Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD16251, JD16252 JD16253.
McAdams, J.
In this dependency proceeding, the juvenile court assumed jurisdiction over three siblings and removed them from their parents’ home. The court found that the oldest child, an eight-year-old girl, had been sexually abused, based in part on evidence that she was suffering frxom chlamydia, a sexually transmitted disease.
In this appeal, the children’s parents challenge the juvenile court’s jurisdictional findings and dispositional order. They ask us to reverse the court’s jurisdictional findings on various grounds, including the lack of sufficient admissible evidence to support jurisdiction. They also attack the dispositional order, arguing that the court erred in removing the children from parental custody.
The parents have brought two other appeals in this court. One was voluntarily dismissed (H030869). The other challenged the juvenile court’s refusal to modify the jurisdictional and dispositional order (H030870). That appeal culminated in an unpublished decision, filed March 12, 2008, in which we affirmed the order. In her opening brief, the mother asks us to take judicial notice of the record in H030870. We find it neither proper nor necessary to do so.
For reasons explained below, we reject the parents’ contentions. We therefore affirm the juvenile court’s order.
FACTUAL BACKGROUND and PROCEDURAL HISTORY
In part, this background summary is taken from our earlier appellate decision (H030870). Additional facts appear both in this background section and in the discussion section of this opinion.
This proceeding involves three children, Olivia S. and her two younger brothers, whose parents are appellants Renee S. (the mother) and Tracy W. (the father). In June 2005, the children were placed in protective custody. At the time, Olivia was eight years old, and her brothers were three and one, respectively. The incident that precipitated the children’s detention was an investigation of suspected sexual abuse of Olivia, following a referral from her elementary school.
Petitions
In July 2005, petitions were brought on the children’s behalf by the Department of Family and Children’s Services (DFCS or Department). (See Welf. & Inst. Code, § 300.)
Further unspecified statutory references are to the Welfare and Institutions Code.
The petition filed on behalf of Olivia alleged that she had been sexually abused or was at risk of such abuse. (§ 300, subd. (d).) As factual support for that allegation, the petition described Olivia’s excessive masturbation at school, which had significantly “increased in the last few months.” It also stated that Olivia had made statements and drawings indicating that she bathed with her father. The petition further asserted that “the parents actively hid Olivia from DFCS and law enforcement despite requests that the parents produce the child for a forensic interview, and withdrew Olivia from school to prevent the Social Worker and Police Officials from interviewing her at school.”
The boys’ petitions likewise alleged that they had been sexually abused or were at risk of abuse. (§ 300, subd. (d).) Those petitions further alleged abuse of their sister. (Id., subd. (j).) The boys’ petitions contained factual assertions similar to those made in Olivia’s petition.
At the time set for the initial hearing, the court made provisional findings that the children were described by section 300.
The parents requested a prima facie evidentiary hearing on the petition, which the court conducted. By the third court day of the prima facie hearing, laboratory test results were available, which showed that Olivia had tested positive for chlamydia, a sexually transmitted disease. At that point, the mother’s counsel submitted “at the prima facie level to the allegations in the petition.” The father’s counsel did so as well.
Jurisdiction
Starting in September 2005, the juvenile court conducted a lengthy contested jurisdiction hearing. (See § 355.) That hearing took place over the course of more than two months, consuming 19 trial days and involving some 27 witnesses and 85 trial exhibits.
As proof that Olivia had been sexually abused, the Department offered several broad categories of evidence, including evidence related to Olivia’s chlamydia diagnosis; evidence of her behaviors suggesting abuse; and evidence of the parents’ reaction to the Department’s investigation.
Chlamydia Diagnosis
Concerning Olivia’s positive test for chlamydia, the Department’s witnesses included Janet Kahle, the senior microbiologist at Valley Medical Center (VMC), the facility that performed the laboratory tests. Kahle was the person who processed Olivia’s specimen. Kahle concluded that the specimen was positive for chlamydia.
Kahle testified at length about VMC’s procedures for processing such specimens, including the protocol for labeling the slides. Olivia’s test was done using the shell vial culture process. In that process, the labeled patient specimen is removed from the lab’s refrigerator and “inoculated into” a shell vial, which has been labeled by number and patient name to correspond to the specimen. A “shell vial … is a tube, flat on the bottom, [which] would stand up by itself if it needed to.” At the bottom of the vial is a small glass cover slip containing living cells to grow the agent (in this case, chlamydia). After the specimen is cultured, fixed, and stained, it is placed on a slide and examined under a fluorescing microscope for the presence of characteristic “inclusions” that indicate chlamydia. In this case, there were two such inclusions, a “sufficient number” to indicate chlamydia. The results of the test are handwritten, either “directly on the slide or on a worksheet.”
The Department also presented testimony from Dr. John Hamilton, director of the clinical microbiology lab at VMC. Having reviewed Olivia’s slide, Hamilton agreed that it was positive for chlamydia. In his opinion, it is impossible to get a false positive with the test used.
The Department also called physician’s assistant Mary Ritter, an expert in diagnosing sexual abuse, who had performed Olivia’s medical examination. She took a culture by swab from Olivia’s vagina, which was sent to VMC. Olivia’s symptoms included redness and a discharge, which can indicate chlamydia in young girls. Ritter stated that the shell vial culture process used in this case is the “gold standard for the medical diagnosis of chlamydia in prepubescent children.” She also testified that there is no explanation for chlamydia in a prepubescent child other than sexual contact.
To refute the Department’s evidence, the parents called expert medical witnesses who cast doubt on the conclusion that Olivia’s chlamydia test was positive.
One of the parents’ witnesses was Dr. Paul Wasserstein. Wasserstein, a pathologist, is the medical director of three laboratories, including Marin Medical Laboratories. He testified that a shell vial culture test could result in a false positive based on laboratory mistakes, such as mislabeling or commingling specimens, or on misinterpretation of “the fluorescent object.” Wasserstein received and examined a slide identified as Olivia’s, but saw no inclusions indicating chlamydia. Two inclusions would be the minimum for a positive diagnosis in any event. Wasserstein acknowledged that the culture degrades over time under fluorescence. Though Wasserstein routinely examines tissue samples, the same is not true of cultures. He had not examined a chlamydia culture for approximately 10 years.
Dr. Kenneth Hadler was another expert witness for the parents. Hadler is a pathologist at Palo Alto Pathology. He examined the slide identified as Olivia’s and saw one “equivocal” structure that might be an inclusion. Given VMC’s procedures, Hadler would consider the test result equivocal if there were less than five inclusions. Based on his notes, Hadler stated, the slide presented at trial as Olivia’s was not the slide that he had viewed at VMC. Hadler also was disturbed by the presence of two patients’ specimens on a single slide, since “it increases the chance substantially of a specimen mixup.” It had been at least 13 years since Hadler had seen a shell vial culture.
The parents also called Dr. Rita Melkonian as an expert witness. She is a gynecologist in private practice in Marin County and San Francisco. Melkonian reviewed the report and photographs from Ritter’s medical examination of Olivia. Having examined the photographs, she found the sequence confusing and she also stated that “they don’t seem to be one patient.” Melkonian expressed her “personal feeling” that a physician’s assistant should not be performing vaginal examinations on children. Melkonian disagreed with Ritter about the significance of Olivia’s vaginal discharge, saying that it would be normal for a child Olivia’s age. She also stated that if the culture had been taken from the hymen, it was inaccurate. Melkonian explained that the positive test for chlamydia could have resulted from mislabeling or a lab mistake. She also testified that penetration is usually required in order to transmit chlamydia.
In rebuttal, the Department offered testimony from Ritter and Hamilton. Ritter confirmed that the photographs Melkonian brought to court were the ones that Ritter had sent to her, though they were out of sequence. She disagreed with Melkonian’s suggestion that the photographs were of more than one person. Ritter confirmed that the images in the photographs were “all the same child” and that they were “pictures of Olivia.” Ritter also revisited the subject of vaginal discharge in a young child like Olivia, reiterating that its presence “indicates there is something going on there.”
Hamilton offered rebuttal testimony on several points. First, he testified that the slide Hadler reviewed was the one in evidence in this case. Next, he discussed a survey he made of other laboratories concerning two issues. The first issue was “how many cover slips” with patient specimens are placed on a single slide. Citing current practices at specific labs, Hamilton reported that anywhere from two to four cover slips were used per slide; in one case, it was six. The second question in Hamilton’s survey sought information about “the standard of practice for the number of chlamydia inclusions to be considered as positive.” He found that the “standard of practice is one or more” with one laboratory requiring two inclusions for a positive chlamydia diagnosis. Hamilton added: “Almost all of the literature reference on chlamydia cultures uses one.”
Olivia’s Behaviors, Statements, and Drawings
The Department’s evidence included testimony from several employees of Olivia’s elementary school concerning her excessive masturbation there. According to the school officials, Olivia also had reported taking baths with her father and the child had drawn a picture of that activity, plus she had made another drawing of what she called a “sex bean” or “sex beam.” Olivia consistently denied any molestation, however.
Two social workers, testifying for the Department, opined that Olivia’s masturbation was unusual because of its frequency and intensity, and because it took place in public settings, which indicated a lack of boundaries. The social workers also noted reports from the foster mother that Olivia had been putting her hands into her brothers’ pants, a behavior that suggested earlier abuse of the girl. Dr. Catherine Albin testified that Olivia’s behaviors were “consistent with risk for child abuse.”
For their part, the parents offered the testimony of Dr. Randy Rand, a psychologist and board-certified forensic examiner. Rand was retained by the parents’ trial attorneys as “their forensic psychological expert.” The court qualified Rand as an expert “in the field of investigative interviewing of children” and “child sexual abuse.” Rand had been contacted by the parents’ first attorney, Patrick Clancy. Rand met Clancy “through his work in defending individuals who are charged with child molestation”. Clancy arranged a forensic interview of Olivia by Harvey Shapiro, conducted on June 9, 2005, which Rand observed. During the interview, Rand saw Olivia clasping her hands in her crotch and rocking. He characterized that behavior as “extraneous motor movement” not masturbation. In any event, Rand testified, “even if Olivia S[.] were engaging in masturbatory behavior, there is no scientific evidence to link that behavior to sexual molest.”
The Parents’ Conduct
Evidence of the parents’ reaction to the Department’s investigation came in through various witnesses.
Emergency response social worker Jewells Ramirez testified that she telephoned the family home on June 7, 2005, and spoke to the father. She advised him that the Department had received a referral, but she did not disclose its nature. Ramirez said that she needed to speak to him and Olivia. The father indicated that he wanted to speak to an attorney. When Ramirez contacted the school the next day, she was told that the family had kept Olivia home from school. She was also told that the father did not want any government officials speaking to his child. When Ramirez again spoke with the father on June 15th, he stated that he had retained an attorney, whom he wanted present during any meeting with Ramirez. He also stated that Olivia had undergone a forensic interview, arranged by his attorney. The case was assigned to another worker, Vu Tran, when Ramirez went on vacation.
Social worker Vu Tran went to the family home on June 29, 2005. The parents were not home. Tran came back later, accompanied by law enforcement officers. The two younger children were there with the maternal grandmother. Tran overheard San Jose Police Sergeant Craig Blank speaking by telephone with the father. The father refused to bring Olivia home and hung up on the officer. Based on the father’s evasiveness and refusal to cooperate, the decision was made to put the two boys into protective custody.
In his testimony, Sergeant Blank confirmed that he had spoken by telephone with the father, who refused to produce Olivia, even after being assured that the officers were interested only in the child’s welfare and would not question the father, and even after being advised that his two boys would be taken into protective custody.
The parents also testified about their conduct following the referral.
On June 7, 2005, after speaking to Ramirez, the father located attorney Patrick Clancy through an internet search. He called Clancy the next morning, arranging an appointment for the following day, June 9th. Clancy met with the parents at the family home, where Olivia overheard them speaking. Clancy advised the father that it was important to interview the child as soon as possible. Although the father knew very little about the people who would be interviewing Olivia, he allowed her to be interviewed that same day, June 9th.
On June 29th, the day that the boys were taken into protective custody, the father refused to come home with Olivia out of concern that the officers would not conduct a fair interview. On advice of counsel, the father stayed away from home for the next several nights. Following other instructions from his attorney, the father did not to speak with anyone from the Department after June 15th.
The mother also testified about her actions following news of the referral. She wanted Olivia to be seen by a doctor. Concerned about how long it might take to get an appointment at Kaiser, the mother took Olivia to her former physician, Dr. David Waggoner, rather than her regular pediatrician at Kaiser, Dr. Eloise Joseph. Dr. Waggoner examined Olivia the next day.
On the day that the boys were taken into protective custody, the mother “did not immediately return home to deal with that crisis because” she “had to speak with an attorney at that point” since she “simply didn’t know what to do.” After speaking with the grandmother, the mother “just waited for Mr. Clancy to return [the] call” placed by the father. She and the father first went to a friend’s home, then to a computer store, then to a restaurant. She arrived home around midnight. Though she did not feel “comfortable” having the boys taken into protective custody, the mother’s “paramount concern was arranging through Mr. Clancy for Olivia to be interviewed.”
Juvenile Court’s Ruling
On November 28, 2005, at the conclusion of the jurisdictional trial, the juvenile court sustained jurisdiction over Olivia and her two younger brothers. In doing so, the court explained that it was “persuaded by not one piece of evidence but the total package including Olivia’s history of repetitive masturbation beginning in kindergarten, including in public settings; the positive chlamydia test; Olivia’s drawings that are phallic in nature.” The court also cited other evidence, including “Olivia’s use of the term sex bean or sex beam; … the parents’ reaction to the call from CPS, to hire an attorney who defends sex abuse cases”; and the father’s actions in “keeping Olivia out of school to avoid being taken into custody by CPS.” The court stated that the parents’ position at trial was based on an unpersuasive “conspiracy” or “snowball” theory, which relied on three prongs: the parents’ claim of retaliation by the school; their assertion of confirmatory bias on the part of the Department; and their attack on the lab results. Concerning the last prong, the court explicitly rejected the parents’ attack on the chlamydia diagnosis, finding the Department’s scientific evidence more credible than the parents’.
The court concluded that the children were “at substantial risk of sexual abuse” and that the parents had failed to protect them. The court thus sustained jurisdiction over Olivia under subdivision (d) of section 300; it sustained jurisdiction over her brothers under subdivisions (d) and (j). The court set a date for the disposition hearing. The children remained in out-of-home placement.
