Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of the County of Los Angeles, Super. Ct. No. CK85606, Marilyn Mackel, Juvenile Court Referee.
Cristina G. Lechman, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
M.S. (father) appeals from the juvenile court’s jurisdiction and disposition orders finding his minor daughter, V.O., a dependent child of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b), and placing V.O. with N.O. (mother). Father contends that there was not substantial evidence to support the juvenile court’s jurisdictional finding, and the juvenile court improperly shifted the burden of proof to him during the hearing. We affirm.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Mother is not a party to this appeal.
We denied the motion of the Los Angeles County Department of Children and Family Services (Department) to dismiss the appeal on the ground that it was moot.
FACTUAL AND PROCEDURAL BACKGROUND
Huntington Park Police Officer C. Garcia’s crime report provided that on November 27, 2010, he was dispatched to Pomona Valley Hospital to investigate a sex crime report. He contacted O.A., a male child, who told Officer Garcia that O.A. had anal sex with father on 11 different occasions. O.A. was able to provide Officer Garcia with specific details of four of the encounters. O.A. advised that the last incident occurred in July 2010. C.A. was O.A.’s uncle and father’s boyfriend. Officer Garcia reported the incidents to the Riverside County Child Abuse Hotline. The crime report included contact information for O.A. and Officer Garcia. Officer Garcia’s arrest report provided that on November 28, 2010, he arrested father and charged father with sodomy with a 14 year old child, in violation of Penal Code section 286 subdivision (c)(1), and lewd and lascivious acts with a 14 year old child, in violation of Penal Code section 288, subdivision (c)(1).
On December 2, 2010, the Department filed a detention report stating that on November 28, 2010, V.A. came to the attention of the Department by a referral asserting the alleged sexual abuse of O.A. by father. The Department interviewed Officer Garcia, V.O., C.A., father, mother, and V.O.’s maternal grandfather, D.O.
According to the detention report, Officer Garcia stated that O.A. reported to him that O.A. had been sodomized and orally copulated by father when O.A. visited the home father shared with C.A. V.O. stated that she resided with father and C.A. during the week and lived with her mother and D.O. on weekends. V.O. denied that she had been touched inappropriately by anyone in her home, and reported feeling safe and loved in both of her parents’ homes. Father confirmed that he had been arrested and incarcerated for sexual offenses involving children, stated that he did not know who made the allegation, and denied that he has had sexual encounters with any child in his home. V.O. was detained from father and released to mother.
Officer Garcia’s crime report indicated O.A’s date of birth, and based thereon, it appears that O.A. was 13 and 14 years old at the time of the reported sexual assaults. The Department’s detention report provides, however, that Officer Garcia confirmed that O.A. was 11 years old at the time Officer Garcia interviewed O.A. on November 27, 2010, four months after the last incident reported by O.A.
Also, according to the detention report, father stated that he was released from custody because the district attorney refused to file charges against father. The detention report attached a letter dated December 2, 2010, authored by father’s criminal defense attorney and addressed “To Whom It May Concern, ” stating inter alia that, “The Los Angeles District Attorney’s Office did not file any charges... against [father] because of lack of evidence that he committed any crime.”
On December 2, 2010, the Department filed a petition under section 300, subdivisions (b) and (d). The petition alleged that father sexually abused an unrelated 11 year old child by repeatedly forcibly sodomizing the child and orally copulating the child’s penis, endangering V.O’s physical and emotional health and safety and placed V.O at risk of physical and emotional harm, damage, danger and sexual abuse.
On December 2, 2010, father filed a statement regarding parentage stating that in 2002, he participated in a DNA test which confirmed that he was V.O.’s biological father. At the December 2, 2010, detention hearing, the juvenile court detained V.O., released V.O. to mother, and found father to be V.O.’s presumed father.
The Department’s January 6, 2011 jurisdiction/disposition report provided that father acknowledged knowing O.A., and O.A. had been in father’s home, but father stated that he did not know why O.A. would have made the allegations against him. On January 6, 2011, the Department also filed a last minute information for the court report stating that the Department spoke with someone at the Los Angeles County District Attorney’s Office and confirmed that the district attorney rejected the case against father because of insufficient evidence.
Prior to February 17, 2011, the Department filed a last minute information for the court report attaching Officer Garcia’s crime report and arrest report regarding father. At the February 17, 2011, contested jurisdiction and disposition hearing, the crime report concerning father’s arrest for sexual abuse of O.A. was admitted into evidence, without objection. The December 2, 2010, letter from defendant’s counsel stating that the Los Angeles District Attorney’s Office did not file any charges against father because of lack of evidence that he committed any crime was also admitted into evidence.
