IN RE I.C.

Appellant’s Opening Brief on the Merits

Cal.December 10, 2015

SUPREME COURT FILED IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PFC 10 2015 In re I.C., A Person Coming Underthe No. 8229276 Frank A. McGuire Clerk Juvenile Court Law Deputy ALAMEDA COUNTYSOCIAL Court of Appeal Case SERVICES AGENCY, No. A141143 Petitioner and Respondent, Alameda County Superior Court Case No. V. $J12019578-01 Alberto C., Objector and Appellant. APPELLANT, ALBERTO C.’S, OPENING BRIEF ON THE MERITS After the Published Decision by the-Court ofAppeal First District, Division Two Filed August 6, 2015 Louise E. Collari Attorney-at-Law Ca Bar # 156244 4115 BlackhawkPlaza Circle Suite 100 Danville, CA 94506 (925) 487-3795 louisecollari@gmail.com Attorney for Appellant father, A.C. Under AppointmentBy the Supreme Court of California Under the First District Appellate Project’s Independent Case System IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re I.C., A Person Coming Underthe No. 8229276 Juvenile Court Law ALAMEDA COUNTY SOCIAL Court of Appeal Case SERVICES AGENCY, No. A141143 Petitioner and Respondent, Alameda County Superior Court Case No. Vv. Alberto C., Objector and Appellant. $J12019578-01 APPELLANT, ALBERTOC.’S, OPENING BRIEF ON THE MERITS After the Published Decision by the-Court of Appeal First District, Division Two Filed August 6, 2015 Louise E. Collari Attorney-at-Law Ca Bar # 156244 4115 BlackhawkPlaza Circle Suite 100 Danville, CA 94506 (925) 487-3795 louisecollari@gmail.com Attorney for Appellant father, A.C. Under Appointment By the Supreme Court of California Under the First District Appellate Project’s Independent Case System TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTIONS PRESENTED 10 INTRODUCTION 10 STATEMENT OF THE CASE AND FACTS 14 A. Juvenile Court Proceedings 14 1. Events preceding thefiling ofthe section 300petition 14 a. July 2012 molestation of I.C. by Oscar, the neighbor 14 b. 1.C.’s statements on September 11, 2012 16 2. The Section 300 Petition 20 3. Jurisdiction and contested hearing 21 a. Mother’s testimony 22 b. Testimony ofsocial worker, Sylvina Cooper 23 c. Testimony offather’s adult daughter, Aryerine C. “RJ” 24 d. Court’s decision on jurisdiction 25 4. Disposition 26 ARGUMENT 30 I. THE JUVENILE COURT ERRED WHEN IT FAILED TO DETERMINE WHETHER THE TRUTHFULNESS OF THE MINOR AS A HEARSAY DECLARANT WAS “SO CLEAR FROM THE SURROUNDING CIRCUMSTANCES THAT THE TEST OF CROSS-EXAMINATION WOULD BE OF MARGINAL UTILITY” AS REQUIRED BY INRE LUCERO L., SUPRA, 22 CAL.4TH 1227 A. Introduction 30 30 Hearsay Evidence is Generally Inadmissible, Except Under Specific and Limited Exceptions 33 A Hearsay Statement May be Admitted Into Evidence But May Still Not Be Sufficient, by Itself, To Establish Jurisdiction 34 Over the Last Twenty-Five Years, the Courts and the Legislature Have Created Various Exceptions to the Hearsay Rule to Allow Hearsay Evidence to Be Admitted in Juvenile Dependency Hearings 36 1. Introduction 36 a. Creation of the Social Study Hearsay Exception in MalindaS. 37 b. Creation of the “Child Dependency Hearsay” Exception in Carmen O. 40 c. Cindy L. Upheld the Child Dependency Hearsay Exception and Added the Requirement That a Child’s Hearsay Statements Must Possess Indicia of Reliability Plus Corroboration Before Being Admitted at a Jurisdictional Hearing 41 d. The Legislature Responds to Due Process Concerns Raised by the Rulings in Malinda S. by Amending Section 355 to Provide That Hearsay Evidence by Itself Is Not Sufficient To Establish Jurisdiction Subject to Various Exceptions 44 e. This Court in Lucero L. Further Refined the Use of Hearsay Statements of a Truth Incompetent Non-Testifying Witness as the Sole Basis for Establishing Jurisdiction by Removing Cindy L.’s Corroboration Requirement But Required That the Time, Content 3 and Circumstances ofthe Hearsay Statement Provide Sufficient Indicia of Reliability Such That the Test of Cross Examination Would Be of Marginal Utility 46 i. Introduction 46 ii. Cross-examination has historically been the critical means by which a witness’s credibility is assessed 47 iii. When a minoris not availablefor cross-examination, Lucero L. held that due process requires that ‘time, content and circumstances’ ofthe statementprovide sufficient indicia ofreliability to “ensure that the child’s “truthfulness is so clearfrom the surrounding circumstancesthat the test of cross-examination would be of marginalutility.” 