Disposition
In January 2006, the juvenile court conducted the contested disposition hearing. (See § 358.) At the conclusion of the hearing, the court ordered the children removed from the parents’ physical custody, and it continued their out-of-home placement with the Department.
The parents attacked the jurisdictional findings and dispositional order on two fronts. First, they noticed this appeal in March 2006. In addition, the parents proceeded in the juvenile court with a petition for modification.
Modification Petition
In July 2006, the mother filed a petition for modification under section 388. The petition was based on the recent discovery of laboratory errors at VMC. In the petition, the mother asserted that the children’s best interest would be served by a return to their parents’ care. By way of remedy, the mother asked the court to reverse its jurisdictional findings, dismiss the case, and return the children; alternatively, she requested a new trial.
Hearing
In August 2006, the juvenile court conducted a hearing on the mother’s petition, limited to the new evidence concerning laboratory errors.
The father requested a hearing on his motion for modification, which drew the Department’s objection on timeliness grounds. The court agreed to proceed with the understanding that the father’s “additions relating to a change of circumstances” would not be part of the proceedings.
The sole witness at the modification hearing was Dr. John Hamilton, who had testified at the contested jurisdictional trial. Hamilton testified that he discovered a transcription error in January 2006 in connection with a gonorrhea/chlamydia amplification test unrelated to this case. Discovery of that error prompted Hamilton’s decision to perform an audit of all tests of that type, going back approximately six months. The audit revealed three sets of errors. In addition to the error in the January 2006 test that originally caught his attention, the audit disclosed additional transcription errors made on two dates in 2005: June 24th and November 16th. Both errors were made by Janet Kahle, the microbiologist who had processed Olivia’s chlamydia culture at VMC.
In his testimony, Hamilton stressed that the errors disclosed by the audit concerned the transcription of results from gonorrhea/chlamydia amplification tests, which was not the type of test done on Olivia’s culture. When asked whether he had any doubts about the validity of Olivia’s test, Hamilton responded: “None whatsoever.” Hamilton explained that he had re-examined the slide and worksheet used in Olivia’s shell vial culture test, finding “no hint of any errors” concerning that test.
In addition to Hamilton’s testimony, the parties proffered documentary evidence. The court then entertained argument and took the matter under submission.
Order
In a formal order entered the following day, the juvenile court rendered its decision denying the relief requested. As reflected in the order, the court determined that the parents failed to carry their burden of proof under section 388, that “the new evidence presented does not warrant reversal or modification” and that “the best interest of the Minors would not be promoted by reversal or modification” of the jurisdictional order.
Appeal from the Modification Order
The parents brought an appeal challenging the juvenile court’s denial of the section 388 petition for modification. That appeal was ready for resolution before this one. In an unpublished opinion, filed March 12, 2008, we affirmed. (H030870, p. 13.) First, addressing the parents’ evidentiary claims in light of the appellate record, we found that the juvenile court did not err in rejecting their claim of changed circumstances. (Id., pp. 9-10.) Second, reaching the merits of the parents’ procedural contentions, we concluded that they received a fair hearing. (Id., pp. 11-13.)
ISSUES PRESENTED IN THIS APPEAL
As presented in their separate opening briefs in this appeal, the parents’ contentions are largely directed to the evidence. Both parents claim reversible error arising from the juvenile court’s foundational procedures and admissibility determinations. The parents also challenge the sufficiency of the evidence to support jurisdiction and disposition. In addition, they claim judicial bias and due process violations.
DISCUSSION
We first consider the parents’ evidentiary challenges to the jurisdictional findings, starting with the procedural aspects of the juvenile court’s admissibility determinations. As we did in the first appeal, we begin by summarizing the legal principles that inform our analysis.
I. Overview of Dependency Law
The Legislature has provided for juvenile court jurisdiction over dependent children. (See § 300 et seq.) The primary goal of the dependency statutes is “to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible.” (In re David M. (2005) 134 Cal.App.4th 822, 824; see § 300.2; In re Marilyn H. (1993) 5 Cal.4th 295, 307.) In dependency proceedings involving the removal of children from their parents, there are generally four phases: jurisdiction, disposition, reunification (unless bypassed), and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) The first two phases are at issue in this appeal.
To justify the court’s assumption of dependency jurisdiction, there must be evidence that the affected children fall within one or more of the statutory descriptions listed in section 300. As to disposition, the juvenile court “has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order” accordingly. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Among the permissible dispositional choices is removing the child from the parent’s physical custody. (§ 361.)
II. Analysis: Jurisdiction
The parents raise numerous challenges to the juvenile court’s jurisdictional determinations. We begin with the father’s assertions of procedural error, which he bases on the court’s claimed failure to conduct a separate evidentiary hearing to consider the admissibility of the Department’s evidence.
A. Foundational Evidentiary Hearing
According to the father, the juvenile court was required to conduct a hearing under Evidence Code section 402 to determine the reliability of two categories of evidence proffered by the Department: the lab results and opinions based on Olivia’s behavior. More specifically, the father’s admissibility challenges are based on the “Kelly/Frye” rule. The father asserts that the court’s failure to conduct a section 402 hearing to consider these challenges constitutes reversible error.
See People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013. The Frye test “was superseded by the adoption of the Federal Rules of Evidence.” (Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587, fn. omitted.) Nevertheless, the Kelly standard continues to be the law of this state. (People v. Leahy (1994) 8 Cal.4th 587, 604 (Leahy).) Though Kelly/Frye remains a “popular designation” for the doctrine, the name “Kelly test may be more apt.” (People v. Nolan (2002) 95 Cal.App.4th 1210, 1212, fn. 1; see 2 Witkin, Cal. Evidence (4th ed., 2000) Demonstrative, Experimental, and Scientific Evidence, § 42, p. 54.)
1. Legal Principles
A hearing under Evidence Code section 402 serves “to decide preliminary questions of fact upon which the admissibility of evidence depends.” (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 209, fn. 6.) Ordinarily, at a foundational evidentiary hearing, the proponent of the proffered evidence has the burden of “producing evidence as to the existence of the preliminary fact” on which admissibility depends. (Evid.Code, § 403, subd. (a); see generally, Jefferson’s Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2008), chs. 23-25.)
a. Procedural Aspects
“Evidence Code section 400 et seq., sets forth the rules for determining the existence or nonexistence of a preliminary fact when the parties dispute its existence.” (People v. Hoyos (2007) 41 Cal.4th 872, 897.) “But subdivision (b) of Evidence Code section 402 does not mandate … that a court must hold an evidentiary hearing on request.” (Ibid.) Where “no ‘preliminary fact’ concerning … admissibility” is presented, “challenges to the reliability” of proffered testimony “go to the weight of [the] testimony rather than its admissibility (Evid. Code, § 351)….” (Ibid.) In such cases, an evidentiary hearing is not warranted. (Ibid.)
“A ruling on a motion under section 402, moreover, is not binding on the trial court if the subject evidence is proffered later in the trial.” (People v. Williams (1997) 16 Cal.4th 153, 196.) Furthermore, “the court may admit conditionally the proffered evidence under this section, subject to evidence of the preliminary fact being supplied later in the course of the trial.” (Evid. Code, § 403, subd. (b).)
b. Appellate Review
“On appeal, a trial court’s decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion.” (People v. Williams, supra, 16 Cal.4th at p. 197 [trial court “was within its discretion in failing to conduct additional proceedings outside the jury’s presence on the question of gang evidence”].)
That same review standard also applies when the appeal challenges the constitutionality of the hearing procedure. (Cf. In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405 [at section 388 hearing, juvenile court “deprived mother of her right to due process” by not allowing cross-examination, which “constituted an abuse of discretion”]; In re C.J.W. (2007)157 Cal.App.4th 1075, 1081 [at section 388 hearing, juvenile court’s refusal to allow parents to present evidence or cross-examine social workers was neither an abuse of discretion nor a denial of due process].) When a denial of due process is shown, the reviewing court determines whether it is harmless beyond a reasonable doubt. (In re Clifton V.,at p. 1406, fn. 12; In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1132.)
2. Application to this Case
Here, the court considered and rejected the parents’ contentions concerning admissibility, though not in a separate hearing.
This case thus is distinguishable from the decision on which the father relies, In re Kathleen W. (1987) 190 Cal.App.3d 68 . In that case, the mother of a dependent child sought to introduce her polygraph results. (Id. at p. 70.) The juvenile court refused to grant her a foundational evidentiary hearing, “on the apparent ground that the polygraph evidence would not, in any event, be admissible.” (Id. at p. 71.) The Court of Appeal disagreed with that rationale, concluding: “The Legislature left open the question of use of polygraph examination in civil and noncriminal juvenile matters.” (Id. at p. 72.) It therefore reversed. (Id. at p. 73.)
The juvenile court was not required to hold a separate or formal hearing to consider the parents’ challenges to the admissibility of the Department’s evidence here. The trial court has wide discretion to “regulate the order of proof.” (Evid. Code, § 320; People v. Alvarez (1996) 14 Cal.4th 155, 207 [“superior court was not unreasonable in allowing the People’s inquiry into specific questions by the officers … in advance of their introduction of evidence” on the point].) Here, the juvenile court took up the parents’ objections during trial. It “was not bound to provide … additional hearings under Evidence Code section 402….” (People v. Williams, supra, 16 Cal.4th at p. 196.) “The law does not mandate a trial court hold a full-scale Kelly-Frye hearing just because one side or the other requests it.” (People v. Superior Court (Maldonado) (2006) 137 Cal.App.4th 353, 368.)
Nor was the court required to make specific findings concerning admissibility. (Evid. Code, § 402, subd. (c).) “A trial court’s ruling on admissibility implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary.” (People v. Williams, supra, 16 Cal.4th at p. 196.)
For these reasons, we reject the argument that the juvenile court committed reversible error in failing to conduct a separate hearing under Evidence Code section 402 in connection with the parents’ admissibility challenges to the Department’s evidence.
B. Kelly Test
The parents base their appellate arguments concerning admissibility on the Kelly doctrine, as they apparently did below. We consider those issues now. We begin by summarizing the doctrine’s pertinent legal principles; we then apply them to this case.
On September 19, 2005, the mother filed a formal motion to exclude opinion testimony of sexual abuse based on Olivia’s behaviors. She specifically relied on the Kelly doctrine. On the same date, the father filed his own written motion to exclude several categories of evidence, including “any reference to physical behaviors of Olivia S. being characterized as ‘sexual’ ” as well as “the alleged positive Chlamydia test for the child”. The father’s motion neither mentions scientific evidence nor cites Kelly, however. The parents renewed their motions and objections periodically throughout the proceedings.
1. Legal Principles
As the California Supreme Court recently observed, “the Kelly/Frye test constitutes a judicially created rule relating to the admissibility of certain types of evidence….” (People v. Wilkinson (2004) 33 Cal.4th 821, 845.) “Under the Kelly/Frye doctrine, evidence of a new scientific technique is not admissible unless it has gained general acceptance in the scientific community.” (People v. Nolan, supra, 95 Cal.App.4th at p. 1213; see generally, 2 Witkin, Cal. Evidence, supra, §§ 42-45, pp. 53-58; id. (2006 supp.), pp. 7-10.) “Despite a plethora of case authority and textual materials on the subject, Kelly-Frye remains an elusive and inconsistently applied component in evidentiary law.” (People v. Bowker (1988) 203 Cal.App.3d 385, 398 (conc. opn. of Benke, J.).) “While the standards imposed by the Kelly/Frye rule are clear, the definition of a ‘new scientific technique’ is not.” (People v. Stoll (1989) 49 Cal.3d 1136, 1155 (Stoll).)
a. Underlying Policies
“The objective of the Kelly-Frye rule is to preclude the use of untested and developing scientific methods of fact determination. The proof of a fact in issue is not permitted by use of new or novel methods until it can be shown that the new procedure has achieved reliability.” (People v. Cegers (1992) 7 Cal.App.4th 988, 995.)
At its core, the critical value underpinning the doctrine is the reliability of trial evidence. “The Kelly/Frye test is merely an application of the ‘reasonable reliability’ standard to purported ‘scientific’ methods of establishing guilt or innocence.” (Stoll, supra, 49 Cal.3d at p. 1165 (dis. opn. of Lucas, J.).) Consistent with that core value, “evidence based upon the application of a new scientific technique … may be admitted only after the reliability of the method has been foundationally established, usually by the testimony of an expert witness who first has been properly qualified.” (People v. Soto (1999) 21 Cal.4th 512, 518-519.)
b. Requirements
The Kelly test requires the proponent of the evidence (1) to establish that the new technique or method is sufficiently established to have gained general acceptance in the particular field to which it belongs; (2) to offer the testimony of a properly qualified expert regarding the technique and its application; and (3) to establish that correct scientific procedures were used in the case in question. (People v. Soto, supra, 21 Cal.4th at p. 519; see also, e.g., People v. Cook (2007) 40 Cal.4th 1334, 1344; People v. Venegas (1998) 18 Cal.4th 47, 78.)
c. Limitations on Kelly’s Application
There are two major constraints on use of the Kelly doctrine: the technique at issue must be “new” and it must be “scientific.” (Leahy, supra, 8 Cal.4th at p. 605; Stoll, supra, 49 Cal.3d at p. 1156.)
Consistent with the first limitation, the proffered evidence must relate to something novel. “Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law.” (Stoll, supra, 49 Cal.3d at p. 1156; see also, e.g., Leahy, supra, 8 Cal.4th at pp. 605-606.)
If the technique is not new, Kelly has no application. (See, e.g., People v. Pride (1992) 3 Cal.4th 195, 239 [microscopic hair comparison evidence is not new]; People v. Huggins (2006) 38 Cal.4th 175, 200 [same]; People v. Nolan, supra, 95 Cal.App.4th at p. 1214 [enzyme immunoassay technique for detection of drugs in urine is not new]; People v. Bury (1996) 41 Cal.App.4th 1194, 1201-1202 [preliminary alcohol screening (PAS) device “is not a novel technique” nor is “the ‘fuel cell’ device” in the particular machine “a new scientific development”]; People v. Cegers, supra, 7 Cal.App.4th at p. 999 [oximeter, used to monitor blood oxygen, “is not a new scientific gadget”]; People v. Municipal Court (Sansone) (1986) 184 Cal.App.3d 199, 201 [“there is nothing new about the use of urine tests to ascertain the level of alcohol in the blood”].)
