Opinion
F077978
02-09-2021
J.S., Plaintiff and Appellant, v. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES et al., Defendants and Respondents.
J.S., in pro. per., for Plaintiff and Appellant. Daniel C. Cederbog, County Counsel, and Devin A. Stimmel, Deputy County Counsel, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CECG02470)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T. McGuire, Judge. J.S., in pro. per., for Plaintiff and Appellant. Daniel C. Cederbog, County Counsel, and Devin A. Stimmel, Deputy County Counsel, for Defendants and Respondents.
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Fifteen-year-old G.K. (daughter) reported that on one occasion her father, J.S. (father), laid on top of her, tried to kiss her on the mouth and grabbed her butt. The Fresno County Department of Social Services (Department) concluded the report was "substantiated" and submitted it to the California Department of Justice for inclusion in the Child Abuse Central Index (CACI) under the Child Abuse and Neglect Reporting Act (CANRA) (Pen. Code, § 11164 et seq.). Father, who represented himself throughout these proceedings, unsuccessfully sought relief by an administrative appeal and a petition for administrative mandamus in superior court.
On appeal, father contends the trial court erred because it failed to apply the independent judgment standard of review and he was denied a fair administrative hearing because daughter did not testify, he was not provided with an interpreter, and he was not afforded adequate time to present his case. Finding no merit to father's contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Investigation and Finding of Report of Sexual Abuse
On October 25, 2016, the Department received a referral that daughter reported father sexually abused her, which consisted of fondling, although further investigation was required. Department social workers Teresa Lazalde and Jenoeva Flores investigated the referral with the Fresno Police Department.
Prior to this referral, police had responded to father's home twice. The first response occurred on October 8, 2016, when police were called to the home after an incident over the use of father's laptop. Daughter, who previously injured her arm in a skateboarding accident, claimed father punched her arm, while father said he accidentally bumped it. The second occurred on October 24, 2016, when police responded to a complaint from father's wife (stepmother) that father, who planned to leave for Malaysia in a few days, would not hand over her green card. This incident prompted father to call daughter's high school on the morning of October 25, 2016, to explain his side of the story; during the call, father called daughter a liar. The individual who took the call figured out the child referenced was daughter. Daughter was called to the school office that afternoon, when she disclosed father sexually abused her.
The school contacted the police, who met with daughter at the high school. Officer Edward Jansen reported daughter, who was crying, told him about two months earlier, she was asleep in bed when father came into the room and laid on top of her, waking her up. He kissed her several times on her cheek and neck and grabbed her butt with his hand. She kneed father in his "private parts." Father grabbed her by the hair, pulled her off the bed, pushed her against the wall and kicked her in the ribs a couple times. He left the room but came back about an hour later and gave her some money. She said father had kissed her in her room on at least 20 occasions, but this time he took things further when he grabbed her butt.
Social worker Lazalde arrived at the school later that day and contacted the officers. She interviewed daughter, who told her father got on top of her, tried to kiss her on the mouth, and grabbed her butt. They were both clothed. Daughter said this occurred about 20 other times, but this was the first time he grabbed her butt. Daughter was emotional and cried as she relayed this information. Daughter said her stepmother came into the room to give her laundry and saw father on top of her. After that, stepmother and father got into a big fight.
Later that evening Lazalde met with father outside the family home. He denied the allegations of sexual abuse and claimed daughter was lying because he no longer put money into her bank account and refused to buy her a new car. Lazalde also interviewed stepmother, who said she saw father on top of daughter, but never saw him touch her butt or try to kiss her. Stepmother said father was verbally and physically abusive towards her and she made allegations of spousal rape. Stepmother feared father, who holds her green card, might take her kids away.
The case was transferred to social worker Flores. On October 26, 2016, father told Flores his wife and daughter were plotting against him because he would not allow stepmother to return to Malaysia with him, and because he would not buy daughter a new car. He also pointed out the police had been called out two days prior, but daughter did not allege sexual abuse then.