48 iv. The Lucero L. Plurality and the Concurring Opinions recognized that simply because a hearsay statement might be admitted into evidence did not infuse that statement by itselfwith the necessary trustworthiness and reliability to be the sole basisfor ajurisdictionalfinding 51 Vv. Conclusion 52 In L.C., The Juvenile Court Failed to Apply the Lucero L. Test of Clear Truthfulness to the Hearsay Statements ofthe Minor Resulting in A Jurisdictional Finding Based Solely on the Unreliable, Confused Statements of a 4 Three-Year-Old Non-Testifying Truth Incompetent Minor 53 II. THE COURT OF APPEAL ERRED WHENIT AFFIRMED THE TRIAL COURT’S JURISDICTIONAL FINDING WITHOUT REVIEWING THE ENTIRE RECORD FOR SUBSTANTIAL EVIDENCE OF THE MINOR’S CLEAR TRUTHFULNESS 58 A. CONCLUSION When the Hearsay Statements ofa Truth Incompetent, Non-Testifying Minor Are the Sole Basisfor Jurisdiction, a Court ofAppeal’s Failure to Review the Entire Record For Substantial Evidence ofthe Minor’s Clear Truthfulness As Required Under the Mandate of Lucero L. Results in a Violation ofa Parent’s Due Process Protections 58 Introduction ofa Videotape Recording ofthe Minor’s Hearsay Statements That Are the Same As Those Included In a Social Study Report Does Not Equal Cross-Examination ofthe Non-Testifying Witness and Does Not By ItselfMake the Hearsay Statements More Reliable 63 69 CERTIFICATE OF WORD COUNT 70 TABLE OF AUTHORITIES FEDERAL AUTHORITIES California v. Green (1970) 399 U.S. 149 48, 68 Davis v. Alaska (1974) 415 U.S. 308 48 Humphries v. Cty ofLos Angeles (9th Cir. 2009) 554 F.3d 1170 32 Idaho v. Wright (1990) 497 U.S. 805 11, 43 Marylandv. Craig (1990) 497 U.S. 836 13 Matthews v. Eldridge (1976) 424 U.S. 319 49 Meyers v. Contra Costa County Dept. ofSocial Services (9th Cir. 1987) 812 F.2d 1154 3] Santosky v. Kramer (1982) 455 U.S. 744 13, 49 U.S. Constitution, 14th Amendment 48, 49 STATE CASES Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 32, 33 Buchanan v. Nye (1954) 128 Cal.App.2d 582 48 Englebretson v. Industrial Acc. Com. (1915) 170 C.793 34 Gregory v. State Bd. ofControl (1999) 73 Cal.App.4th 584 34 Hochheiser v. People (1984) 161 Cal.App.3d 777 65 Inre April C. (2005) 131 Cal.App.4th 599 54 In re B.D. (2007) 156 Cal.App.4th 975 31, 54, 55 Inre Carmen O. (1994) 28 Cal.App.4th 908 34, 36, 40-42, 51 In re Cindy L. (1997) 17 Cal.4th 15 25, 34, 37, 40-44, 46, 47, 51, 55 In re Emilye A. (1992) 9 Cal.App.4th 1609 31 In re Guardianship ofAnn S. (2009) 45 Cal.4th 1110 31 Inre LC. (2015) 239 Cal.App.4th 304 11, 12, 30, 35, 37, 46, 48, 53, 55, 56, 60-64, 68, 69 In re James R. (2009) 176 Cal.App.4th 129 58 Inre J.K. (2009) 174 Cal.App.4th 1426 58 In re Lucero L. (2000) 22 Cal.4th 1227 10-13, 25, 30, 34-37, 40, 46-64, 67-69 In re Malinda S. (1990) 51 Cal.3d 368 31, 32, 34-40, 44, 46, 52 In re Savannah M. (2005) 131 Cal.App.4th 1387 58 People v. Bassett (1968) 69 Cal.2d 122 59 People v. Eccleston (2001) 89 Cal.App.4th 436 65, 66 People v. Johnson (1980) 26 Cal.3d 557 58, 59 STATE RULES AND STATUTES California Constitution Article I 49 California Rules of Court Rule 5.534(d) 31 Rule 5.684(f) 31 Evidence Code § 701 46 § 780 67, 68 § 1200, subdivision (a) 33 § 1200, subdivision (b) 33 § 1240 34 § 1242 34 § 1370 43 § 1370, subdivision (b)(3) 43 Penal Code § 11165.1 14 § 11167.5, subdivision (b) 32 § 11169, subdivision (f) 32 Welfare and Institutions Code § 202, subdivision (a) 30 § 281 38 § 300 14, 29, 31, 39, 46, 55, 57, 58 § 300, subdivision (a) 25, 31 § 300, subdivision (b) 21, 25, 31 § 300, subdivision (d) 14, 20, 25, 29, 31, 56, 57 § 300, subdivision (e) 25, 31 § 300, subdivision (j) 20, 25, 26, 31 § 300, subdivision (1) 25, 31 § 300.2 30 § 355 36-38, 44-47, 50, 55 § 355, subdivision (a) 31, 37-39 § 355, subdivision (b) 34, 39 § 355, subdivision (c)(1) 45 § 