The second major constraint on the applicability of Kelly is that the proffered evidence must be scientific. “Which particular evidence is deemed ‘scientific’ and therefore subject to the general acceptance test is frequently disputed.” (People v. Bowker, supra, 203 Cal.App.3d at p. 391, fn. omitted.) “According to Stoll, a technique may be deemed ‘scientific’ for purposes of Kelly/Frye if ‘the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury.’ ” (Leahy, supra, 8 Cal.4th at p. 605, quoting Stoll, supra, 49 Cal.3d at p. 1156.) “The most obvious examples are machines or procedures which analyze physical data. Lay minds might easily, but erroneously, assume that such procedures are objective and infallible.” (Stoll at p. 1156.) But Kelly is not limited to the analysis of physical evidence. (Ibid.) “[G]iven the rule’s prophylactic purpose, nothing precludes its application to ‘a new scientific process operating on purely psychological evidence.’ ” (Ibid., quoting People v. Shirley (1982) 31 Cal.3d 18, 53.)
In addition to the above two limitations, it is important to note that “Kelly ‘tests the fundamental validity of a new scientific methodology, not the degree of professionalism with which it is applied.’ ” (People v. Cook, supra, 40 Cal.4th at p. 1346, italics added.) Once a scientific technique “has become generally accepted, mere variations in technique or procedure go to the weight of the evidence, not its admissibility.” (Id. at p. 1345.)
d. Use in Dependency Proceedings
As the California Supreme Court has explained, the “narrow ‘common sense’ purpose” of the Kelly doctrine is “to protect the jury” from relying on unproven science. (Stoll, supra, 49 Cal.3d at pp. 1155-1156, italics added.) “The Kelly rule is based on the notion that juries may give undue weight to experimental techniques presented by credentialed experts whose testimony may convey an unjustified aura of scientific certainty.” (California Criminal Law: Procedure and Practice (Cont.Ed.Bar 7th ed., 2008) § 31.12, p. 932, italics added.) “The Kelly test is intended to forestall the jury’s uncritical acceptance of scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate.” (People v. Venegas, supra, 18 Cal.4th at p. 80, italics added.)
The doctrine’s focus thus has been on the impact of scientific evidence on lay jurors. Nevertheless, it has been applied even where a judge is the trier of fact, with no attendant danger of jury confusion. Thus, for example, the Kelly test has been employed in administrative proceedings. (Seering v. Department of Social Services (1987) 194 Cal.App.3d 298, 310; Harris Transportation Co. v. Air Resources Board (1995) 32 Cal.App.4th 1472, 1478.) In such proceedings, one court concluded, “the purpose of the Kelly-Frye rule will be served by applying it in this context.” (Seering v. Department of Social Services, at p. 310.)
In the dependency context, the published cases applying the doctrine have done so with little critical analysis on this point. (See In re Amber B. (1987) 191 Cal.App.3d 682, 686; In re Christie D. (1988) 206 Cal.App.3d 469, 478.) As one court observed: “We recognize that the rules of evidence are relaxed in dependency proceedings but expert evidence not shown to be reliable under the requisite Kelly-Frye criteria and properly objected to remains inadmissible.” (In re Sara M. (1987) 194 Cal.App.3d 585, 594.) None of these cases mentions the doctrine’s focus on juries.
While we might question the need for rigorous adherence to the Kelly test in juvenile court bench trials, for purposes of our decision here, we nevertheless shall assume that the doctrine applies in this context. We indulge that assumption for two reasons. For one thing, by statutory edict in dependency proceedings, “admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision.” (§ 701; see also, Cal. Rules of Court, rule 5.684(b).) For another thing, judges – like any other trier of fact – may lack sufficient scientific background to gauge the reliability of unproven scientific evidence unaided. In that vein, the Seering court saw “no reason why an administrative law judge in a proceeding to revoke a license, and later a trial judge reviewing the administrative record under the independent judgment standard, would be any less likely to be misled by the ‘aura of infallibilty’ with which the courts have been concerned.” (Seering v. Department of Social Services, supra, 194 Cal.App.3d at p. 310.)
2. Appellate Review
A trial court’s decision concerning the admissibility of evidence is subject to review for abuse of discretion. “This is especially so when, as here, the evidence comprises expert opinion testimony.” (People v. Rowland (1992) 4 Cal.4th 238, 266.) However, the “conclusion that a certain legal principle, like the Kelly-Frye rule, is applicable or not in a certain factual situation is examined independently.” (Ibid.) To warrant reversal on appeal, the erroneous admission of evidence must have “resulted in a miscarriage of justice.” (Evid. Code, § 353, subd. (b).)
3. Application to the Behavioral Evidence
Here, there was evidence that Olivia exhibited sexualized behavior, which one witness found suggestive of sexual abuse. The mother asserts that the “psychological analysis of behavior” is a new scientific technique for proving sexual abuse, which is subject to the Kelly test.
The Department rejects those assertions, arguing that evidence of the behaviors came in through eyewitnesses, not experts, and that the Kelly rule thus was not implicated. The children make the same observation in their respondents’ brief.
a. Lay Testimony
As the Department correctly points out: “The observations of the school staff did not constitute scientific evidence. [Those witnesses] described the behavior they observed Olivia engaging in, and then answered questions about whether they characterized the behavior as masturbatory. The court was free to accept or reject the conclusion of each of the witnesses concerning their characterization of the behavior.”
Kelly has no application to lay testimony. (Stoll, supra, 49 Cal.3d at p. 1156 [doctrine applies only to a “limited class of expert testimony”].)
b. Opinion Testimony
Kelly may apply “to scientific processes based on purely psychological evidence.” (People v. Bowker, supra, 203 Cal.App.3d at p. 391; Stoll, supra, 49 Cal.3d at p. 1156.) “Illustrative is the use of a psychological ‘profile’ for the demonstration of typical attributes of a particular class of victims or perpetrators.” (People v. Cegers, supra, 7 Cal.App.4th at p. 996.)
“However, absent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly/Frye.” (Stoll, supra, 49 Cal.3d at p. 1157.) “When a witness gives his personal opinion on the stand — even if he qualifies as an expert — the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible.” (People v. McDonald (1984) 37 Cal.3d 351, 372, overruled on another point in People v. Mendoza (2000) 23 Cal.4th 896.)
Here, only one of the Department’s expert witnesses ventured any sort of opinion tying the behavioral evidence alone to molestation. That witness was Dr. Catherine Albin, whom the court qualified as an expert in child abuse, pediatrics, and microbiology. When asked about evidence that Olivia “had been molested,” Albin stated: “She actually has a very suggestive social history.” Albin identified “concern that this child was having excessive masturbation in both public and private places. … And there were other issues related to information that she relayed with respect to bathing with an adult male, specifically her father, and potentially some drawings that had some concerning elements to them. I have not seen the drawings. These are consistent with risk for child abuse.” On cross-examination, Albin testified: “It is possible that [Olivia] does have autistic spectrum disorder, autistic-like behaviors, or other emotional behaviors. She might masturbate more often, more publicly, more frequently than a child with a similar sexual encounter who doesn’t have the same emotional or developmental differences. So, I think it is very difficult to say that the presence of masturbation is diagnostic. It is only suggestive. … But, again, the sexual connotation in connection with a sexually transmitted disease, I think, is very significant.”
Social worker Yazmina Letona was asked whether Olivia’s behaviors were consistent with sexual abuse, “taking into account” the chlamydia diagnosis. She testified that “the relationship between the masturbation and the chlamydia is established because now you know she has been sexually molested because she had chlamydia. And … you can make an inference that the masturbation is due to the fact that she has been molested.”
We would not characterize the foregoing testimony as opinion evidence. But in any event, to the extent that Albin’s testimony could be considered an expert opinion tying Olivia’s behavior to the likelihood of molestation, it does not implicate Kelly. “The psychological testimony proffered here raises none of the concerns addressed by Kelly/Frye. The methods employed are not new to psychology or the law, and they carry no misleading aura of scientific infallibility.” (Stoll, supra, 49 Cal.3d at p. 1157 [interviews and standardized personality tests].)
(i) Novelty:
First, the use of such testimony is not new. In the Cheryl H. case, for example, the court accepted expert testimony that the minor “had been sexually abused.” (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1116, disapproved on other grounds in People v. Brown (1994) 8 Cal.4th 746, 763.) The court concluded that the “topic was a proper subject for expert opinion testimony and, furthermore, that the opinion itself was based on proper and sufficient ‘matter.’ ” (Ibid., fns. omitted.) The expert’s “psychiatric testimony about the victim’s postinjury behavior” properly supported “the conclusion she was sexually abused.” (Id. at p. 1117.) “A psychiatrist is an expert in the functioning of the human mind. Accordingly, the law has freely allowed psychiatrists to venture opinions in court about various aspects of the mental condition of people they have examined.” (Id. at p. 1118.) “The law recognizes psychiatrists to be experts in drawing inferences about mental capacities and conditions. Thus they are allowed to give expert opinion testimony about what is happening within a patient’s mind.” (Id. at pp. 1118-1119.)
In Stoll, a different category of psychological evidence was at issue – expert opinion that the defendant, charged with the sexual molestation of children, “displays no signs of ‘deviance’ or ‘abnormality.’ ” (Stoll, supra, 49 Cal.3d at p. 1140.) The court concluded that the evidence was admissible and not subject to the Kelly rule. As the court explained: “Professional testimony regarding the absence of sexual deviance … is authorized under statutory rules permitting a criminal defendant to introduce evidence of his ‘good character.’ ” (Ibid.) “Of course, such evidence must satisfy traditional limits governing the admission of expert testimony — a qualified witness, testifying on an appropriate ‘subject,’ and relying upon professionally reasonable ‘matter.’ ” (Ibid.) But the court saw “no reason to subject this testimony, or the matter upon which it is based, to the special restrictions governing admission of new, novel, or experimental scientific techniques not previously accepted in the courts” under Kelly-Frye. (Id. at pp. 1140-1141.) “We adhere to settled law viewing this testimony as competent but disputable ‘expert opinion,’ rather than new ‘scientific’ evidence that must be proven reliable before it is admitted.” (Id. at p. 1141, italics added.)
In Stoll, the California Supreme Court also discussed its earlier decision involving rape trauma syndrome, People v. Bledsoe (1984) 36 Cal.3d 236. (Stoll, supra, 49 Cal.3d at pp. 1160-1161.) As the court put it, “Bledsoe did not hold that the Kelly/Frye test applied to the expert opinion in that case, nor did we discuss the test’s relationship to ‘syndrome’ or other expert psychological evidence in general.” (Id. at p. 1161.) The Stoll court also remarked: “We are not persuaded that juries are incapable of evaluating properly presented references to psychological ‘profiles’ and ‘syndromes.’ ” (Id. at p. 1161, fn. 22.)
(ii) Science:
Apart from its lack of novelty, the evidence presented here conveys “no misleading aura of scientific infallibility.” (Stoll, supra, 49 Cal.3d at p. 1157.) Albin stated that “the presence of masturbation” was “only suggestive” and not “diagnostic.” Those are “normative and subjective” statements, which represent “a learned professional art, rather than the purported exact ‘science’ with which Kelly/Frye is concerned….” (Id. at p. 1159.) Moreover, “no reasonable juror would mistake an expert’s reliance on standardized [personality] tests as a source of infallible ‘truth’ on issues of personality, predisposition, or criminal guilt.” (Ibid.) In these proceedings, where there is no jury, we find it even less likely that the juvenile court judge would mistake Albin’s opinions for infallible truth.
In pressing their Kelly argument, the parents rely on In re Amber B., supra, 191 Cal.App.3d 682. There, the court held that “the practice of detecting child sexual abuse by (1) observing a child’s behavior with anatomically correct dolls, and (2) analyzing the child’s reports of abuse,” was “ ‘a new scientific process operating on purely psychological evidence’ ” and thus “subject to the Kelly-Frye test.” (Id. at p. 691, quoting People v. Shirley, supra, 31 Cal.3d at p. 53.) Significantly, however, Amber B. was decided before the California Supreme Court’s decision in Stoll. Moreover, its analysis relies heavily on People v. Bledsoe, supra, 36 Cal.3d 236. (Amber B., at pp. 687-688.) According to Amber B., “the decision in Bledsoe strongly suggests evidence of the sort admitted here and in Cheryl H. should be subject to Kelly-Frye.” (Id. at p. 688.) As explained in Stoll, however, Bledsoe is not amenable to such a broad reading. (Stoll, supra, 49 Cal.3d at p. 1161.)
In sum, to the extent that Albin gave an expert opinion finding Olivia’s behaviors suggestive of sexual abuse, the basis for her testimony is neither new nor scientific. For that reason, Kelly does not apply.
Beyond the Kelly aspect, there may be other admissibility issues concerning this evidence, at least to the extent that it may be analogized to evidence concerning child sexual abuse accommodation syndrome (CSAAS). In criminal cases, the established rule is that testimony concerning CSAAS “is inadmissible to prove that a molestation actually occurred.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) But such “testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation.” (Ibid., citing People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.)
4. Application to Olivia’s Chlamydia Test
The father also raises a Kelly challenge to the laboratory test, arguing that its reliability has not been demonstrated. More specifically, he characterizes the use of “a prepubescent vaginal sample, tested via Chlamydia Shell Vial Culture,” as unproven science presenting “a question of first impression in California.” The father also takes issue with the court’s failure to make preliminary findings of fact under Kelly. Alternatively, the father argues, even assuming the validity of the test itself, there is insufficient evidence linking the results to Olivia. In support of that argument, he claims a “lack of chain of custody” and “mishandling” of the slide containing the culture.
The Department disputes the father’s arguments. It asserts that the Kelly doctrine does not apply to the lab test results, because they are “not novel scientific evidence.” For their part, the children posit that the testimony in this case satisfies the Kelly test, since it demonstrates general acceptance of the test in the relevant scientific community.
As we now explain, we agree with the Department that the Kelly doctrine does not apply here, because the lab test does not represent a novel scientific technique.
a. Novelty
In our view, the shell vial culture process used to test Olivia’s sample for chlamydia is not new. As explained above, in that process, a culture obtained by swab is placed on a slide and examined under a fluorescing microscope for the presence of characteristic inclusions that indicate chlamydia. The test is performed by a human being, who forms an opinion based on observation.
This is not a case where “the evidence is produced by a machine” with the attendant risk that a lay fact-finder will ascribe “an inordinately high degree of certainty” to it. (People v. McDonald, supra, 37 Cal.3d at p. 372.) Put more colorfully: “This was not a case in which a magical device was unveiled to astound a gullible jury.” (People v. Cegers, supra, 7 Cal.App.4th at p. 999.)