Detective Derek Scott of the sexual assault unit noted in his report he was curious that daughter did not report that father sexually abused her when she reported physical abuse on October 8, 2016, even though she claimed the sexual abuse occurred before that date. Scott interviewed daughter and found her to be vague and evasive in answering his questions. He did not think daughter was being truthful due to her inability to recall specifics and failure to provide details, such as what was worn. Scott concluded there was insufficient evidence to send the case to the district attorney's office.
Flores interviewed stepmother, daughter's half-siblings, and requested a search for her biological mother. Flores and another social worker transported daughter to an "EOC sanctuary." Daughter ultimately was placed in a foster home. On November 10, 2016, after completing her investigation, Flores concluded the allegation of sexual abuse - father intentionally touched daughter on her intimate parts as defined in Penal Code section 11165.1 - was substantiated. She closed the referral and the matter was transferred to the reunification unit. The Department notified father the substantiated finding was sent to the California Department of Justice for inclusion in the CACI.
The Department filed a juvenile dependency petition that included a sexual abuse allegation under Welfare and Institutions Code section 300, subdivision (d) based on this incident. The petition was later amended to allege jurisdiction solely under section 300, subdivision (c), based on serious emotional damage daughter had suffered due to father's infliction of physical and sexual abuse. The juvenile court took jurisdiction on that basis alone after father submitted.
The Grievance Hearing and Final Administrative Action
Father filed a request for a grievance hearing to dispute the decision to list his name on the CACI, which was held on May 5, 2017. The grievance review officer (hearing officer) heard testimony from Lazalde and Flores, and father testified about his side of the story. In addition to testifying to the above, Lazalde testified she believed daughter's allegations because she did not perceive daughter was lying, but rather was fearful, and Flores testified it was her opinion the sexual abuse allegation, as defined in Penal Code section 11165.1, was substantiated.
The hearing officer issued a detailed recommended hearing decision to the Department's director on May 31, 2017, denying father's grievance as the hearing officer determined his name should remain on the CACI. The hearing officer reviewed the evidence received at the hearing and the parties' arguments, and concluded: "[B]y a preponderance of the evidence, on one occasion approximately two to three months prior to 10/25/2016, [father] c[a]me into the minor's bedroom, laid on top of her, kissed her and grabbed her butt. Both of them were clothed when this occurred. Grabbing the minor's buttocks in this context meets the definition of sexual abuse in the Penal Code section 11165.1(b)(4) in that [father] intentionally touched her buttocks or the clothing over it for the purpose of sexual arousal." The Department's director subsequently adopted the hearing officer's recommendation.
The Writ Proceeding
Father filed a petition for writ of administrative mandamus against the Department, the Department's director Delfino E. Neira, and the County of Fresno (collectively respondents), seeking an order commanding the director to have his name removed from the CACI. In his memorandum of points and authorities in support of the petition, father argued the hearing officer acted in excess of his jurisdiction and abused his discretion when he found J.S. sexually abused daughter as provided in Penal Code section 11165.1, subdivision (b)(4) when there had not been a criminal conviction. He also argued he did not receive a fair hearing, as (1) the hearing officer did not allow daughter to testify and relied on hearsay evidence, (2) he was not provided with a Malay interpreter to assist him during the administrative proceeding, and (3) he was not given enough time to present evidence, as the hearing officer repeatedly told him to finish questioning the witnesses.
A hearing on the petition was held on May 23, 2018. Following arguments by father and county counsel, the trial court took the matter under advisement. On June 21, 2018, the trial court issued an order denying the petition and statement of decision. The trial court found: (1) the hearing officer's conclusion that father sexually abused daughter within the meaning of Penal Code section 11165.1, subdivision (b)(4) was supported by the weight of the evidence and that father was not criminally prosecuted was of no significance; (2) father was not denied a fair hearing because daughter did not testify; (3) father was not prejudiced by the lack of an interpreter; and (4) father was afforded adequate time to present this case. Judgment was entered in respondents' favor on July 2, 2018, with the parties bearing their own costs.