355, subdivision (c)(1)(B) 37, 45, 50, 51 § 356 31 § 358 31 § 366.26 31 OTHER AUTHORITIES Adams, Interviewing Methods and Hearsay Testimony in Suspected Child Sexual Abuse Cases: Questions ofAccuracy (1997) 9 Forensics Journal 1/2 http:)/www.ipt-forensics.comjournal/volume9/ j9_1_4.htm 66, 67 EVIDENCE,Black’s Law Dictionary (17c) (10th ed. 2014) 44 Cohn, In re Malinda S. and its Progeny: Are Child Protection Measures in California Dependency Hearings Impermissibly Infringing on Parental Rights? (1995) 16 J. Juv.L. 53 33, 38, 39, 44 Fine, Where Have All the Children Gone? Due Process and Judicial Criteriafor Removing Children From Their Parents’ Homes in California, (1992) 21 Sw.U. L.Rev. 125 32 Legis., Analyst, Enrolled Bill Rep., Sen. Bill No. 86 (12995-1996 Reg. Sess.) May 9, 1995 44, 45 Note, Should We Believe the People Who Believe the Children? The Needfor A New Sexual Abuse Tender Years Hearsay Exception Statute (Winter 1995) 32 Harv.J. on Legis. 207 43 Ritsema, Testimony ofChildren via Closed Circuit Television in Indiana: Face (to Television) to Face Confrontation, (1989) 23 Valparaiso ULL. Rev. 455 65 Seiser & Kumli on California Juvenile Court Practice and Procedure, (2015) §2.110[12][c}.) 38, 44 Traynor, The Riddle ofHarmless Error (1970) 59 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re I.C., A Person Coming Under the No. 82292767 Juvenile Court Law ALAMEDA COUNTY SOCIAL Court ofAppeal Case SERVICES AGENCY, No. A141143 Petitioner and Respondent, Alameda County Superior Court Case No. V. $J12019578-01 Alberto C., Objector and Appellant. OPENING BRIEF ON THE MERITS FOR APPELLANT FATHER ALBERTOC. QUESTIONS PRESENTED 1) Did the juvenile court err byfailing to determine whether the truthfulness ofthe minoras a hearsay declarant was “so clear from the surrounding circumstancesthat the test of cross-examination would be of marginal utility” as required by In re Lucero L. (2000) 22 Cal.4th 1227? 2) Did the Court of Appeal err by affirming thetrial court’s jurisdictional finding without reviewing the entire record for substantial evidence ofthe minor’s clear truthfulness? INTRODUCTION At issue in this case is whetherthetrial court’s jurisdictional finding that appellant father Alberto C. had sexually abused his daughter, and the Court ofAppeal’s subsequent affirmanceofthat finding, correctly applied the standard set forth by this Court in In re Lucero L., supra, 22 Cal.4th 1227 (Lucero L.). 10 This Court in Lucero L. required that the clear truthfulness and reliability of the hearsay statements of a truth incompetent non-testifying young child be established before allowingthat hearsay statement to be the sole basis for a jurisdictional finding. It is father’s contention that not only was the Lucero L. mandate incorrectly implemented by both the juvenile court and Court ofAppeal, but that the majority’s decision in In re LC. (2015) 239 Cal.App.4th 304,reh’g denied (Aug. 26, 2015), review granted Oct. 28, 2015 (S229276) (C.) must be overturned as it eviscerates the due process protections previously provided by this Court to a parent whois placedin the difficult position of refuting an uncorroboratedallegation of sexual abuse of his or her own child. 7.C. also creates binding appellate precedent directly contradicting Lucero L., thus leading to confusion among lowercourts. In Lucero L., this Court established that the hearsay statements of a truth incompetent non-testifying minor may notbe relied on exclusively to establish jurisdiction in dependency proceedings unless the court finds that the “time, content and circumstancesofthe statement provide sufficient indicia of reliability.” (Lucero L., supra, 22 Cal.4th at p. 1248.) The Lucero L. court emphasized, The importance ofjuvenile court scrutiny of the statements of young children whoare both legally incompetent and insulated from cross-examination. At least in the case of a truth incompetent minor, the court may rely exclusively on these out-of-court statements only ‘if the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be ofmarginal utility...’ (idaho v. Wright (1990) 497 U.S. 805, 820.) (Lucero L., supra, 22 Cal.4th at 1249.) The “test of cross-examination” referenced in Lucero L. required that for a juvenile court to assert jurisdiction over a dependent minor based solely on out-of-court hearsay statements, the court must be convincedthat 1] the declarant - the minor — is so clearly telling the truth that,were the minor able to testify, the juvenile court could not imagine that cross-examination would be useful whatsoever to determine the hearsay statement’s reliability. Despite this clear mandate, in the case at bar, the majority opinion by the First District Court ofAppeal, Division Two, adopted a “novel application” ofthe Lucero L. standard which was premised onthe incorrect assertion that “obviously, the ‘test of cross-examination’ does notrefer to the minor.” (.C., supra, 239 Cal.App.4th at p. 308.) As Justice Stewart pointed outin the dissent, the /.C. majority “precipitously acquiescedin a trial court’s determination of a hearsay declarant’s credibility without further review”given the majority’s belief in the “scrupulousness with whichthe juvenile court evaluated the pros and consofthe hearsay statements.” (/d., at pp. 325, 346 (dis. opn.).) The “scrupulousness”of a juvenile court’s review of the evidence presented to it was not the standard set forth by this Court in Lucero L. Allowing the /.C. majority’s “novel application” to stand undermines what this Court in Lucero L. stated was constitutionally required to establish jurisdiction based solely on-eut-of- court statements of a non-testifying truth incompetent minor. In contrast, in this case, the juvenile court relied solely on the admittedly unclear, confused, uncorroborated, and unchallenged hearsay statements of a non-testifying truth incompetent three-year-old child to label her father as a child molester, and to break the family apart. The First District Court of Appeal, Division Two, then essentially rubberstamped the juvenile court’s decision when it declined to review the record for substantial evidence of the child’s clear truthfulness. (-C., supra, 239 Cal.App.4th 304.) Juvenile dependency courts are charged with the difficult task of maintaining the delicate balance betweenthe state’s interest in protecting children from abuse and a parent’s “fundamental liberty interest” in the 12 “care, custody, and management”oftheir children. (See Marylandv. Craig (1990) 497 U.S. 836, 852; Santosky v. Kramer (1982) 455 U.S. 744, 753.) Recognizing the dangers inherent in that balancing act, the due process clause of the Fourteenth Amendmentguaranteesthat, “the fundamentalliberty interest of natural parents . ...does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state.” (Santosky v. Kramer, supra, 455 U.S. 745, 753.) Allegations of sexual abuseofa child by a parent highlight the tension between, on the one hand, protecting a child from abusethat is often hidden from the view of others and, on the other hand, ensuring that a parent’s due processrights are protected so that a parent is not unjustly deprived ofhis orher liberty interests in raising his or her child and that a parent is not falsely labeled a child molester with all the vilification and humiliation such a label brings. Accordingly, when allegations of sexual abuse of a child by his or her parent made, the need for reliable findings by the juvenile court is crucial. Ensuring that the hearsay evidence used to support a jurisdictional finding is sufficiently constitutionally reliable was the intent of this Court in Lucero L. Without the assurance of any corroborating evidence,it is essential that the courts-are able to guarantee the trustworthiness ofthose unsupported hearsay statements before labeling a parent as a child molester and breaking a family apart. The correct and consistent application of the. standard proscribed by this Court in Lucero L. is essential to protect the child, the parents, and the state from the effects of an unsupported jurisdictional finding with its far reaching and long lasting consequences. 