Father moved the juvenile court to dismiss the petition pursuant to section 350, subdivision (c) for lack of sufficient evidence to support the allegations in the petition, arguing that the information contained in the crime report was unsubstantiated. The Department’s counsel argued that the Department met its burden of proof. Father’s counsel also argued that in response to the Department’s counsel’s contention that father had the opportunity to subpoena O.A. and Officer Garcia, it was not father’s burden to do so.
The juvenile court stated that, “The court is somewhat at a loss at the arguments of father’s counsel because it is clear that the Department has investigated the situation. And I would dare to say that does shift the burden and that burden has not been met as shifted.” The juvenile court denied father’s motion, stating that the Department had met its burden by a preponderance of the evidence. The juvenile court sustained the allegations under section 300, subdivision (b), and dismissed the allegations under subdivision (d).
The juvenile court declared V.O. a dependant of the juvenile court, found that return of V.O. to father’s care and custody would be detrimental to V.O., and ordered V.O. to remain in mother’s custody. Thereafter, the juvenile court terminated jurisdiction over V.O.
DISCUSSION
A. Father’s Motion for Consideration of Additional Evidence
Father has filed a request that we receive as additional evidence a purported correspondence dated July 11, 2011, from the County of Riverside Department of Public Social Services, Children’s Services Division to father’s criminal defense attorney, stating that following an administrative review, “The allegation conclusion of ‘Inconclusive for Sexual Abuse against your client will be changed to unfounded. In addition, the agency will be contacting the DOJ to have his name removed from CACI.’” Father requests that we receive the correspondence as additional evidence in support of his contention that the juvenile court erred in finding that father sexually abused O.A. The Department opposed the motion contending that it should be denied pursuant to In re Zeth S. (2003) 31 Cal.4th 396, and the proposed evidence is not authenticated and constitutes inadmissible hearsay. We deny the request to receive the additional evidence.
Taking additional evidence on appeal is governed by Code of Civil Procedure section 909, which, as pertinent, states: “In all cases where trial by jury is not a matter of right..., the reviewing court... may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.”
“It has long been the general rule and understanding that ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ [Citation.] This rule reflects an ‘essential distinction between the trial and the appellate court... that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law....’ [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal. ‘Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909..., the authority should be exercised sparingly. [Citation.] Absent exceptional circumstances, no such findings should be made. [Citations.]’ [Citations.] [¶] There is no blanket exception to the general rule for juvenile dependency appeals.” (In re Zeth S., supra, 31 Cal.4th at p. 405, italics omitted; accord Advisory Com. com., West’s Ann. Codes (2006 ed.) foll. rule 8.252.) Hence, “[t]he power to invoke [section 909] should be exercised sparingly, ordinarily only in order to affirm the lower court decision and terminate the litigation, and in very rare cases where the record or new evidence compels a reversal with directions to enter judgment for the appellant [citation].” (Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal.App.3d 826, 830.)
Father contends that the proffered evidence is “one of ‘exceptional circumstances’ insofar as it contradicts the allegations made by [the Department], that [father] sexually abused an unrelated minor.” Even if the letter constituted “exceptional circumstances”, father did not authenticate the proposed letter (Evid. Code, §§ 400–403, 1400-1401), and it is inadmissible hearsay (Evid. Code, § 1200). Authentication of a writing is required before it may be received in evidence (Evid. Code, § 1401, subd. (a)) and father has not established that the proposed evidence “is the writing that [he] claims it is....” (Evid. Code, § 1400.) Hearsay evidence—“evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated”—is generally inadmissible because it is inherently unreliable. (Evid. Code, § 1200, subds. (a) and (b); People v. Ayala (2000) 23 Cal.4th 225, 268; Wolf v. Drew (1928) 94 Cal.App. 449, 450 [denying a motion for leave to produce additional evidence made pursuant to Code of Civil Procedure section 956, subdivision (a), a predecessor to section 909, because the proposed evidence constituted inadmissible hearsay].)
The proffered evidence is not admissible. Accordingly, we deny father’s request.
B. The Juvenile Court’s Jurisdictional Finding
Father contends that substantial evidence does not support the juvenile court’s jurisdictional finding pursuant to section 300, subdivision (b), and the juvenile court improperly shifted the burden of proof to him during the jurisdictional hearing. We disagree.