Here, the only machine used was a microscope. Microscopic observation is not new to science or law. “Microscopes have long been accepted as scientifically reliable, and opinions given by a witness at trial based on his visual examination …, in addition to the witness’s own medical knowledge and observations, are admissible.” (People v. Pitts (1990) 223 Cal.App.3d 606, 865; cf. People v. Palmer (1978) 80 Cal.App.3d 239, 254 [“there appears to be a unanimity of scientific opinion regarding the value and reliability of the SEM [scanning electron microscope] for GSR [gunshot residue] particle analysis”].)
As reflected in the testimony of microbiologist Kahle, processing a chlamydia culture also involves the use of a refrigerator, a centrifuge, an incubator, and a biohazard hood, along with computer-generated labels. But the diagnosis itself is made using only “a fluorescent microscope” and human skills.
Other cases involving microscopic evidence bear this point out.
In People v. Pride, a criminalist “explained that he microscopically compared the crime scene [hair] specimen with the various samples to determine whether they were similar in length, shape, pigment, damage, and component structure.” (People v. Pride, supra, 3 Cal.4th at p. 238.) The high court concluded that the witness’s “method was not ‘new’…. Hair comparison evidence that identifies a suspect or victim as a possible donor has been routinely admitted in California for many years without any suggestion that it is unreliable under Kelly/Frye.” (Id. at p. 239.)
In People v. Mendibles, a prosecution expert in child sexual abuse “examined the victims’ external genitalia physically, both macroscopically using her naked eye and a high-powered and focused source of light and microscopically using a colposcope with 15-power magnification.” (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1294.) She “made both macroscopic findings and microscopic findings based on her observations and preserved her microscopic findings on stereoscopic slides for later study and examination.” (Id. at pp. 1294-1295.) The court rejected the defendant’s Kelly challenge to admission of this evidence, saying: “It is clear there was no novel device involved. The colposcope is an instrument in general use in the medical community which has value in detecting sexual abuse or rape, as acknowledged by defendant’s expert…. Even if the colposcope were not in general use, it does nothing more than provide binocular magnification of 15 power. In this sense, it is nothing more than a weak microscope — an instrument long accepted as scientifically reliable.” (Id. at p. 1295.) Nor did the prosecution expert’s “methodology involve the application of any new scientific technique. Her opinion was based entirely upon visual examination and the observations she made therein.” (Ibid.)
Here, too, only a microscope and expert observations were involved in establishing the chlamydia diagnosis. No new scientific method of proof was presented in this case. For that reason, no Kelly analysis was required.
b. Methodology
As noted above, the father also attacks the test results based on claims of improper protocol. He points to the testimony of his own expert witnesses that “violations in protocol and procedure committed by VMC with respect to Olivia’s sample significantly impact the reliability and interpretation of the test and would, in their separate opinions, cause the result to be read as negative, or at best unreliable and therefore requiring retesting.”
We reject that challenge. “That defense witnesses found fault with particular aspects of the test or thought the protocol could have been improved did not invalidate the testimony of the prosecution witnesses….” (People v. Axell (1991) 235 Cal.App.3d 836, 862.) Such arguments “go to the weight of the evidence, not its admissibility.” (People v. Cook, supra, 40 Cal.4th at p. 1345.)
Thus, for example, the fact that a witness “did not document all his work, took some inaccurate notes, did not conduct ‘blind’ testing, deviated from the lab protocol in some respects, and failed to respond to a coworker’s doubts about the accuracy of a test of blood on a carpet are all matters going to weight, not admissibility.” (People v. Cook, supra, 40 Cal.4th at p. 1346.) “Shortcomings such as mislabeling, mixing the wrong ingredients, or failing to follow routine precautions against contamination may well be amenable to evaluation by jurors without the assistance of expert testimony. Such readily apparent missteps involve ‘the degree of professionalism’ with which otherwise scientifically accepted methodologies are applied in a given case….” (People v. Venegas, supra, 18 Cal.4th at p. 81.) Any such lapses thus affect only the weight of the evidence. (Ibid.; cf. People v. Palmer, supra, 80 Cal.App.3d at p. 255 [witness’s “comparative inexperience with the method simply goes to the weight of his testimony, rather than its admissibility”].)
Based on the same reasoning, the father’s chain of custody arguments do not mandate exclusion of the laboratory evidence. “The rules for establishing chain of custody are as follows: The burden on the party offering the evidence is to show to the satisfaction of the trial court that … it is reasonably certain that there was no alteration. The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” (People v. Lucas (1995) 12 Cal.4th 415, 444, internal quotation marks and citations omitted.)
Here, the father claims that the slide admitted at trial “had no chain of custody or documentation associated with it – nothing tracking Olivia’s vaginal sample taken from her on July 11, 2005; nothing recording the manner in which Olivia’s sample was collected, handled, transported to VMC, received by the laboratory, tested, read, reviewed, or ultimately declared destroyed.”
The record belies that claim. Physician’s assistant Mary Ritter testified that she took a vaginal swab from Olivia and “put it in a medium for transport” to VMC. VMC senior lab assistant Rajul Kazi testified at length about how specimens are received, labeled, and handled at the lab. And senior microbiologist Janet Kahle explained in great detail the procedures that she used to track, test, and interpret the slide containing the culture.
The juvenile court found “the evidence to be compelling that the taking of the test, its handling, processing, analysis, review and conclusions were borne out by experts highly qualified in expertise, training and real-life experience.” Additionally, it “found the testimony of the lab personnel highly credible. The Court was not persuaded that the laboratory samples were confused. To the contrary, the Court is convinced there were sufficient checks on the entire process to insure the findings were reliable.” In making those findings, the court patently rejected the parents’ attacks on the chain of custody. Given the evidence, the court’s findings are warranted. (People v. Lucas, supra, 12 Cal.4th at p. 445 [finding no “strong claim that counsel would have prevailed in excluding the [evidence] on chain of custody grounds”]; cf. Geffcken v. D’Andrea (2006) 137 Cal.App.4th 1298, 1308 [trial court did not err in excluding evidence where chain of custody was not shown].)
In sum, we find no error in the court’s decision to admit the laboratory results. That decision is relevant to another challenge by the father, which we consider next.
C. Use of Statutory Presumption
According to the father, the juvenile court improperly relied on the special statutory presumption of section 355.1. In doing so, the father argues, the court erroneously shifted the burden of proof from the Department to the parents. The Department disputes the argument.
Section 355.1 provides in pertinent part as follows: “Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or
other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300.” (§ 355.1, subd. (a).) The statute operates on two presumed facts: (a) that the child suffered an injury (b) of a type that ordinarily does not occur in the absence of unreasonable parental conduct.
The statutory presumption is “one affecting the burden of producing evidence rather than the burden of proof. As such, it merely shifts to the parents the obligation of raising an issue as to the actual cause of the injury or the fitness of the home.” (In re James B. (1985) 166 Cal.App.3d 934, 937, fn. 2; § 355.1, subd. (c).) “The presumption only survives, however, until the parents or guardian(s) present rebuttal evidence as to either or both presumed facts. Where rebuttal evidence is offered, the presumption in no way relieves the court of its obligation to make factual findings as to the cause of the injury and the fitness of the home.” (James B., at p. 937; cf. In re Sheila B. (1993) 19 Cal.App.4th 187, 200, fn. 7 [“this presumption never came into play”].)
2. Application to This Case
Before announcing its ruling, the trial court explained that the proper standard of proof was by a preponderance of the evidence. The court further stated that it was “governed by section 355.1….” But because the court did not did not explicitly mention the statute thereafter, it is not clear that in fact it did apply the presumption. Nevertheless, the father devotes more than five pages of his brief to his contention that insufficient evidence supports its application. He argues: “There was no evidence presented that if Olivia had sexual contact that it occurred more than once. Nor was there evidence that either [father or mother] provided inadequate supervision or neglect. Since this prong of the 355.1 prima facie case is not supported by the evidence, the burden should never have been shifted to [father]. In the absence of this legal presumption, there was insufficient evidence on the record to support an independent basis for jurisdiction pursuant to … § 300 (d) and the findings must therefore be reversed.”
As we now explain, even assuming that the trial court in fact applied the statutory presumption, the father’s argument does not withstand scrutiny. Here, both of the necessary presumed facts underpinning the statutory presumption are present.
a. Injury
As just explained, the juvenile court properly admitted and considered the laboratory results showing that Olivia had chlamydia. The lab results constitute “competent professional evidence” of the injury to Olivia. (§ 355.1, subd. (a).) That evidence supports the first prong of the statutory presumption.
b. Parental Responsibility
The father asserts the lack of sufficient evidence that the parents were responsible for Olivia’s injury. He relies on In re Esmeralda B. (1992) 11 Cal.App.4th 1036. In that case, the appellate court reversed the jurisdictional and dispositional orders, finding no evidence to support them. (Id. at p. 1038.) One issue in the case was the juvenile court’s reliance on the statutory presumption of section 355.1. (Id. at pp. 1040, 1042, 1043.) In analyzing that issue, the court took a two-step approach. (Id. at pp. 1040, 1041.)
In the first step of its analysis, the Esmeralda B. court explained that there was no basis for applying the statutory presumption, given the lack of evidence that “the single incident, even if a sexual molest, was such that ordinarily it does not occur except as a result of unreasonable or neglectful acts of either parent.” (In re Esmeralda B., supra, 11 Cal.App.4th at p. 1041.) As the court pointed out: “Esmeralda was a second grade student and was not always under the direct observation of her parents and, on these facts, there is nothing about a single incident of sexual molest which suggests it ordinarily would not have occurred except for inadequate parental supervision or neglect.” (Ibid.)
Secondly, the court said, “even had there been evidence to establish the predicate for the presumption,” it had been rebutted by the Department’s own evidence. (In re Esmeralda B., supra, 11 Cal.App.4th at p. 1041.) That evidence included the fact that the child did not exhibit any “emotional or psychological traits commonly observed in children who have been sexually abused.” (Ibid.) The rebuttal evidence also showed that the parents had reacted appropriately. (Id. at pp. 1043-1044.)
The case before us is factually distinguishable from Esmeralda B. as to both analytic prongs, (i) facts supporting the presumption, and (ii) evidence to rebut it.
(i) Factual Predicate:
First, in assessing the factual predicate for the presumption, the court in Esmeralda B. relied heavily on the fact that – at most – a “single incident” of molestation had occurred. (In re Esmeralda B., supra, 11 Cal.App.4th at p. 1041.) In this case, by contrast, Olivia had been exhibiting sexualized behaviors for several years. That evidence supports a reasonable inference that the sexual abuse here was not an isolated incident. As Dr. Catherine Albin testified, “there are many aspects of Olivia’s behavior that in the context of knowing that there is a sexual encounter that resulted in a transmission of a sexually transmitted disease that became more provocatively consistent with evidence of abuse. … But masturbation in conjunction with a child who has got other developmental problems, emotional issues, and a sexually transmitted disease becomes a more relevant finding, much more likely suggesting that instead of a single sexual encounter that there may have been many, especially as this behavior has been noted over years.”
Nor was it necessary that the juvenile court “find, or be able to find from the evidence, who specifically was sexually abusing the child, before it could find the allegations of the petition to be true.” (In re Christina T. (1986) 184 Cal.App.3d 630, 640; cf. In re Kenneth M. (2004) 123 Cal.App.4th 16, 21 [perpetrator of physical abuse need not be identified to warrant bypass of reunification services under § 361.5, subd. (b)(5)].) The existence of nonaccidental injury alone suffices. Thus, for example, in a case involving physical abuse, the court found sufficient evidence that the minor’s injuries, which were “ ‘consistent with shaken child syndrome … would not ordinarily occur except as the result of unreasonable and/or neglectful acts or omissions by minor’s parents.’ ” (In re Richard H. (1991) 234 Cal.App.3d 1351, 1358.) This was so, despite the father’s assertion that “there was no evidence as to how [the minor] was injured….” (Id. at p. 1363.) In the court’s view, the doctor’s “testimony about the nature of [the minor’s] two independent head injuries as nonaccidental was prima facie evidence that he was a person described by section 300; a presumption which was not rebutted by appellant.” (Ibid.)
(ii) Rebuttal:
The statutory presumption was not rebutted here. This is in contrast to the Esmeralda B. case, which featured two categories of rebuttal evidence. This case is distinguishable from Esmeralda B. as to both.
First, the two cases differ on the question of behavioral evidence.
In Esmeralda B., the record lacked any evidence of the “emotional or psychological traits commonly observed in children who have been sexually abused.” (In re Esmeralda B., supra, 11 Cal.App.4th at p. 1041.)
The same is not true here. In this case, Olivia exhibited sexualized behaviors.
Additionally, the parents’ reactions are strikingly dissimilar in the two cases.
In Esmeralda B., the parents acted properly by “seeking immediate medical attention for Esmeralda, cooperating with the treating and clinical physicians and various social workers investigating the cause of injury and their family history, investigating the possibility that a molestation may have occurred by some member of their extended family, seeking independent expert medical advice from a qualified pediatrician, Dr. Diamond, who concluded Esmeralda’s injury was consistent with one likely to have resulted from the bicycle accident documented by Esmeralda and several witnesses, providing prompt therapy for Esmeralda at their own expense when the proceedings began, and cooperating fully with the Department and Esmeralda’s counsel at all times.” (In re Esmeralda B., supra, 11 Cal.App.4th at pp. 1043-1044.)
Here, by contrast, in assuming jurisdiction, the juvenile court recounted “the parents’ reaction to the call from CPS, to hire an attorney who defends sex abuse cases” and who subjected Olivia to a forensic interview “by three strangers in a law office conference room with tape recorders running.” The court also cited the father’s actions in “keeping Olivia out of school to avoid being taken into custody by CPS.” Additionally, the court noted the parents’ decision to “take Olivia for examination with a doctor that she had not seen for four years,” who prescribed “yet another psychotropic drug for the eight-year-old” without consulting the child’s regular pediatrician, and who “failed to perform lab tests or swab Olivia for cultures.” The court also was “dumbfounded” by the parents’ response to the removal of their sons – going to a friend’s home, a computer store, and a restaurant rather than returning home – characterizing it as “bizarre and perhaps incriminating.”
c. Conclusion
In this case, there was an adequate factual predicate for applying the statutory presumption of section 355.1, even in the absence of explicit trial court findings. (Cf. e.g., Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793 [implied finding supported custody award but evidence did not support finding].) The parents failed to rebut the presumption.