Father filed a motion for reconsideration on July 3, 2018, based on new evidence, which he submitted with the motion. Father asserted some of the evidence was not made available to him and some "he was not provided an opportunity to present" to the trial court. On August 14, 2018, father filed a notice of appeal from the trial court's June 21, 2018 order. The trial court determined it could not consider the motion for reconsideration as it no longer had jurisdiction pending the appeal.
DISCUSSION
I. The Trial Court Properly Exercised Its Independent Judgment
Under Penal Code section 11169, an agency must forward "substantiated" reports of "child abuse" to the California Department of Justice. (Pen. Code, § 11169, subd. (a).) A "substantiated report" is defined as "a report that is determined by the investigator who conducted the investigation to constitute child abuse or neglect, as defined in [Penal Code] Section 11165.6, based upon evidence that makes it more likely than not that child abuse or neglect, as defined, occurred." (Pen. Code, § 11165.12, subd. (b).) Penal Code section 11165.6 defines child abuse or neglect to include sexual abuse as defined under Penal Code section 11165.1, which includes "[t]he intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose." (Id., subd. (a)(4).)
"Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. A trial court's review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. [Citation.] If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. [Citations.] The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings. [Citation.] If, on the other hand, the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court's review is limited to determining whether the administrative findings are supported by substantial evidence." (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313.)
Whether an administrative decision substantially affects fundamental vested rights is determined on a case-by-case basis. (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.) Courts have concluded "the familial and informational privacy rights identified in Burt [v. County of Orange (2004) 120 Cal.App.4th 273] are sufficient to establish that there is substantial impact on fundamental vested rights when ... a parent is listed on the CACI." (Saraswati v. County of San Diego (2011) 202 Cal.App.4th 917, 928.) Thus, trial courts must exercise their independent judgment when "determining whether the evidence before the Department established that the report is 'substantiated.' " (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 84 (Gonzalez).) Under the independent judgment standard of review, the trial court is required to afford a strong presumption of correctness to the administrative agency's findings, and place on the party challenging the administrative decision the burden of proving the administrative findings are contrary to the weight of the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
Here, the trial court clearly set out the independent judgment standard of review in its statement of decision. It specifically affirmed "the superior court exercises its independent judgment in determining whether the evidence before the local child welfare agency established that the abuse report was 'substantiated,' " citing Gonzalez. In addressing father's claim the hearing officer's findings were not supported by the evidence, the trial court reviewed the daughter's reports of sexual abuse and the evidence that either corroborated her account or cast some doubt on its truthfulness, and found "the [hearing officer]'s conclusion is supported by the weight of the evidence."
Father contends that while the trial court "intimated that an independent judgment would be appropriate in the case at hand, it does not appear that the Court thoroughly considered the evidence presented in the record" as required by the independent judgment standard of review. Noting the length of the administrative record, which is comprised of about 700 pages and includes the exhibits presented at the hearing, as well as a transcript of the audio recording of the grievance hearing, father asserts the statement of decision does not show the trial court "took the time to review the record, weigh the testimony of witnesses and exhibits, and other evidence submitted by the parties for the administrative proceeding."
The trial court's statement of decision, however, indicates it was aware of its obligation to apply its independent judgment to the evidence and that it in fact applied that standard. The trial court's choice not to discuss all the evidence in the administrative record or the testimony given at the hearing does not establish a failure to apply the correct standard. "[A] judgment is presumed to be correct and must be upheld in the absence of an affirmative showing of error." (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1550; People v. Mack (1986) 178 Cal.App.3d 1026, 1032 ["the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties"].) We apply that principle and conclude father has failed to establish the trial court applied the wrong standard in reaching its decision on the writ petition.
II. Father Received a Fair Administrative Hearing
Father contends he was denied a fair administrative hearing because his daughter did not testify, he was not provided with an interpreter, and he was not given enough time to present his case. A petitioner may overcome the validity of an administrative decision by showing he or she was not afforded a fair trial. (Code Civ. Proc., § 1094.5, subd. (b).) The "fair trial" requirement of section 1094.5 is not synonymous with constitutional due process, but rather simply requires "a 'fair administrative hearing' [citation], which affords the appellant a ' " 'reasonable opportunity to be heard.' " ' " (Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463.) When reviewing a claim that an appellant did not receive a fair trial, "we will uphold the trial court's decision if it is supported by substantial evidence," but where "the evidence is substantially undisputed and the fair trial issue presents a question of law, we independently review the fair trial issue." (Id. at p. 1464.) "Generally, we reverse only if the alleged error prejudicially affected the appellant's substantial rights." (Ibid.)