1. Standard of Review
In determining whether substantial evidence supports the factual findings, “all intendments are in favor of the judgment and [we] must accept as true the evidence which tends to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been drawn by the trial court.” (Crogan v. Metz (1956) 47 Cal.2d 398, 403-404.) “‘“[The] [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... such that a reasonable trier of fact could [make the findings made].”’ [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) “[I]ssues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
“We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S., supra, 201 Cal.App.3d at p. 321.) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made. (Ibid.)
2. Analysis
Father contends that there was not substantial evidence to support the jurisdictional finding under section 300, subdivision (b) because the crime report was insufficient to support the finding. We disagree.
Section 300, subdivision (b) states in relevant part that, “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: [¶]... [¶] (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child.... The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” The purpose of the juvenile court law is to provide “maximum safety and protection for children” being harmed or who are at risk of harm. (§ 300.2.)
The crime report alone constituted substantial evidence to support the jurisdictional finding. The testimony of a single witness, if believed by the trier of fact, is in a criminal context sufficient evidence to support a conviction. (People v. Boyer (2006) 38 Cal.4th 412, 480.) “A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based....” (§ 355, subd. (b).)
A “‘social study’ means any written report furnished to the juvenile court and to all parties or their counsel by the county probation or welfare department in any matter involving the custody, status, or welfare of a minor in a dependency proceeding pursuant to Articles 6 (commencing with Section 300) to 12 (commencing with Section 385), inclusive, of Chapter 2 of Division 2.” (§ 355, subd. (b)(1).)
“If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based unless [certain exceptions apply].” (§ 355, subd. (c)(1).) Father, however, did not object to the admission of the crime report on hearsay or any other ground. “It is well settled that hearsay or other incompetent evidence... if received without proper objection or motion to strike is to be regarded as competent evidence in support of an order or judgment.” (Flood v. Simpson (1975) 45 Cal.App.3d 644, 649; see also Evid. Code, § 353 [failure to object to hearsay waives the issue].)”
Father contends that there was not substantial evidence to support the jurisdictional finding as the district attorney declined to prosecute father for sexually abusing O.A. because there was insufficient evidence to support the charges. Father argues that because the district attorney did not file charges against father, there was no preliminary hearing. Father reasons therefore that “the District Attorney did not believe there was enough evidence to get to the preliminary hearing in this case, meaning the evidence was less than ‘sufficient cause’ or ‘probable cause’ or ‘strong suspicion.’ If there were not enough facts in this case to give the District Attorney a strong suspicion that [father] had committed a crime, it defies logic that the juvenile court could come to the conclusion that the allegations were true by a preponderance of the evidence.” (Bold omitted.)
Father’s reasoning is flawed. We do not conclude that the district attorney necessarily believed that there was not enough evidence of probable cause. The filing of charges against father would be futile if the district attorney believed there was insufficient evidence to convict defendant, regardless of whether there was sufficient evidence to establish probable cause at the preliminary hearing. “As noted in In re Nathaniel P. (1989) 211 Cal.App.3d 660, 670 [], ‘... the doctrine of collateral estoppel may not apply where two proceedings have differing burdens of proof.’ [Citations.] Thus a failure to convict a parent of spousal abuse in a criminal proceeding—where the burden is a high one—‘beyond a reasonable doubt’—does not establish that the parent did not commit spousal abuse for purposes of a proceeding where the burden is lower—‘preponderance of the evidence’—as it is in dependency cases.” (In re Sylvia R. (1997) 55 Cal.App.4th 559, 563.)
Father also contends that there was no evidence that V.O. was at risk of harm at the time of the February 17, 2011, jurisdiction and disposition hearing, because there was no evidence that father had harmed V.O. The evidence that a parent has abused an unrelated child, however, supports dependency jurisdiction over the parent’s child under section 300, subdivision (b), even when there is no evidence that the parent’s child has been similarly abused. (In re Andy G. (2010) 183 Cal.App.4th 1405; In re P.A. (2006) 144 Cal.App.4th 1339; In re Y.G. (2009) 175 Cal.App.4th 109, 116 [“construing subdivision (b) of section 300 to permit a finding of danger to the parent’s child based on evidence of conduct with an unrelated child is consistent with the broad purpose of dependency law: ‘to ensure the safety, protection, and physical and emotional well-being of children who are at risk of [physical] harm’”].)