More importantly, we need not and do not rest our affirmance on the application of section 355.1. Quite apart from the statutory presumption, the record before us contains sufficient evidence to support jurisdiction, as we explain next.
D. Sufficiency of the Evidence
1. Appellate Review
Where the issue on appeal is the sufficiency of the evidence to support the juvenile court’s jurisdictional findings, we “review the record to determine whether there is any substantial evidence, contradicted or not, which supports the court’s conclusions.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) When the facts in evidence give rise to more than one reasonable inference, we will not substitute our determination for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) “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.) Furthermore, in assessing the sufficiency of the evidence, we review the record as a whole. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.) Any given fact “must be viewed in the context of the entire record” on appeal. (Id. at p. 1826.)
“Issues of fact and credibility are questions for the trial court.” (In re Kristin W. (1990) 222 Cal.App.3d 234, 251.) “We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses.” (In re Sheila B., supra, 19 Cal.App.4th at p. 199.) “It is not an appellate court’s function, in short, to redetermine the facts.” (Id. at p. 200.)
“The juvenile court’s judgment is presumed to be correct, and it is appellant’s burden to affirmatively show error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) The appellant thus must demonstrate the lack of sufficient evidence to support the order. (Id. at p. 414.) As we now explain, the parents have failed to do so here.
2. Evidence Considered in this Appeal
In this case, three broad categories of evidence support jurisdiction: Olivia’s chlamydia diagnosis; her sexualized behaviors; and the parents’ reaction to the Department’s investigation.
The parents urge us to disregard large portions that evidence. The father asserts that we should not consider the laboratory results showing chlamydia. The mother would have us ignore evidence provided by social worker Letona, which encompasses much of the evidence comprising the other two categories. Neither parent’s position has merit.
According to the father, absent the evidence that he challenged as unreliable, the jurisdictional findings cannot be supported. His challenge to the evidence is insupportable. As explained above, the juvenile court did not err in admitting the lab results. “The role of the reviewing court is not to reverse judgments where they may have been based in part on excludable evidence. Rather, the duty of the reviewing court is to strip away the inadmissible evidence and ask whether enough admissible evidence remains to sustain the court’s finding.” (In re Christina T., supra, 184 Cal.App.3d at p. 639.)
According to the mother, “the social worker had great bias against the parents.” Using that premise as a springboard, the mother asks us to assess the jurisdictional findings “without the benefit of the social worker’s opinion in this case.” With that evidence removed from the equation, the mother contends, there is “no basis for a jurisdictional finding.”
“In essence, her argument is a challenge to the objectivity and credibility of the social workers….” (In re S.C., supra, 138 Cal.App.4th at p. 415.) “Relying upon … what she views as the more persuasive evidence presented by defense witnesses, counsel claims there was ‘no support’ for the juvenile court’s findings.” (Ibid.) That assertion violates “the fundamental rule that an appellate court does not reassess the credibility of witnesses or reweigh the evidence.” (Ibid.)
Here, the juvenile court did not share the mother’s view of the social worker’s evidence. By formal order entered in November 2005, the court admitted all five of the Department’s reports. It acted properly in doing so. Such reports are admissible and competent evidence to support jurisdiction. (§ 355.) The Department is mandated by statute to prepare them. (In re Ashley M. (2003) 114 Cal.App.4th 1, 7.) And those reports “are prepared by disinterested parties in the regular course of their professional duties. These elements of objectivity and expertise lend them a degree of reliability and trustworthiness….” (In re Malinda S. (1990) 51 Cal.3d 368, 377.)
Rejecting the parents’ arguments, we shall consider all the evidence admitted by the juvenile court.
3. Evidence Supporting Jurisdiction over Olivia
The statute authorizes jurisdiction where a child “has been sexually abused … by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.” (§ 300, subd. (d), italics added.) Because there was no finding that a household member abused Olivia, we apply the second part of section 300, subdivision (d).
The evidence adduced at the lengthy jurisdictional hearing in this case has been described in detail above; a brief summary will suffice here. The evidence supports the determination (a) that Olivia was sexually abused, and (b) that her parents failed to protect her from the abuse.
a. Olivia’s sexual abuse
The evidence properly admitted at trial supports the juvenile court’s finding that Olivia was sexually abused.
That finding can be affirmed based on the chlamydia diagnosis alone. As Kahle and Hamilton testified, Olivia’s specimen was positive for chlamydia. According to Ritter’s testimony, there is no explanation for chlamydia in a prepubescent child other than sexual contact. Ritter stated: “There is no science that you can get chlamydia any other way except by sexual contact.” Other witnesses likewise offered testimony irrefutably tying chlamydia to sexual contact, including Drs. Albin and Melkonian. Sexual contact with an eight year old constitutes abuse. (Cf. People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1620 [sexual contact with a minor is criminal].)
In addition to the fact that Olivia was diagnosed with a sexually transmitted disease, the juvenile court also had before it other evidence suggesting abuse, including Olivia’s behaviors and certain reactions by the parents to the Department’s investigation. The juvenile court thus was “persuaded by not one piece of evidence” but rather by “the total package” of facts and circumstances showing that Olivia had been sexually abused.
Taken as a whole, the foregoing evidence is substantial.
b. The parents’ failure to protect
The record also supports the juvenile court’s implied finding that the parents were neglectful in failing to protect Olivia from the sexual abuse.
As explained above, the evidence in this case supports an inference that the abuse was not an isolated incident. According to Albin’s testimony, “instead of a single sexual encounter that there may have been many, especially as this behavior has been noted over years.” That inference in turn supports a finding of parental neglect, for failure to protect Olivia from repeated sexual abuse over time. “The fact that some inference other than that which has been drawn by [the trier of fact] may appear to an appellate tribunal to be the more reasonable, affords no sufficient reason for disturbing the inference in question.” (Hamilton v. Pacific Elec. Ry. Co. (1939) 12 Cal.2d 598, 602-603.)
Additionally, other evidence supports the inference that the parents “knew or reasonably should have known that the child was in danger of sexual abuse.” (§ 300, subd. (d).) For one thing, Olivia had a significant history of masturbation, going back at least as early as kindergarten. School officials brought this behavior to the parents’ attention. There was evidence that the masturbation constituted sexualized behavior.
Despite this history, the evidence suggests, the father failed to exercise caution in his physical interactions with Olivia and the mother did nothing to intervene. For example, the parents had a “custom” of keeping doors unlocked in the house. As a result, Olivia “occasionally” walked in on her father while he was naked. In January or February of 2005, Olivia undressed and climbed into the bathtub with the father while he was bathing. The mother was home at the time, suggesting that she was aware of the incident.
Here, the court made an implied finding that the abuse “ ‘would not ordinarily occur except as the result of unreasonable and/or neglectful acts or omissions by minor’s parents.’ ” (In re Richard H., supra, 234 Cal.App.3d at p. 1358; cf. In re Esmeralda B., supra, 11 Cal.App.4th at p. 1041.) The evidence supports that finding.
In sum, this record provides no basis for overturning the jurisdictional findings concerning Olivia.
4. Evidence Supporting Jurisdiction over Olivia’s Siblings
Section 300, subdivision (j), comes into play when a sibling’s abuse or neglect places another child in the family at substantial risk. “Sexual abuse of one’s sibling can support a trial court’s determination that there is substantial risk to the remaining siblings.” (In re Rubisela E. (2000) 85 Cal.App.4th177, 197 [finding risk to female victim’s sister, though not to her brothers].) As the Rubisela C. court said: “We do not discount the real possibility that brothers of molested sisters can be molested … or in other ways harmed by the fact of the molestation within the family.” (Id. at p. 198.)
Contrary to the parents’ arguments, there was evidence in this case that Olivia’s two younger brothers were at risk for sexual abuse. As social worker Letona testified: “If one child is at risk, the other child is at risk.” Nor does “the fact that Olivia is female and [her siblings] are males” make any difference. “In fact, these two boys would probably be at even more heightened risk because you have an autistic child that would not be able to communicate if something happened to him, and then you have a preverbal child that could not communicate if something happened to him.” As reflected in the social worker’s testimony, both boys are vulnerable to abuse. That evidence supports jurisdiction over Olivia’s two brothers.
E. Bias and Due Process Claims
Both parents also assert judicial bias and a consequent deprivation of their constitutional due process rights. In addressing those assertions, we first summarize the relevant principles of law. We then apply them to the facts of this case.
1. Legal Principles
Litigants have “a due process right to an impartial trial judge under the state and federal Constitutions.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76; see also, e.g., Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another point by Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349; Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 245.) That right extends not only to criminal defendants but to civil litigants as well. (People v. Scott (1997) 15 Cal.4th 1188, 1206.)
Bias may be shown where, for example, “a judge reveals preconceived ideas based on stereotypes.” (Hall v. Harker, supra, 69 Cal.App.4th at p. 843 [bias against attorneys]; see also, e.g., In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1499 [gender bias].) On the other hand, as the California Supreme Court has explained: “Mere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias.” (People v. Guerra, supra, 37 Cal.4th at p. 1111.)
“A judge’s impartiality is evaluated by an objective, rather than subjective, standard.” (Hall v. Harker, supra, 69 Cal.App.4th at p. 841.) The question is whether a reasonable person “would entertain doubts concerning the judge’s impartiality.” (Ibid., internal quotation marks omitted.) On appeal, we undertake a “review of the record” to determine whether the appellant “was deprived of his constitutional right to a fair and impartial tribunal.” (People v. Guerra, supra, 37 Cal.4th at p. 1112.) Our task is to “assess whether any judicial misconduct or bias was so prejudicial that it deprived [the appellant] of a fair, as opposed to a perfect, trial.” (Ibid.,internal quotation marks omitted.) Reversal is required where judicial bias made it “ ‘impossible for [a party] to receive a fair trial.’ ” (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 245; In re Marriage of Iverson, supra, 11 Cal.App.4th at p. 1499.)
2. Application
Here, the mother argues, she was deprived of due process by the court’s bias in favor of the Department. The father makes a similar argument, asserting that the juvenile court’s apparent bias against him constitutes prejudicial error requiring reversal. The Department disagrees, contending that the court’s decisions were not the result of bias but instead were based on appropriate considerations, including reasoned admissibility determinations and justifiable credibility assessments.
a. Admissibility Determinations
As extensively discussed above, the juvenile court properly decided the parents’ challenges to admissibility of the evidence. Those determinations thus do not support the parents’ bias claims.
b. Credibility Assessments
At the conclusion of the long jurisdictional trial, the juvenile court provided lengthy commentary on the evidence. Among other things, the court made explicit credibility assessments.
Generally speaking, the court was persuaded by the Department’s witnesses. It “found the witnesses from the school to be generally credible.” The court rejected the parents’ theory “that a unified group of school personnel engaged in the wholesale, orchestrated manufacturing of oral and written evidence.” The court likewise found “Social Services personnel were credible in their actions and testimony.” The court also “found the testimony of the lab personnel highly credible.” In fact, the court stated: “All of the experts testifying for Petitioner were impressive, thoughtful, and consistent throughout their testimony and extensive cross-examination.”
By contrast, the court found the parents’ witnesses less credible. The court described the parents’ medical experts as “far less qualified, if qualified at all, and their confirmatory bias apparent. An exception to that statement is Dr. Joseph at Kaiser, whom [the court] found to be credible. But, she did not obtain the culture or perform the chlamydia test at issue here.” Referring to Melkonian’s statements about Olivia’s medical examination, the court said: “Her testimony was startling because it essentially says that Mary Ritter palmed off fake photographs. Why would Mary Ritter send to Dr. Melkonian photographs allegedly so contrived on their face? It is not a credible position.” As to witnesses Rand and Shapiro, they “were not credible to the Court. Considering their public and self-proclaimed affiliation as a team representing those accused of sexual abuse and their track record and advertisement of being on the Defense side, could it be both of them suffered their own version of confirmatory bias? At the least, any claim of objectivity as to these individuals is without merit.” The court went on at greater length about his reasons for discounting the testimony of those two witnesses.
Concerning the parents themselves, the court “gave them every benefit of the doubt because this entire experience is certainly traumatic for them.” The court found the mother “to be articulate and intelligent. But her education and professional background as a registered nurse … makes some of her actions strange, if not inexplicable.” Among those actions was the decision to have Olivia examined by Dr. Waggoner. The court “found much of father’s testimony to be not credible.” The court specifically cited his reactions to the Department’s investigation as “not probative of a parent most concerned about the welfare of his child.”
As explained above, such credibility determinations “are questions for the trial court.” (In re Kristin W., supra, 222 Cal.App.3d at p. 251; see also, e.g., Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
In this case, the court’s observations about the witnesses and other evidence were articulate, thoughtful, and based on the evidence adduced during the trial. They do not support the parents’ bias claims. A trial judge’s “expressions of opinion … based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias.” (People v. Guerra, supra, 37 Cal.4th at p. 1111.)
c. Parents’ Exercise of Constitutional Rights
In pressing their bias and due process claims, the parents also accuse the juvenile court of drawing improper negative inferences from their exercise of constitutional rights. According to the father, the court was prejudiced against the parents because they asserted their right to contest jurisdiction. According to the mother, the court was prejudiced against them because they retained counsel immediately, at the outset of the Department’s investigation.
We disagree. As explained above, the juvenile court rested its decision on the evidence properly before it, including certain aspects of the parents’ reaction to the Department’s investigation. That particular evidence was relevant. (See, e.g., In re Esmeralda B., supra, 11 Cal.App.4th at pp. 1043-1044.) Nor are we persuaded by the parents’ specific assertions of bias, as we now explain.
As discussed above, the juvenile court did not rely solely on the parents’ decision to “hire an attorney who defends sex abuse cases.” Rather, it cited other aspects of their reaction to the Department’s investigation, including their actions in “keeping Olivia out of school to avoid being taken into custody by CPS”; their acquiescence in subjecting the child to a forensic interview “by three strangers in a law office conference room with tape recorders running”; the parents’ decision to “take Olivia for examination with a doctor that she had not seen for four years,” who prescribed “yet another psychotropic drug for the eight-year-old” without consulting the child’s regular pediatrician, and who “failed to perform lab tests or swab Olivia for cultures”; and their “bizarre” response to the removal of their sons.