A. The Lack of Daughter's Testimony
We begin with father's claim the hearing officer denied his request to allow daughter to testify. In support, father points to an exchange he had with the hearing officer following the conclusion of his closing argument. After the hearing officer explained the timeline and procedure for issuing a written decision, which would be mailed to the parties, father asked, "You want the child to come over here to tell the truth?" The hearing officer responded, "No, the hearing is completed at this point." Father responded, "All right," and the hearing ended.
We agree with the trial court that father's question, posed after the hearing had drawn to a close, did not constitute a request to have daughter testify. Moreover, even if it was a request, it was untimely, since it was made at the conclusion of the hearing. And as the trial court found, at no other point in the hearing did father say anything about daughter testifying, and there is nothing to show she was present and ready to testify.
Relying on Gonzalez, father contends the grievance hearing was unfair because the hearing officer failed to determine whether there was good cause to prevent daughter from testifying. In Gonzalez, the appellate court established that, in conformity with the California Department of Social Services manual governing the hearing that contains specific provisions addressing children's testimony, before admitting or excluding a child's testimony "the hearing officer must determine whether the child is capable of consenting, does consent, and would be testifying of his or her own volition. If those questions are answered in the affirmative, the hearing officer must decide whether there is good cause to prevent the child from testifying." (Gonzalez, supra, 223 Cal.App.4th at p. 98.)
The appellate court concluded the grievance hearing over the inclusion of the mother's name on the CACI was fundamentally unfair because the hearing officer refused the mother's request to have her 13-year-old daughter testify without making any effort to determine whether there was good cause to exclude her testimony. (Gonzalez, supra, 223 Cal.App.4th at pp. 95, 98.) The appellate court explained the hearing officer "appeared to believe himself vested with unregulated discretion to exclude her testimony or that of any child whom Mother, or anyone else in her position, might seek to call as a witness," and "Mother was entitled to present relevant evidence in support of her challenge to the Department's findings," including the testimony of her daughter, who was outside the hearing room and reportedly " "very eager' " to talk to the hearing officer. (Id. at pp. 95, 98.)
Here, the hearing officer was not required to determine whether there was good cause to prevent daughter from testifying because father never requested her testimony. As the trial court pointed out, there is nothing in CANRA or its implementing regulations that requires the Department to produce the alleged victim of the abuse as a witness available for cross-examination. (See 11 Cal. Code Regs., § 900 et seq.)
Father asserts daughter asked to be included as a witness in conjunction with her notarized letter, which father presented as an exhibit at the grievance hearing, in which she nearly retracted her sexual abuse allegation. Citing to a copy of a text message daughter purportedly sent to the Department's director after the director adopted the hearing officer's recommended decision, father claims a county employee told daughter her appearance was unnecessary, and the notarized letter was sufficient. This matter was not brought to the hearing officer's attention at the grievance hearing or the trial court before it ruled on the petition. Instead, the text message, in which daughter stated the plan was for her to come to the hearing and disclose what she stated in her letter, but a county employee said the notarized letter should be sufficient, was submitted with father's motion for reconsideration. The trial court, however, did not consider the text message, as it lost jurisdiction to rule on the reconsideration motion once father filed his notice of appeal. Since the text message was not considered in the trial court, we are unable to consider it ourselves.
The hearing officer gave no weight to the notarized letter, explaining that since daughter did not testify, the circumstances under which the letter was written were unknown, such as whether the letter was written with a promise of payment or other material reward, or under some type of threat. Father asserts the hearing officer should have ensured those questions were answered and the letter should have prompted the hearing officer to allow her to testify as to the veracity of the alleged sexual abuse. It was not incumbent on the hearing officer, however, to make father's case for him. As the hearing officer told the parties at the outset of the hearing, his decision would "be based only on the evidence that you and the County give me and the applicable law." If father wanted daughter to testify, he should have presented her as a witness.