13 STATEMENT OF THE CASE AND FACTS A. The Juvenile Court Proceedings Father appealed from the juvenile court’s jurisdictional and dispositional findings entered on March 27, 2013. These findings were based on a Welfare andInstitutions Code! section 300 petition filed on September 14, 2012, pursuant to subdivision (d).” (2CT 498.) 1. Events which precededthefiling ofthe section 300petition a. July 2012 molestation of I.C. by Oscar, the neighbor In 2012, then three-year-old I.C. lived with her mother, her father, and her five-year-old brother, J.C. Her parents had a stable marriage, participated in social activities and were active membersoftheir community. Mother and father were both employed, with father having been employed with the same_employer for over 23 years. Neither parent had any criminal arrests or convictions in Alameda County, or any prior child welfare history. (ACT 57, 65; Supp CT 523, 563, 567; 7/10/13-RT 20, 21; 11/14/13 RT 110.) On July 2, 2012, mother discovered that an eight-year-old neighbor, Oscar, had molested I.C. during a play date. E.C., her five-year-old brother, ! All further statutory references are to the Welfare and Institutions Code, unless specified otherwise. 2 Section 300, subdivision (d) states as follows: Any child who comes within any of the following descriptions is within the jurisdiction ofthe juvenile court which may adjudge that person to be a dependent child ofthe 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 memberofhis or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse whenthe parent or guardian knew or reasonably should have knownthat the child was in-danger of sexual abuse. (§ 300, subd.(d).) 14 J.C., and Oscar were playing in I.C. and J.C.’s bedroom. Mother wentto check on the children and found the bedroom door closed. When mother opened the door, she saw a blanket over the bunk bed and when mother entered, the children “moved really fast.” (1/14/13 RT 41, 1/25/13 RT 16, 17.) I.C. was in the back comer ofthe bed, Oscar was in the middle and J.C. was at the side of the bunk bed. (1/25/13 RT 17.) Mother asked what they were doing andI.C.said they were kissing, J.C. began to cry, and Oscar said they weren’t doing anything. (1/14/13 RT 41; 1/25/13 RT 18.) Mother asked J.C. what was happening and J.C. said that Oscar was kissing I.C and “he puta train in her.” (1/14/13 RT 42.) Mother noticed that a woodentrain was on the bed in between the children. (1/14/13 RT 42, 1/25/13 RT 17.) Mother “freaked out” and told Oscar to get out ofthe house. (1/14/13 RT 42.) After Oscar left, J.C. told mother that Oscar was laying on top ofI.C. and kissing her and said “we’re going to fuck.” (1CT 87-88.) An officer with the Fremont Police Department responded to the homeandinterviewed mother, I.C. and J.C. (ACT 86.) I.C. told the officer that Oscar asked her to remove her shoes, socks, pants and underwear, inserted a woodentrain into her vagina, and kissed her on the mouth. Whenasked if she was hurt, I.C. told the officer that her vagina hurt. (1CT 87-88.) J.C. told the officer that Oscar told him to “look away several times.” (1CT 87.) J.C. stated that he looked away “most ofthe time” but he looked and saw Oscarput a train inside I.C.’s vagina. (1CT 87.) After speaking to police, mother took I.C. to Kaiser Hospital in Fremont for a medical examination. (1CT 63, 87.) The doctor examined I.C. and told mother that he could not tell whether Oscar had usedthe train or if he had sex with I.C. (1/14/13 RT 46.) Mothertestified that the doctor stated that “he could see there was trauma but the hymen wasintact.” (1/25/13 RT 23.) 15 Motherattempted to obtain counseling for I.C. after the incident but was unsuccessful as she had difficulty finding a counselor who could work with such a young child. (1/14/13 RT 46.) Mother, herself, entered therapy due to her distress over the incident. (1CT 150.) For the next few months, the family avoided any contact with Oscar, but had manyconversations about what had happened. (1/14/13 RT 30, 46, 49 56, 57; 1/25/13 RT 27, 30, 38-39.) The family used correct anatomical terminology, including vagina and penis, when discussing the incident with LC. (1/14/13 RT30, 56, 57; 1/25/13 RT 27, 30, 38-39.) During these family