Father argues that he was homosexual and therefore his daughter, V.O., was not at risk of sexual abuse by him. In support of his argument father relies on In re Maria R. (2010) 185 Cal.App.4th 48, which held that where the father sexually abused his daughter, there must be evidence that he also had an interest in engaging in sexual activity with a male child before the son could be found at risk of sexual abuse as defined by section 300, subdivision (d). (Id. at pp. 67-68.)
The holding in In re Maria R., supra, 185 Cal.App.4th 48 conflicts with In re Andy G., supra, 183 Cal.App.4th 1405 [a father’s sexual abuse of his son’s half-sisters placed the son at risk of sexual abuse]; and In re P.A., supra, 144 Cal.App.4th 1339 [a father’s sexual abuse of his daughter placed the two sons at risk of aberrant sexual behavior]. Also, father does not cite to any evidence in the record in support of his contention that he had an interest in engaging in sexual activity only with other males.
The Department described C.A. in its reports as father’s roommate, father described C.A. as his partner, and the crime report identified father as C.A.’s boyfriend. And according to the Department’s January 6, 2011 jurisdiction/disposition report, father stated that “my family was not accepting of my lifestyle.... [¶] [O.A.] trusted [C.A.] and I, and he came out to us first. We gave him advice about coming out. [O.A.’s] parents knew he was going to be gay, but they didn’t like the idea.” This evidence, however, does not establish that defendant was only interested in engaging in sexual activities with other males. The record supports a reasonable conclusion that father had a sexual interest in females because father stated that a DNA test confirmed that he was V.O.’s biological father. We therefore reject father’s contention that V.O. was not at risk of sexual abuse by him. Moreover, aberrant behavior with one child can pose a risk to other children.
Father also contends that the juvenile court improperly shifted the burden of proof to him during the jurisdictional hearing. Father argues that “the juvenile court stated that since [the Department] had filed a police report in which [O.A.] made [the sexual abuse] allegations against [father], that the burden of proof then ‘shifted’ to [father]. No. A parent never has the burden to disprove allegations made against him.” The burden of proof did not shift to father. Upon the Department’s introduction of evidence sufficient to make a prima facie case supporting the petition, the burden of producing evidence shifted from the Department to father.
“‘Burden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid. Code § 115.) “Unlike the burden of proof, the burden of producing evidence may shift between plaintiff and defendant throughout the trial. [Citations.] Initially, the burden of producing evidence as to a particular fact rests on the party with the burden of proof as to that fact. [Citations.] If that party fails to produce sufficient evidence to make a prima facie case, it risks nonsuit or other unfavorable determination. [Citations.] But once that party produces evidence sufficient to make its prima facie case, the burden of producing evidence shifts to the other party to refute the prima facie case. [Citations.] Even though the burden of producing evidence shifts to the other party, that party need not offer evidence in reply, but failure to do so risks an adverse verdict. [Citation.]” (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1667-1668.)
The juvenile court denied father’s motion made pursuant to section 350, subdivision (c), stating that the Department had met its burden by a preponderance of the evidence. Therefore, the burden of producing evidence shifted to father to prevent an adverse verdict. (§350, subd. (c).) Father, however, failed to produce any additional evidence, and the juvenile court sustained the petition allegations under section 300, subdivision (b), and declared V.O. a dependant of the juvenile court.
Section 350, subdivision (c) provides that, “At any hearing in which the probation department bears the burden of proof, after the presentation of evidence on behalf of the probation department and the minor has been closed, the court, on motion of the minor, parent, or guardian, or on its own motion, shall order whatever action the law requires of it if the court, upon weighing all of the evidence then before it, finds that the burden of proof has not been met. That action includes, but is not limited to, the dismissal of the petition and release of the minor at a jurisdictional hearing, the return of the minor at an out-of-home review held prior to the permanency planning hearing, or the termination of jurisdiction at an in-home review. If the motion is not granted, the parent or guardian may offer evidence without first having reserved that right.”
Father complains that the Department did not interview O.A. or call him as a witness to assess his credibility. The Department did not have to establish O.A.’s credibility. Father, however, could have subpoenaed O.A. Father’s counsel had been provided with a copy of the crime report, which included contact information for O.A. In addition, father acknowledged knowing O.A. and that O.A. had been in father’s home. O.A. was the nephew of C.A., father’s boyfriend and roommate. Father could have subjected O.A. to cross-examination to challenge his credibility, but father did not do so.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: ARMSTRONG, Acting P. J.KRIEGLER, J.