We first address the father’s bias claim, which posits that the court punished the parents for their decision to contest jurisdiction. In its extensive comments from the bench at the conclusion of the jurisdictional hearing, the court did make some arguably ill-advised statements, which could be interpreted as an improper attack on the parents’ defense. The court thus remarked: “A reasonable inference … is that the parents were advised to follow a classic criminal strategy. That strategy is as follows: Say nothing, stand on your rights, including Fifth Amendment rights, make the Prosecution prove its case, you gain nothing by cooperating a being a good guy, the best defense is a good offense.” The court continued: “While all of this may be good advice in the right case, in this context there is a profound downside…. Namely, that a strong negative perception would be created by this approach which, when taken together with other circumstantial evidence in this case, would tip the scales to favor jurisdiction by the Court.” Standing alone, that comment may be viewed as misguided. But it did not stand alone. The remark was immediately followed by the judge’s summary of other facts supporting jurisdiction, including Olivia’s statements and drawings, described as “powerful evidence to the Court.” The court then remarked that it was persuaded by the “total package” of evidence, not any single aspect of it. Thus, taken in context, the court’s commentary about the parents’ perceived strategy of standing on their rights does not demonstrate judicial bias.
We next consider the mother’s specific bias argument, which rests on her claim that the juvenile court held their decision to hire an attorney against the parents. We agree that the parents’ decision to seek counsel – in and of itself – should not be used against them. We acknowledge the importance of counsel in dependency proceedings, particularly when the Department makes allegations that could lead to criminal charges against the parents. As case law recognizes, “a parent has a constitutional right to counsel at some stages of [dependency] proceedings.” (In re O. S. (2002) 102 Cal.App.4th 1402, 1407; see also, In re Sade C. (1996) 13 Cal.4th 952, 982, 984; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1153, fn. 6, citing Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31-32.) The juvenile court’s determination here does not offend that general principle, as we now explain.
In this case, the court did not did not penalize the parents for being represented from the start. Rather, as a reading of the full transcript discloses, the court was troubled by their decision to retain an attorney whose practice emphasizes criminal defense of sexual molestation cases. That nuance is significant, given the court’s explicit factual determination that emergency social worker Ramirez “did not use the word ‘sexual’ in [her initial] conversation” with the father. Viewed in that context, there is no evident bias; there is only a permissible negative inference from the parents’ decision to consult an attorney with Clancy’s particular specialty, given the facts of this case as the court determined them. (People v. Guerra, supra, 37 Cal.4th at p. 1111.)
In sum, the court’s consideration of this evidence demonstrates neither bias nor a due process violation.
3. Conclusion
Having reviewed the record using an objective standard, we find no reason to doubt “the judge’s impartiality.” (Hall v. Harker, supra, 69 Cal.App.4th at p. 841.) We therefore conclude that the parents were not “deprived of [their] constitutional right to a fair and impartial tribunal.” (People v. Guerra, supra, 37 Cal.4th at p. 1112.)
III. Disposition
The parents also complain that the juvenile court erred in removing Olivia and her two younger brothers from their custody and care. To establish the proper framework for assessing those claims, we summarize the relevant principles of law.
A. Legal Principles
1. Statutory Requirements
Among the permissible dispositional choices is removing the child from the parent’s physical custody. (§ 361.) To justify removal, the juvenile court must have clear and convincing evidence both that there is a substantial danger to the child’s physical well-being and that there is no reasonable way to protect the child in the parent’s home. (Id., subd. (c)(1); see, e.g., In re Isayah C. (2004) 118 Cal.App.4th 684, 695; In re Jasmine G. (2000) 82 Cal.App.4th 282,288; In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “California law requires that there be no lesser alternative before a child may be removed from the home of his or her parent.” (In re Jasmine G., at p. 284, fn. omitted.)
As its language suggests, “the bias of the controlling statute is on family preservation, not removal.” (In re Jasmine G., supra, 82 Cal.App.4th at p. 290.) In fact, “there is a statutory presumption the child will be returned to parental custody.” (In re Michael D. (1996) 51 Cal.App.4th 1074, 1086.)Removal “is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.)
2. Standard of Review
Generally speaking, the juvenile court “has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. We cannot reverse the court’s determination in this regard absent a clear abuse of discretion.” (In re Christopher H., supra, 50 Cal.App.4th at p. 1006, citations omitted; In re Javier G. (2006) 137 Cal.App.4th 453, 462.)
Where removal from parental custody is at issue, however, the appellate review standard is somewhat less deferential. That is because the juvenile court’s findings in support of removal require clear and convincing evidence. (§ 361, subd. (c); see, In re Henry V., supra, 119 Cal.App.4th at p. 530; In re Kristin H., supra, 46 Cal.App.4th at p. 1654.) “This heightened burden of proof is appropriate in light of the constitutionally protected rights of parents to the care, custody and management of [their] children.” (In re Henry V., at p. 529.) “Due process requires the findings underlying the initial removal order to be based on clear and convincing evidence.” (Id. at p. 530.) “On review, we employ the substantial evidence test, however bearing in mind the heightened burden of proof.” (In re Kristin H., at p. 1654.)
With due regard for the higher proof standard, we nevertheless view the record in the light most favorable to the challenged order, drawing all reasonable inferences in support. (In re Javier G., supra, 137 Cal.App.4th at p. 463.) The appellant has the burden of demonstrating error. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.) We those principles in mind, we consider the dispositional order here.
B. Analysis
1. The Necessity for Removal Here
Consistent with the statutory requirements of section 361, we examine the evidence presented below to see whether it reveals both the existence of substantial danger to the children and the absence of less drastic alternatives for protecting them.
a. Substantial Risk of Harm
As interpreted in the relevant case law, the statute requires “a threat to physical safety, not merely emotional well-being, in order to justify removal.” (In re Isayah C., supra, 118 Cal.App.4th at p. 698, and cases cited therein.) “The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate.” (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) “There must be at least some threat of actual physical harm, however, not simply a threat to a child’s emotional well-being, in order to justify removal … under … § 361(c)(1).” (Abbott, et al., Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2008 update), Disposition, § 5.23, p. 285.)
Assessing the record under this standard with due regard for the heightened standard of proof, we find sufficient evidence to support the juvenile court’s determination that there was a risk of substantial harm. That evidence came in through the testimony of social worker Letona, who expressed several concerns about recommending a return home.
One of the social worker’s concerns was Olivia’s lack of boundaries with her father. In part, that concern arose from the parents’ supervised visits with Olivia, in which “Olivia will often sit on her father’s lap while she is visiting.” Once, the girl laid down “on the couch next to her father and placed her head on his lap and while gazing into his face indicated that she really missed doing that.” During a visit, “the father kissed Olivia on her neck and on another occasion, he kissed her on her ear.” Recalling testimony in the jurisdictional trial about “the violation of boundaries and how that impacted children, particularly victims of sexual abuse,” the social worker testified that the father’s behavior in the visits indicated that he had not “integrated any of the testimony in regards to Olivia’s boundaries” as there had been “no change” in his physical interactions with her. The social worker described those interactions in testimony as “the type of intimacy that would see more between adults, lovers, not father and daughter type intimacy.” The Department’s disposition report summarizes the issue as follows: “Based on the interactions between Olivia and her father during the visits, it appears that Olivia sexualizes her father and either he is reciprocating this sexualized behavior or he is absolutely oblivious to the inappropriate nature of his relationship with his daughter.” Moreover, in the social worker’s opinion, the mother needed to curb Olivia’s lack of boundaries, which she had not been doing.
Another concern was the parents’ admitted lack of knowledge about how to protect Olivia from further molestation in the future. As stated in the disposition report, both parents “appear to be at a loss as to how to protect their children from future sexual abuse and neither one of them can articulate how they placed their daughter at risk for sexual molestation in the first place. It is unfortunate that a perpetrator has not been identified, as this still leaves open the possibility that Olivia’s father sexually molested her.” In argument at the close of the dispositional hearing, the Department’s counsel conceded that both the father and the mother were loving parents, but she nevertheless expressed the need for the parents to reach an understanding about “why this happened in their home and what they can do to protect the children.”
The foregoing evidence from the social worker demonstrates the risk of future harm from sexual abuse. It therefore satisfies the initial statutory requirement of “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor” in the event of a return home. (§ 361, subd. (c)(1).)
b. Availability of Less Drastic Measures
The second prong of the statute calls for consideration of alternatives. “Section 361 requires that there be ‘no reasonable means’ of preventing removal.” (In re Jasmine G., supra, 82 Cal.App.4th at p. 293.) Contrary to the parents’ assertions on appeal, that requirement likewise is met here.
As reflected in the statute and in the relevant case law, a range of less drastic alternatives may be available in a given case. One example is a return to parental custody “under stringent conditions of supervision by the welfare department….” (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) In such cases, “unannounced visits and public health nursing services [are] potential methods of supervising an in-home placement.” (In re Henry V., supra, 119 Cal.App.4th at p. 529.) Where only one parent is the offender, separation may be a less drastic alternative to removal. (§ 361, subd. (c); see In re S.C., supra, 138 Cal.App.4th at p. 416; see generally, Abbott, et al., Cal. Juvenile Dependency Practice, supra, Disposition, § 5.24, pp. 286-287.)
Here, during the dispositional hearing, the juvenile court explicitly addressed the question of options for keeping the children in the home, saying “at this stage what is most relevant to the Court is what steps are available, what alternatives are available, why certain alternatives are inappropriate or appropriate.” (Cf. In re Henry V., supra, 119 Cal.App.4th at p. 529 [“the court did not mention the existence of alternatives to out-of-home placement”].) Social worker Letona discussed wrap-around services, explaining that they are not available in cases of this type. She also testified about family maintenance services, which typically entail monthly home visits, though weekly visits could be scheduled if court ordered. But the social worker recommended against family maintenance services in this case, in part based on the parents’ lack of explanation for Olivia’s chlamydia diagnosis, which signals inability to protect in the future. In her view, the provision of family maintenance services presumes that the parents already have the ability to protect the children.
The foregoing evidence comports with the statute’s second requirement that “there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the … parents’ … physical custody.” (§ 361, subd. (c)(1); cf. In re S.C., supra, 138 Cal.App.4th at p. 416 [finding “clear and convincing evidence that no reasonable means of protecting the minor existed if she were to remain in her mother’s home, where the stepfather continued to reside” since “the juvenile court reasonably could find that home supervision was inadequate to safeguard the minor from the molesting stepfather due to appellant’s failure to recognize the danger that he posed”].)
2. The Court’s Findings
Here, at the conclusion of the dispositional hearing, the court took the matter under submission without making oral findings. The court stated its intent to make its decision “as quickly as possible.” The court entered a formal order the next day, January 12, 2006. In it, the court finds by clear and convincing evidence that removal is required. The order states that there is a substantial risk of physical harm to the children, specifically the risk of sexual abuse. It also states: “Reasonable efforts have been made to prevent removal.”
Characterizing the court’s findings as inadequate, the parents contend that the court “failed to make a record” of its reasons for refusing to return the children, as required by court rule. (Cal. Rules of Court, rule 5.695(g)(1).) The cited portion of the rule provides: “If a child is removed from the physical custody of the parent or guardian under either section 361 or 361.5, the court must: [¶] (1) State the facts on which the decision is based….” (Ibid.)
We reject the parents’ argument. In our view, the findings are adequate. They reflect the court’s determination that Olivia was “sexually abused, … and there are no reasonable means by which the children can be protected from further sexual abuse” short of removal. In this case, “a reading of the entire record convinces us the court was well aware of its responsibilities at the dispositional phase and the findings and conclusions made discharged those responsibilities.” (See In re Stephen W. (1990)221 Cal.App.3d 629, 645 [findings sufficient to support disposition order].)
In any event, even in the face of inadequate findings, reversal is not justified where the error is harmless. “Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody.” (In re Diamond H., supra, 82 Cal.App.4th at p. 1137; see also, e.g., In re Jason L. (1990) 222 Cal.App.3d 1206, 1218, and cases cited therein; cf. In re Basilio T. (1992) 4 Cal.App.4th 155, 171 [“error cannot be deemed harmless because there were less drastic alternatives to removal”].)
Here, any error in failing to explicitly articulate and reject less drastic options is harmless. The juvenile court implicitly determined that the risk of physical harm to the children was too great to leave them in their parents’ custody with in-home services, a determination that finds adequate support in this record.
SUMMARY OF CONCLUSIONS
The juvenile court did not err in admitting the challenged evidence. That evidence supports the court’s assumption of jurisdiction over Olivia and her siblings. The court’s dispositional order is also supported by substantial evidence and adequate findings. There is no basis for reversal.
DISPOSITION
The order is affirmed.
I CONCUR: Duffy, J.
RUSHING, P.J., DISSENTING.
I disagree with my colleagues’ conclusion that the juvenile court properly assumed jurisdiction over Olivia and her brother. Therefore, I respectfully dissent.
The court assumed jurisdiction over Olivia under Welfare and Institutions Code section 300, subdivision (d) (hereafter section 300(d)) based on findings that Olivia had been sexually abused and her parents unreasonably failed to protect her from that abuse. My colleagues uphold these findings on two grounds. First, they rely on section 355.1 and an unrebutted presumption that Olivia’s injury—i.e., her infection with chlamydia—was not the sort of injury that a child would ordinarily suffer unless his or her parents were negligent. Second, they find there is substantial evidence to support a finding that Olivia’s parents negligently failed to protect her from sexual abuse.
All unspecified statutory references are to the Welfare and Institutions Code.
As I explain below, section 355.1 is inapplicable, and there is insufficient evidence to support a finding that Olivia’s parents were negligent.
Section 355.1
Section 355.1 provides, in pertinent part, “(a) Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300.”
In In re Sheila B. (1993) 19 Cal.App.4th 187 (Shiela B.), the juvenile court did not make a finding that the minor’s injury ordinarily would not occur in the absence of parental negligence. On appeal, the Santa Clara County Department of Family and Children’s Services (Department) argued that medical evidence concerning the minor’s injury was sufficient to trigger the statutory presumption. However, this court concluded that “[s]ince the juvenile court never made the finding required by this section, this presumption never came into play.” (Id. at p. 200, fn. 7.) Such is the case here. The record does not reveal that the juvenile court made the required finding. Indeed, my colleagues concede that the record does not clearly establish that the court even relied on the presumption.
My colleagues assert, however, that the court implicitly made the required finding, and they further conclude that this finding is supported by substantial evidence. Even assuming that the court made an implied finding, I do not agree that the record supports it.
The required finding has two elements, both of which must be based on “competent professional evidence.” (§ 355.1, subd (a).) The court must find that (1) the minor suffered an injury or detrimental condition; and (2) the minor’s injury was the sort that would not ordinarily occur in the absence of parental negligence.