discussions,I.C. spoke freely in front of father who tried to comfort I.C. and give advice. (1/14/13 RT 57.) I.C. and the family did not see Oscar for the remainderof the summer until J.C. started school on September 7, 2012. (1 CT 24, 57; 1/14/13 RT 59, 60, 67.) Duringthatfirst week of school, J.C. told mother in front of I.C. that Oscar pushed him downtheslide at school, followed him into the lunchroom, called him a “loser” and destroyed his lunch. (1CT 24, 57; 1/14/13 RT 59, 60, 67.) I.C. was frightened and confusedthat Oscar was going to the same schoolas J.C., so mother talked to her aboutit “all weekend.” (1/14/13 RT 66.) b. LC.’s Statements on September 11, 2012 On September 11, 2012, four days after seeing Oscar for the first time since the molestation, I.C. told mother as she was going to bed that “daddy put his penis on me.” J.C. was in the room andcorrected I.C. saying, “No, that’s what Oscar did.” (1/14/13 RT 16-18, 22, 24, 32.) LC. told mother it happened on the lower bunk bedbut did not say when father did these things nor did she mention anything about being hurt or that she was afraid of father. (1/14/13 RT 20, 22, 24, 32, 36.) Mothertried to learn more from I.C. but her story “didn’t seem like it all went together and made very muchsense.” (1/14/13 RT 23.) 16 The next morning, September 12, mother asked I.C. about her statement the night before and J.C. said “I was just kidding.” (1/14/13 RT 25.) Mother decided it was best to take I.C. to preschool, even though it was nother regular day, since “she told me something within the last 12 hours that was rather alarming.” (1/14/13 RT 15, 16, 25, 26.) Mother woke father before she left and told him whatI.C. had said. Father responded, “that’s crazy.” (1/14/13 RT 28.) Later that same day,I.C. told a preschool worker that her father was madat her andhit the wall causing a hole in the wall. (1CT 93.) IC. then further stated “Daddy took his penis and put it on me. Mommyis upset and I went to the doctor. I am fine.” (1CT 93.) Both the Fremont police and a social worker respondedto the school. (1CT 92.) The emergencysocial worker who first interviewedI.C. at the preschool reported that I.C. “was not ableto tell the difference betweentelling a truth andtelling a lie.” (ACT 24.) Mother wascalled and I.C. was takento the police station. (1CT 92.) I.C. and J.C. were transported to the Child Abuse Listening and Interviewing and Coordination Center (CALICO)facility to be interviewed. (1CT 93.) At the beginning of the interview,I.C. was asked, “Do you promise that you will tell me the truth”? I.C. responded, “Yep.” The interviewer asked “Are you goingto tell me any lies’? I.C. responded, “Nope.” The interviewer proceeded to ask I.C. what she had donethat day, before the interview. (9/12/12 Aug? RT 4-6.) LC.told the interviewerthat before coming to the interview she had watched a movie, took a nap with her babysitter, went to the store with her mother, went to the park with her father, went to school, played at home and wentto San Francisco.(9/12/12 3“Aug RT”will refer to the additional reporter’s transcript that was provided in response to father’s motion to transcribe the CALICO DVDs. 17 Aug RT 4-6.) Noneofthese statements, except for the fact that she had goneto preschool, were accurate. (1CT 92, 93, 105; 1/14/13 RT 15, 16, 25, 26.) The interviewer did not question I.C.’s version of the day’s events but proceeded with her questions. LC. told the interviewer that she had told Miss Karen at preschool that “daddy put penis on me”... “then put train on me, then he put a flower on meyesterday” and he “put a necklace on” her. (9/12/12 Aug RT 8.) IC. stated that this happened on her brother’s bed but also on the bed in the CALICOinterview room and on a bean bag. (9/12/12 Aug RT 29-32.) LC. stated that father took off her shoes, pants, shirt, underwear and socks and that father did not have any clothes on and he kissed her. (9/12/12 Aug RT 10.) I.C. stated that she told her father to stop five times and that he can’t touch her vagina but he did not listen to her and “it did not feel good.” (9/12/12 Aug RT 11-12.) LC.stated that this had occurred the day before when mother was at work and J.C. was at school. (9/12/12 Aug RT 18-19.) 