not determine whether Dwayne established a sufficient foundation to question Dr. Rosen, a pain management specialist, on the potential effect of pain medications on Dwayne's libido, because even if in error the exclusion of his response was harmless. T.I. testified from first-hand knowledge that Dwayne was capable of sexual intercourse at the time of the molestations of L.S., and thus any opinion of Dr. Rosen was immaterial. In sum, reversal is not required because the court's rulings were either a proper exercise of its discretion or not prejudicial.
B
Dwayne contends the abuse of discretion standard is inapplicable. He asserts the court's evidentiary rulings violated his constitutional due process right to confront and examine witnesses, and de novo review applies. He also claims the rulings constitute structural error subject to reversal per se. Alternatively, he submits that because a constitutional right is involved reversal is required unless the error was harmless beyond a reasonable doubt. We disagree with all points.
"Impairment of the fundamental right to parent must comport with the requirements of procedural due process." (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1129.) When credibility is at stake during a dependency hearing, "parents are entitled to present oral testimony as well as to confront and cross-examine the witnesses against them." (Id. at p. 1130.) "Courts of Appeal have found that a constitutional due process violation in the dependency context requires application of the harmless beyond a reasonable doubt standard, since the error is of federal constitutional dimension." (Id. at p. 1132.)
Dwayne's reliance on Matthew P. (1999) 71 Cal.App.4th 841, is misplaced. In Matthew P., the juvenile court denied the de facto parents' request to cross-examine the social worker on his reports, relying on a rule of court that permitted section 388 hearings to be heard without testimony at the court's discretion. (Id. at p. 847.) The appellate court concluded the rule of court did not override the de facto parents' procedural due process right to a meaningful hearing. The court reversed the denial of the section 388 motion and directed the juvenile court to hold a new hearing to allow the de facto parents to cross-examine the social workers and present evidence. (Id. at pp. 851-852; accord, In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405.)
Here, the court did not disallow live testimony at the jurisdictional hearing. To the contrary, it patiently allowed many days of live testimony and Dwayne's counsel thoroughly examined and cross-examined the witnesses. Dwayne asserts the court "repeatedly... deprived [him] of due process by unreasonably sustaining numerous objections from opposing parties, " and the rulings "unreasonably prevent[ed] [him] from fully, and effectively, presenting evidence, and confronting and challenging the credibility of witnesses." The assertion is gross exaggeration. We have read the entire record and Dwayne had a full and fair opportunity to present his case. At most, he points out two evidentiary rulings that even if arguably erroneous did not affect the outcome.
Dwayne emphasizes that he had a right to cross-examine "each Agency report declarant." He does not, however, argue he was denied that right.
The concept of structural error originated in the criminal context. As the court explained in Judith P. v. Superior Court of Los Angeles County (2002) 102 Cal.App.4th 535, 556 (Judith P.): " 'Trial error' is error that occurs during the presentation of the case. [Citation.] An error that occurs during the trial process itself does not require automatic reversal because a court may quantitatively assess such error in the context of other evidence presented in order to determine whether the error was harmless beyond a reasonable doubt. [Citation.] [¶] In contrast, 'structural' errors involve ' "basic protections [without which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." ' [Citation.] Examples of such structural errors that result in an automatic reversal (the per se reversal standard) include total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendant's race from a grand jury, denial of the right to self-representation at trial, denial of the right to a public trial, and an erroneous reasonable doubt instruction to the jury."
In Judith P., the court applied the structural error concept to a dependency case. The error there, however, was not an evidentiary ruling that occurred during trial, but the failure to give a parent proper statutory notice of a section 366.21 hearing. (Judith P., supra, 102 Cal.App.4th at pp. 554, 557-558; see also In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1117-1118 [failure to notify parent of selection and implementation hearing when it had been in regular contact with her and knew her address was structural error subject to reversal per se]; but see, In re James F., supra, 42 Cal.4th 901, 918-919 ["If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required."])
In In re James F., supra, 42 Cal.4th at pages 918-919 (fn. omitted), our high court held "that a juvenile court's error in the process used for appointment of a guardian ad litem for a parent in a dependency proceeding is a form of trial error that is amenable to harmless error analysis." Given our holding, we are not required to address the Agency's argument that In re James F. indicates the court's blanket disapproval of the use of the structural error concept in dependency proceedings.
Evidentiary rulings made during a contested hearing are trial errors rather than structural errors, and their effect may be assessed in the context of the other evidence presented. (In re James F., supra, 42 Cal.4th at p. 917.) Thus, the reversal per se concept is inapplicable. As discussed, evidentiary rulings are subject to an abuse of discretion standard under which we must consider the prejudicial effect of any error.
DISPOSITION
The order is affirmed.
WE CONCUR: McINTYRE, J., AARON, J.