A review for substantial evidence is a simple and straightforward process, and my colleagues’ analysis starts out fine. They assert, and I agree, that the laboratory test results constitute “competent professional evidence” that Olivia contracted chlamydia—i.e., suffered an injury
The next logical step would have been to see if there was competent professional evidence that contracting chlamydia is not the sort of injury a young girl would suffer in the absence of parental negligence. At this point, however, my colleagues veer off course and focus instead on In re Esmeralda B. (1992) 11 Cal.App.4th 1036 (Esmeralda B.).
Even then, Esmeralda B. should have led them to conclude that section 355.1 is inapplicable. In that case, the minor suffered genital injuries. Her doctors disbelieved the minor and her parents’ story that she had fallen off her bike, and, suspecting sexual abuse, they reported her injuries to the authorities, who filed a dependency petition. At the jurisdictional hearing, the minor denied any molestation and reiterated that she had fallen off her bike. The social worker, who had investigated the incident and interviewed the minor, testified that the minor’s injury was not the result of any unreasonable or neglectful acts or omissions by the parents, and she could not think of anything they could have done to prevent it. Because there was no evidence suggesting that the minor’s injuries were the result of parental neglect or wrongdoing, the juvenile court relied on the presumption in section 355.1 that the minor’s type of injury would not ordinarily occur in the absence of parental negligence, found that the parents had failed to rebut it, and assumed jurisdiction. (Esmeralda B., supra, 11 Cal.App.4th at pp. 1038-1040, 1043, fn. 3.)
On appeal, the court held that section 355.1 was inapplicable. The court explained that “no professional or other person testified the single incident, even if a sexual molest, was such that ordinarily it does not occur except as a result of unreasonable or neglectful acts of either parent. Esmeralda was a second grade student and was not always under the direct observation of her parents and, on these facts, there is nothing about a single incident of sexual molest which suggests it ordinarily would not have occurred except for inadequate parental supervision or neglect.” (Esmeralda B., supra, 11 Cal.App.4th at pp. 1040-1041, italics added.)
Here, too, Olivia was a young girl who went to school during the week, and therefore, was not always under her parents’ exclusive care and supervision. Moreover, there is no evidence she was under their exclusive care and supervision on weekends. More importantly, the Department presented no evidence, let alone “competent professional evidence” (§ 355.1, subd. (a)), that an eight-year-old school-age girl would not ordinarily contract chlamydia unless her parents were negligent. Thus, as in Esmeralda B., the lack of such evidence precluded the trial court from making the (implied) finding necessary to apply the presumption.
My colleagues ignore the lack of evidence and the similarity between this case and Esmeralda B. and instead find Esmeralda B. distinguishable. First, they point out that Esmeralda B. involved a single incident of abuse, and there was no evidence that Esmeralda exhibited any of the behavioral traits associated with abused children. Quoting an excerpt from Dr. Albin’s testimony, they assert that here, Olivia had exhibited a variety of “sexualized behaviors” for several years, which indicated that she had been sexually abused more than once. Next, my colleagues point out that Esmeralda’s parents immediately sought appropriate medical attention for her and fully cooperated with authorities investigating the possibility of sexual abuse. Here, Olivia’s parents refused to cooperate with the Department and kept Olivia from social workers and the police.
Given these factual differences, my colleagues implicitly reason that because Esmeralda B. is distinguishable, the presumption in section 355.1 applies. Obviously, however, such reasoning is faulty: the conclusion does not logically follow from the premise. The application of section 355.1 does not depend on factual similarity to Esmeralda B. Rather, the presumption applies when the court makes the required finding, and that finding is supported by competent professional evidence. The factual distinctions identified by my colleagues are simply not a substitute for the required finding.
Reliance on Dr. Albin’s testimony is also unavailing. Dr. Albin opined that “there are many aspects of Olivia’s behavior that in the context of knowing that there is a sexual encounter that resulted in a transmission of a sexually transmitted disease that become more provocatively consistent with evidence of abuse. So, for instance, masturbation by itself does not indicate abuse. But masturbation in conjunction with a child who has got other developmental problems, emotional issues, and a sexually transmitted disease becomes a more relevant finding, much more likely suggesting that instead of a single encounter that there may have been many, especially as this behavior has been noted over years. In other words, it was noted over courses of time both by parents and by teachers at school. So, this represents, in my opinion, a very significant contributing piece of information regarding this child’s risk for being sexually abused.”
First, it is important to determine what this excerpt means. In essence, Dr. Albin stated that, when viewed in light of Olivia’s developmental disabilities and the positive test for chlamydia, Olivia’s persistent masturbation was “consistent” with her being abused. Dr. Albin did not explain how or why masturbation is consistent with abuse. But perhaps she meant that Olivia’s masturbation can be understood as a behavioral response to abuse because some children who have developmental problem and who have been abused masturbate. On the other hand, Dr. Albin did not say that Olivia’s persistent masturbation is evidence of or proves that she was, or might have been, abused. Indeed, Dr. Albin expressly said that masturbation does not indicate abuse, and she later testified that “it is very difficult to say that the presence of masturbation is diagnostic. It is only suggestive.” She also explained that children with developmental disabilities often engage in self-stimulating behavior such as masturbation to release stress and anxiety. In other words, not all children with developmental problems who masturbate do so in response to abuse.
Elsewhere in her testimony, Dr. Albin confirmed that Olivia had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Tourette’s Syndrome, and she opined that Olivia may also have had autistic spectrum disorder.
Dr. Albin also said that in light of the positive chlamydia test, Olivia’s persistent masturbation “suggests” that she may have been abused more than once. However, Dr. Albin did not explain how masturbation can indicate multiple incidents of sexual abuse. Moreover, Dr. Albin’s unexplained comment appears to be inconsistent with her view that masturbation does not prove or indicate abuse. Thus, if masturbation does not indicate abuse, how, I ask, can it imply multiple instances of abuse. Again, Dr. Albin did not explain this.
Last, Dr. Albin concluded that “this represents, in my opinion, a very significant contributing piece of information regarding this child’s risk for being sexually abused.” It is not clear what “this” refers to. However, I read the statement to mean that taken together, the evidence that Olivia has developmental problems, someone abused her and gave her chlamydia, and she persistently masturbates has significant relevance in showing that she remains at risk of further abuse.
With this understanding of the excerpt cited by my colleagues, I return to the issue of whether there is substantial evidence to support the presumption. Dr. Albin did not testify or suggest that contracting chlamydia (or being molested more than once) is the type of injury that does not ordinarily occur in the absence of parental negligence. Indeed, she did not address that issue because she was not asked to do so. Furthermore, my colleagues candidly admit that Dr. Albin’s testimony concerning the connection between masturbation an sexual abuse should not be “characterized” as expert testimony—i.e., “competent professional evidence” (§ 355.1, subd. (a)).
Dr. Albin did testify that sexual abuse is the only reasonable explanation for Olivia’s positive test for chlamydia. Thus, it could be argued that her testimony, along with that of other witnesses, would support a finding that a school-age girl ordinarily would not contract chlamydia in the absence of sexual abuse. However, that finding is not enough to raise the presumption. To apply the presumption, one would still have to find that the sexual abuse of a school-age girl does not ordinarily occur in the absence of parental negligence. I seriously doubt that a competent expert would, or could, venture such a broad, unqualified opinion.
Certainly, there are many cases where parental neglect enabled a perpetrator to sexually abuse a child: for example, where the parents habitually left a child unattended and unsupervised; entrusted a child to a person they knew or should have known posed a risk of abuse; or ignored a child’s complaints about another person’s inappropriate touching. (E.g., In re Mariah T. (2008) 159 Cal.App.4th 428 [alleged abuse by member of household]; In re Tanya P. (1981) 120 Cal.App.3d 66 [mother failed to believe daughter’s report of abuse].)
However, it is patently unreasonable (if not harsh and unfair) to suggest that every parent whose school-age child has been molested is presumptively culpable for being negligent. Sadly, it has become all to common to hear of children who were abused by teachers, doctors, therapists, members of the clergy, day care providers, coaches, neighbors, friends, relatives—people to whom parents reasonably entrusted their children for education, training, guidance, supervision, and care. (E.g. Doe v. City of Los Angeles (2007) 42 Cal.4th 531 [alleged abuse by police officer during Explorer Scout Program]; Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474 [alleged abuse by Salesian priests]; V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499 [alleged abuse by teacher]; In re Savannah M. (2005) 131 Cal.App.4th 1387 [alleged abuse by a friend]; Angie M. v. Superior Court (Hiemstra) (1995) 37 Cal.App.4th 1217 [alleged abuse by doctor]; People v. Cardamone (2008) 381 Ill.App.3d 462 [885 N.E.2d 1159] [alleged abuse by gymnastics coach].)
In any event, the fact remains that there is no competent professional evidence that contracting chlamydia is the sort of injury that does not ordinarily occur in the absence of parental negligence.
My colleagues try to fill this evidentiary void with the observation that a juvenile court may properly find jurisdictional allegations of sexual abuse true even if it is unable to identify the actual perpetrator. This observation is irrelevant. Section 355.1 does not require the court to identify the perpetrator. Moreover, the cases my colleagues cite to support their observation—In re Christina T. (1986) 184 Cal.App.3d 630 (Christina T.) and In re Kenneth M. (2004) 123 Cal.App.4th 16 (Kenneth M.)—do not suggest that a juvenile court may apply the presumption without making the required predicate finding. In Christina T., the court referred to section 355.1, but the presumption did not figure into the court’s analysis and conclusion that the juvenile court had erred in dismissing the petition. In Kenneth M., the court did not even mention section 355.1.
Next, my colleagues try to fill the evidentiary void with the bald assertion that “[t]he existence of nonaccidental injury alone suffices.” Presumably, my colleagues mean that evidence of a “nonaccidental injury” is sufficient to render the presumption applicable. In support of this general proposition, they cite In re Richard H. (1991) 234 Cal.App.3d 1351 (Richard H.). However, reliance on Richard H. is misplaced.
I take the phrase “nonaccidental injury” to mean physical harm caused by a deliberately or intentionally injurious act or a negligent act—i.e., an injury caused by wrongful or unreasonable conduct. (See § 300, subd. (a) [referring to “serious physical harm inflicted nonaccidentally upon the child”]; e.g., In re Stephanie M. (1994) 7 Cal.4th 295, 303 [“nonaccidental injuries”]; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 245 [“nonaccidental injury”].)
In Richard H., a four-month-old infant was brought to the hospital. He had a skull fracture and a subdural hematoma. Authorities detained him and his 19-month-old brother and later filed a dependency petition, alleging that the mother and father had exposed the minors to violence. (Richard H., supra, 234 Cal.App.3d at p. 1356.)
At the jurisdictional hearing, the minors’ maternal aunt testified that when the injured infant showed signs of having serious problems, she told his parents to take him to the hospital, but they did not do so. As the days passed, the infant’s condition grew worse, and his aunt renewed her pleas. However, the father ignored her and the infant’s bruises, saying that he did not want the infant’s mother to get into trouble for child abuse. Later, when the infant’s condition worsened further, the aunt and her husband took him to the hospital. (Richard H., supra, 234 Cal.App.3d at p. 1357.) The minors’ maternal uncle testified that the children’s parents argued in front of the two boys, especially when the father was intoxicated, and the father regularly pushed and pulled the mother when she was holding the infant. The uncle also observed that the parents were the only ones to have the infant during the period when the infant was injured. (Ibid.) The doctor who had examined the infant testified that the nature of the separate injuries indicated that they were not accidental but the result of blunt trauma to the head—i.e., either he had been hit in the head by an instrument or his head had been hit against a hard object—and shaking. (Id. at p. 1358.) Based on the doctor’s testimony, the juvenile court found that the infant’s physical injuries were not the sort that would ordinarily occur in the absence of parental neglect and applied the presumption. (Ibid.)
On appeal, the court concluded that the doctor’s testimony supported the finding under section 355.1, and there was no evidence to rebut the presumption. The court further opined that the record supported inferences that a parent had caused the infant’s injuries and father was responsible for them or at least guilty of neglect in failing to seek medical attention. Accordingly, the court upheld jurisdiction over the infant. (Richard H., supra, 234 Cal.App.3d at pp. 1363-1364.)
Richard H. does not suggest that where a child suffers a nonaccidental injury, the juvenile court need not make the required finding to apply the presumption. On the contrary, there, the court not only made the required finding but also relied on the presumption. Moreover, the required finding was supported by “competent professional evidence” (§ 355.1, subd. (a).)—i.e., the testimony of a doctor concerning the nature of the infant’s injuries and the likelihood that they were nonaccidental. Furthermore, the juvenile court’s finding was not based solely on the nonaccidental nature of the infant’s injuries; it was also based on evidence that the parents had exclusive custody of him at the time he was injured.
I observe that Richard H. and application of the statutory presumption there comports with the application of the common law doctrine of res ipsa loquitur—i.e., “the thing speaks for itself.” This doctrine comes into play in certain types of negligence actions. As with the statutory presumption in section 355.1, the doctrine, if applicable, establishes a presumption of negligence; and, if the defendant does not rebut it, the presumption is sufficient to support a finding of negligence. (See Evid. Code, §§ 604, 646; Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 826.) The presumption is applicable if the trier of fact finds that (1) the alleged injurious incident was of a kind that ordinarily does not occur absent negligence; (2) the cause or instrumentality was within the defendant’s exclusive control; and (3) it was not due to the plaintiff’s voluntary action or contribution. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.)
Richard H. is further distinguishable from this case because it involved an infant under his parents’ exclusive custody and control and not an eight-year-old girl who went to school every day. Moreover, the nature of the infant’s injuries, his parents’ exclusive custody and control, their actual knowledge of the injuries, and their failure to seek appropriate medical attention despite their knowledge amply supported the jurisdictional finding of parental abuse and neglect.
Here, there is no evidence that one of Olivia’s parents sexually abused her; no evidence that parents had exclusive custody and control over Olivia when she was abused; and no evidence that parents knew or should have known that Olivia had contracted chlamydia. Indeed, no one knew Olivia had the disease until after she was taken from her parents. Thus, contrary to my colleagues’ assertion, the evidence that Olivia suffered a “nonaccidental injury” does not suffice to render the statutory presumption applicable.
In sum, the presumption has no application in this case because the juvenile court did not apply it or make the finding necessary to do so. Moreover, the record would not support the required finding even if the court had expressly made it. Accordingly, I believe my colleagues err in relying on the presumption to uphold the court’s jurisdictional finding.