1.C. stated that she ran awayto her house andthe car after it happened and she was by herself. (9/12/12 Aug RT 24-25.) IC.said that “daddy was not here and was somewhereelse” when this happened. (9/12/12/ Aug RT 25.) I.C. said that she called her “mom and the police officer.” (9/12/12 Aug RT 16.) LC. said that when she told mother, mother said “daddy was going to be in so muchtrouble”and that RJ, her adult sister, told her that father was goingto jail forever. (9/12/12 Aug RT 27, 55.) I-C. said that father told the police that he promised he wouldnot doit again.* (9/12/12 Aug RT 27.) 4 The Fremontpolice report stated that father cooperated with the police officers when he was interviewed on September 12, 2012. (1CT 97.) Nothingin the record indicated that I.C. knew of such a conversation between father and police and, in any event, father consistently denied molesting her. 18 During the interview I.C. stated that a train was a penis and that the train was red. (9/12/12 Aug RT 21.) LC.also stated that she had seen father touch RJ and put his penis andtrain on her as well. (9/12/12 Aug RT 32-34.) I.C. stated this happened on J.C.’s bed and “everybody” wasin the bed including RJ, herself, her father, her babysitter and the babysitter’s sister. (9/12/12 Aug RT 36-37.) At the end of the interview,I.C. was asked if she had seen any “adult movies.” J.C. responded that she watched “Rapunzel” on television, that a ghost had put the movie on, and that she heard a knockingat the door and thought it was a ghost. (9/12/12 Aug RT 48-49, 51-53.) After the CALICO interview,I.C. was transported to Children’s Hospital for a sexual assault exam. (1CT 105.) The Sexual Assault Response Team (SART)report did not note any visible traumato I.C. but provided a diagnosis ofvulvovaginitis. (1CT 105, 168, 173.) On September12, the police also conducted a search of the family home. The family’s babysitter, Bianca, was at the house and was interviewed by the police. Bianca indicated that she had been working with the family for six months. She was not aware of anything inappropriate at the house and stated that father had never doneor said anything inappropriate to her. (1CT 97.) During the police search ofthe residence, an alternate light source was used in the children’s bedroom to search for the presence of suspected semen or other biological fluids. None were found. (1CT 99, 103.) No biological evidence was found in the hamper or next to the washer/dryer. (1CT 103.) The police report made no mention of any holes foundin the interior walls ofthe home. (1CT 99.) That same day, Fremont police officers contacted father at his place of employment. Father was cooperative and agreed to come to Fremontto talk to a detective. (1CT 97, 98.) Father also agreed to a search ofhis car, which did not contain any “illegal items or contraband.” (1CT 97.) 19 2. The Section 300 Petition On September 14, 2012, the Alameda County Social Services Agency(hereinafter “the Agency”’) filed a petition pursuant to section 300, subdivisions (d) and (j) on behalf of minors I.C. and J.C., who were born in January 2009, and November 2006, respectively. (LCT 1.) The petition generally alleged that I.C. had been sexually abused byfather, that mother had failed to adequately protect her from the sexual abuse, and that mother knewor should reasonably have knownthat the child was in danger of sexual abuse. (1CT 4.) The petition alleged under subdivision (j) that J.C. wasat risk due to the alleged abuse of I.C. (ICT 5.) Specifically, under subdivision (d) the petition alleged the following: (d-1) 1) that on morethan one occasion,I.C. spontaneously stated that “Daddy put his penis on me”; 2) that I.C. had pointed to her vaginal area and complainedthatit hurt; 3) that I-C. stated that father put foreign objects in her vagina, including a flower, a train andthatit did not feel good; 4) that I.C.stated that father will take off her clothes and his clothes and lay on bed with her and kiss her on the mouth; 5) that father kissed her vagina whenshe wasin herbrother’s bed; and 6) that I.C. stated that she watched a movie where a boy kisses a girl and they were not wearing clothes; (d-2) that mother failed to protect I.C., in that I.C. told mother yet father continued to reside in the home; and (d-3) mother did not believe that father sexually molested I.C. (ICT 4.) At the September 17, 2012, detention hearing, counsel for father requested that the children be returned to mother. Father was willing to be out of the home immediately and agreed to a temporary restraining order to ensure his removal from the home.