Simply put, father did not request daughter's testimony at the grievance hearing. Moreover, to the extent daughter was willing to testify, she was not available at the hearing and any reason for her absence was not brought to the hearing officer's attention. Therefore, father has not shown that he was not afforded a fair trial due to his failure to request daughter's testimony.
B. The Lack of an Interpreter
Father next contends he was denied a fair hearing because the Department failed to have a Malay interpreter present. Father claims he requested a Malay interpreter, but one could not be found, and the grievance hearing proceeded anyway.
This representation, however, is not supported by the record. At the start of the hearing, the hearing officer stated that before they went on the record, there was a conversation about whether father wished to have an interpreter for the hearing "[a]nd the decision that he made was to proceed in English." The hearing officer further stated father asked them to speak slowly and he would raise his hand and let them know if he needed them to slow down or if there was something he did not understand; moreover, father indicated if he did not understand something, he would make it known that he needed a Malay interpreter to help him understand. Asked if he agreed with this summary of the discussion regarding the interpreter, father said, "Yes, sir." The hearing officer then stated they were going to proceed in English and "as the interpreter is needed, he can certainly let me know." After that discussion, father never asked for an interpreter. Accordingly, father was not denied an interpreter; rather, he chose to proceed without one.
Moreover, father has not set forth how he was prejudiced by the lack of a Malay interpreter. The trial court noted a review of the grievance hearing transcript showed father communicated quite well in English, and there was no indication he had difficulty understanding English or communicating his thoughts. The trial court also noted based on father's conduct at the hearing on the writ, he appeared extremely comfortable with English, at least when communicating in a court or administrative hearing. The trial court explained that while a Punjabi interpreter was present at the hearing and started interpreting for father, father soon began speaking in English only. When the trial court asked father if he wanted to speak English or use the interpreter, father opted for the interpreter, but he frequently corrected the interpreter's translations and shortly resumed communicating only in English. From about midway through the lengthy hearing, the interpreter was not used at all. The trial court found that based on father's conduct, it was apparent his true preference was to communicate in English, and he had no trouble doing so.
At oral argument in this appeal, father asserted the social workers could not understand his questions. The grievance hearing transcript, however, does not bear this out; the social workers were able to answer his questions and neither social worker indicated they had any difficulty understanding him.
Since father was able to communicate adequately in English, as borne out by the grievance hearing's transcript and the trial court's representation of the proceedings during the hearing on the writ petition, it does not appear a Malay interpreter was required for father to be provided a fair hearing and there was no prejudice suffered for the lack of an interpreter.
Since father elected to proceed without a reporter's transcript of the hearing on the writ petition, the transcript is not part of the appellate record.
Notably, father's ability to communicate in English was confirmed at oral argument on this appeal. While father was provided with a Malay interpreter, he argued alternating in English and often corrected the interpreter.
C. Presentation of Father's Case
Finally, in a two-sentence argument without citation to authority or to the record, father contends he was not given enough time to present evidence because the hearing officer repeatedly told him to finish questioning the witnesses. The trial court reviewed the grievance hearing transcript and found father was afforded more than enough time to present his case, noting the hearing officer was "exceptionally patient" with father during his cross-examination of respondents' witnesses. The trial court explained father continually testified during his cross-examinations instead of asking questions, and to accommodate father's need to tell his side of the story, the order of the proceedings was altered, with the cross-examination of Lazalde put on hold so father could testify. The hearing officer repeatedly helped father formulate questions during his cross-examinations and only cut him off when he continued to argue the same points over and over with the witnesses, and even then, father was afforded great leeway.
We have reviewed the grievance hearing transcript and agree with the trial court's assessment of the proceedings, as well as its finding that father was given ample time to present his case. In this respect, father was afforded a fair hearing.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
SMITH, J. WE CONCUR: DETJEN, Acting P.J. FRANSON, J.