Substantial Evidence
My colleagues also conclude that, apart from the statutory presumption, there is substantial evidence to support the jurisdictional finding.
As noted, section 300(d) required the court to find that (1) Olivia had been sexually abused; and (2) although her parents knew or reasonably should have known that she was in danger of being abused, they unreasonably failed to protect her. (See ante, fn. 1.)
My colleagues assert that there is substantial evidence to support a finding that Olivia had been sexually abused. Dr. Albin testified, in essence, that the transmission of chlamydia requires sexual contact; and, because sexual contact with a young girl is unlawful, sexual abuse is the only reasonable explanation for Olivia’s positive test for chlamydia. I concede that Dr. Albin’s testimony constitutes substantial evidence of sexual abuse.
However, I do not agree with my colleagues’ further, and noticeably brief, analysis and conclusion that the record supports a finding that Olivia’s parents knew or should have known that she was in danger of being sexually abused and unreasonably failed to protect her from it.
My colleagues first assert that the evidence—especially Dr. Albin’s testimony—supports an inference that Olivia had been sexually abused more than once. Dr. Albin testified to the effect that Olivia’s chlamydia showed that she had been abused at least once, and Olivia’s persistent masturbation suggested that she may have been abused more than once. As noted, my colleagues do not consider Dr. Albin’s testimony in this regard to be an expert opinion, and Dr. Albin did not explain why persistent masturbation is suggestive of more than one sexual encounter. In the absence of such an explanation, I do not consider Dr. Albin’s single, isolated statement sufficient to support a finding that Olivia had been sexually abused more than once.
Next, my colleagues baldly assert that the inference of multiple encounters “in turn supports a finding of parental neglect, for failure to protect Olivia from repeated sexual abuse over time.” I find this assertion to be incredible. First, it is based on the flimsy inference that Olivia may have had more than one sexual encounter. Next, it suddenly and greatly expands the scope of parents’ alleged negligence from failing to protect her from getting chlamydia to failing to protect her from repeated instances of sexual abuse. And last, it mirrors the apparent inconsistency in Dr. Albin’s testimony—i.e., although masturbation does not indicate sexual abuse, it can suggest multiple instances of abuse.
In any event, I find my colleagues’ leap from repeated instances of sexual abuse to parental negligence to be breathtaking and unreasonable. As noted, there is a wide variety of circumstances in which children fall victim to sexual abuse by third persons through no fault of their parents. Consequently, it is not reasonable to infer a negligent failure to protect Olivia from repeated abuse from an inference that she might have been abused more than once.
Indeed, by inferring negligence solely from the fact of abuse, my colleagues, in effect, uphold jurisdiction by applying a strict liability standard. However, a finding under section 300(d) requires proof that a parent abused a child or was negligent in failing to protect that child from abuse by another person—i.e., that the parent breached his or her legal duty to protect a child from sexual abuse. (§ 300(d); Truong v. Nguyen (2007) 156 Cal.App.4th 865, 875 [negligence requires the breach of a legal duty of care]; Barela v. Superior Court (1981) 30 Cal.3d 244, 254 [duty of all citizens to protect children from sexual abuse].) Moreover, proof of negligence requires a finding that Olivia’s parents knew or reasonably should have known that she was in danger of being sexually abused. (§ 300(d).) Contrary to my colleagues’ assertion, evidence that Olivia was abused once (or more than once) has no tendency whatsoever to show that her parents knew or should have known, or even suspected, that she was in danger of such abuse.
In addressing this requirement of actual or constructive knowledge, my colleagues assert that “[a]dditionally, other evidence supports the inference that parents ‘knew or should have known that Olivia was in danger of sexual abuse.’ ” (Italics added.) The “other” evidence they cite is evidence that Olivia had been masturbating for years, and school officials had brought this behavior to parents’ attention.
In addition, my colleagues claim there was evidence that Olivia’s excessive masturbation constituted “sexualized behavior.” However, Dr. Elouise Joseph, an expert in pediatrics whom the court found to be a credible expert, testified that she did not consider Olivia’s masturbation to be “sexualized behavior.” Rather, she characterized it as a behavior Olivia used to sooth stress and control her environment. As noted, Dr. Albin confirmed that Olivia had developmental problems and similarly testified that children with such problems engage in self-stimulating, masturbatory behavior to release stress and anxiety.
It is undisputed that Olivia’s parents were aware that she masturbated at school. However, without additional evidence that her parents knew or should have known that masturbation might be a sign of prior sexual abuse, their awareness is not sufficient to show that they negligently failed to protect Olivia from sexual abuse. Moreover, the record demonstrates that Olivia’s parents had no reason to suspect that her masturbation might be a sign of sexual abuse.
Dr. Joseph testified that in early March 2004, Olivia’s mother, whom she considered to be a proactive parent, brought Olivia to see her specifically because Olivia had vaginal irritation from excessive masturbation. They discussed the fact that Olivia’s masturbation had become a distraction at her school, and Dr. Joseph changed Olivia’s ADHD medication and made a psychiatric referral. There is no evidence that at that time, Dr. Joseph suspected and suggested to Olivia’s mother that Olivia’s behavior might be a sign of sexual abuse. Indeed, at the time, Dr. Joseph did not even consider it to be “sexualized” conduct. Dr. Joseph further testified that in March 2005, Olivia’s mother brought Olivia to see her a second time because Olivia was having problems and continued to masturbate at school. Again, there is no evidence that at that time, Dr. Joseph suspected or suggested that Olivia had been sexually abused.
Similarly, although Olivia’s parents discussed her masturbation with school officials, there is no evidence that school officials suspected or suggested to parents that Olivia’s behavior might be a sign of abuse. Indeed, had they suspected abuse, they would have had a duty to report it. (See Pen. Code, §§ 11166 [“mandated reporter” has duty to report suspected child abuse]; 11165.7, subds. (a)(1)-(4), (9), (16)-(17) [school personnel are “ ‘mandated reporters’ ”].)
Finally, I note again that Dr. Albin’s testified that masturbation is not “diagnostic” but only “suggestive” and does not itself indicate sexual abuse. Rather, Dr. Albin opined only that when viewed in light of the positive test for chlamydia, Olivia’s masturbatory conduct was “consistent” with abuse.
In short, although Olivia’s parents were aware of her masturbation, the record does not support a finding that they should have suspected sexual abuse. Nor does the record suggest that parents unreasonably failed to respond to Olivia’s masturbatory behavior or pursue help to deal with it. On the contrary, it is undisputed that mother brought Olivia to see a pediatric expert, Dr. Joseph, twice due to her concerns about Olivia’s masturbation.
Although my colleagues find that Olivia’s parents were negligent in failing to protect Olivia from multiple instances of sexual abuse, they do not suggest what her parents should have done to prevent her from getting chlamydia. Nor do they cite to testimony by social workers or experts concerning what parents could or should have done.
Last, my colleagues try to salvage the juvenile court’s finding of negligence by noting evidence that (1) mother usually left the doors inside the house unlocked, and, as a result, Olivia had occasionally walked in on her father and seen him naked; and (2) once, when mother was home, Olivia undressed and got into the bathtub while her father was bathing. According to my colleagues, this evidence shows that despite their knowledge that Olivia masturbated, “the father failed to exercise caution in his physical interactions with Olivia, and the mother did nothing to intervene.”
My colleagues’ unstated implication is that these incidents show that Olivia’s parents generally failed to exercise reasonable caution, and this supports a finding that parents unreasonably failed to protect Olivia from being sexually abused by some third person. Not to put too fine a point on it, but this is hogwash.
If the Department wanted to prove that father had abused Olivia and given her chlamydia, then evidence of allegedly inappropriate sexual interactions between them might have some tendency to establish jurisdiction. However, the few incidents cited by my colleagues do not, in my view, establish that parents had a general proclivity of failing to exercise reasonable care or caution concerning their interactions with Olivia in general or in sexual matters in particular. More importantly, these incidents have no tendency to show that parents knew or should have known that Olivia was in danger of abuse by a third person or that parents unreasonably failed to protect her from it.
It should be noted, however, that there is no evidence that either mother or father has or had chlamydia. Moreover, Dr. Albin testified that bathwater cannot transmit chlamydia.
In short, the “evidence” cited by my colleagues does not support the juvenile court’s finding of parental negligence.
The only other evidence introduced below to establish jurisdiction was parents’ response to the initial call from the Department concerning Olivia: They hired a criminal defense attorney, declined to cooperate with authorities, kept Olivia out of school, and had her privately interviewed and examined.
The juvenile court found their conduct—especially father’s—to be suspicious and inferred that, instead of caring for Olivia’s welfare, her father was trying to hide something. Even if the court’s inference is reasonable, it is too vague to have any meaningful probative value. What was Olivia’s father trying to hide? To find that her parents were negligent, one would have to further infer from the court’s inference that father was hiding the fact that (1) he and Olivia’s mother knew or had reason to know that Olivia had contracted chlamydia or had been sexually abused by some third party and (2) had done nothing to protect her because they did not care about her welfare. Such an additional inference is rank speculation.
Although the rules governing appellate review require that I indulge in all legitimate and reasonable inferences that support court’s order (In re Cassandra B. (2004) 125 Cal.App.4th 199, 208), the juvenile court’s inferences are not, in my view, the only or most reasonable inferences from the parents’ conduct.
Although “substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].” (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633, italics added, quoting Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1584-1585; accord, In re Savannah M., supra, 131 Cal.App.4th at pp. 1393-1394; see Savarese v. State Farm etc. Ins. Co. (1957) 150 Cal.App.2d 518, 520 [an inference may be based on another inference only when the first inference is a reasonably probable one and, even where it is, when the building of inference upon inference results in a progressive weakening of logical sequence and leads to an ultimate conclusion which is untenable on the basis of the facts proven, the ultimate inference is legally too remote and must be rejected].)
Simply put, the evidence of Olivia’s parents’ conduct after the Department got involved does not tend to establish that before that time, her parents knew or should have known that Olivia had been the victim of abuse and failed to do anything about it.
Conclusion
The record in this case is voluminous. However, it does not support a jurisdictional finding under section 300(d). Furthermore, my colleagues’ efforts to uphold that finding are legally and factually flawed and unconvincing. It may well be that their decision to uphold the jurisdiction rests on disgust that a young, vulnerable girl like Olivia was sexually abused and contracted chlamydia and a feeling that there is something “fishy” about her parents. However, the power of the juvenile court to intervene in the privacy of a family and remove children from their parents’ custody is an awesome power. And when a court has exercised it, the reviewing court must ensure that the decision rests on substantial evidence—i.e., evidence that is reasonable in nature, credible, and of solid value and substantial proof of the jurisdictional finding. (In re N.S. (2002) 97 Cal.App.4th 167, 172; Shiela B., supra, 19 Cal.App.4th at p. 199.) “Gut” feelings are not substantial evidence. Thus, where, as here, the court’s decision to assume jurisdiction is not supported by substantial evidence, it must be reversed.
Since I find that the court erred in assuming jurisdiction over Olivia, I further find that it erred in assuming jurisdiction over her two brothers. That decision was based on section 300, subdivision (j), which permits the court to assume jurisdiction over a child, where it has previously found jurisdiction over a sibling under section 300, subdivisions (a), (b), (d), (e). Section 300, subdivision (j) requires the court to find that there is a substantial risk that the other child will be abused or neglected. Here, such a finding could only be based on evidence that because Olivia was at risk for further sexual abuse due to parental neglect, her brothers were also at risk. (See, e.g., In re Rubisela E. (2000) 85 Cal.App.4th 177 [finding that father had molested one daughter sufficient to establish risk to her sister].) However, since there was insufficient evidence that as a result of parent’s negligence, Olivia was at risk of abuse, there is likewise insufficient evidence to support a finding that her brothers were also at risk..
Section 300, subdivision (j) provides, in relevant part, “The child’s sibling [here Olivia] 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. 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.”
Under the circumstances, I would reverse the jurisdictional orders.
“A Kelly/Frye foundational showing” requires “foundational evidence disclosing general acceptance” of scientific techniques “within the relevant scientific community….” (People v. Leahy, supra, 8 Cal.4th at p. 591.) We discuss the parties’ substantive Kelly arguments infra.
As reflected in the minute order for October 3, 2005, the court made the following ruling: “Kelly-Frye/Daubert motion filed by the mother and father wherein the parents request the Court to strike all references to conduct as indicators of ‘sexual abuse’. The motion is denied as to both parents.” In its oral ruling, the court referred only to the mother’s motion.
Section 300 provides, in relevant part, “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (d) The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.”
Olivia’s parents’ obvious and intense wariness can just as reasonably be understood as a protective reflexive reaction triggered by common knowledge of highly publicized cases, such as the McMartin preschool case or the more recent Texas polygamist compound case, where child protective service agencies overreached and/or abused their power. (See Zirpolo, I’m Sorry (Oct. 2005) Los Angeles Times <http://articles.latimes.com/2005/oct/30/magazine/tm-mcmartin44> (as of Sept. 11, 2008[reporting about the McMartin case]; Blumenthal, Court Says Texas Illegally Seized Sect’s Children (May 2008) The New York Times <http://community.nytimes.com/article/comments/2008/05/23/us/23raid.html> (as of Sept. 11, 2008) [reporting about the Texas case]; see Wood, More Than Suggestion The Effect of Interviewing Techinques from the McMartin Preschool Case, DigitalCommons@UTEP <http://digitalcommons.utep.edu/james_wood/13/> (as of Sept 11, 2008) [discussing overly suggestive interview techniques in the McMartin preschool case].) Indeed, there are websites devoted to warning parents about possible overreaching by child protective service agencies. (e.g., Beware of Child Protective Services; What Victims, Advocates and Mandated Reporters Need to Know, Women’s Justice Center <http://justicewomen.com/tips_bewarechildprotectiveservices.html> (as of Sept. 10, 2008); Fighting Child Protective Services False Accusations <http://www.fightcps.com> (as of Sept. 11, 2008).)
My colleagues also strain to excuse the juvenile court’s persistent view that immediately hiring an attorney was suspicious, if not implicitly inculpatory, conduct. Such an inference is not only legally questionable but illogical. The president of an investment company gets a call from a regulatory agency and calls his lawyer; a driver is involved in a serious car accident and calls a lawyer; a borrower gets a threatening demand letter from a creditor and calls a lawyer—is it reasonable to infer that these people were trying to hide something inculpatory? Obviously not.