* (9/17/12 RT 4-5, 9.) The juvenile court > A temporary restraining order was issued by the juvenile court against father on October 2, 2012, which was scheduled to expire on December3, 2012. (ICT 140, 142-145.) 20 stated that it was notinclined to release the children and instead would give the social worker discretion to release the children to motherafter the Agency’s investigation was complete. (9/17/12 RT 12.) Counsel for father then asked that J.C. at least be placed with motherso he could start school. (9/17/12 RT 15.) The juvenile court similarly denied father’s request. (9/17/12 RT 15.) The juvenile court found that a prima facie showing had been madethat the children were described by section 300 andthe children were detained in foster care. (1CT 9.) A first amendedpetition was filed by the Agency on September 28, 2012, which addeda section 300, subdivision (b) allegation that father had a history of intermittent substance abuse.® (1CT 46, 49.) On September 29, 2012, the social worker exercised her discretion to return the children to mother with the requirement that father remain out of the home.’ (1CT 61.) 3. Jurisdiction and contested hearing The Agency’s October 2, 2012, jurisdiction and disposition report recommendedthat the children be declared dependents ofthe court, that the children be placed with mother with family maintenance services, and that father remain out ofthe home with child welfare services. (1CT 54.) The matter was underinvestigation by the Fremont Police Department but no criminal charges were everfiled against father. (1CT 65.) Father began supervised visits with the children in November 2012. (1CT 150.) The children were “very happy”to see their father and I.C. asked the social workerifher father could return home. (1CT 163.) © The subdivision (b) count was later dismissed by the court after the contested hearing. (1CT 186; 3/27/13 RT 8.) 7 The children remained in mother’s care, with father out of the home for the next seventeen months, up to and including when the appeal wasfiled in February 2014. (2CT 498.) 21 At the December 3, 2012, contested jurisdictional hearing, the DVD recordings of the CALICO interviewsof minors, I.C. and J.C., were viewed in the courtroom bythe court and all counsel. (1CT 157.) The Agency’s jurisdiction/ disposition report dated October 2, 2012, and addendum reports dated November26, 2012, and January 14, 2013, were admitted into evidence. (1CT 157; 1/14/13 RT 4.) The woodentrain was admitted as Father’s Exhibit A. (ICT 178.) The court heard testimony from mother, social worker Sylvina Cooper, and father’s older daughter, twenty-one-year old RJ3 (iCT 176, 179, 182.) LC. did not testify. No objections were made by father’s trial counsel to the admission of I.C.’s hearsay statements contained within the Agency’s variousreports, as well as within the CAILICOvideotape, which were all admitted into evidence. a. Mother’s testimony Mothertestified that at the time of the detention, I.C. had been attending preschool on Tuesdays and Thursdays from morning until approximately 3 pm. (1/14/13 RT 10, 25.) Mother’s work hours were typically 7:30 am to 6:30 pm Mondaythrough Friday. (1/14/13 RT 7.) Father worked the 5 pm to 12:30 am shift as a custodian with Able Building Maintenance. (1/14/13 RT 8.) On Mondays, Wednesdaysand Fridays, father was in charge of I.C. during the day. He would take J.C. to school and then go to the park with LC. (1/14/13 RT 25, 26.) Bianca, the family’s babysitter and the girlfriend of mother’s stepson, would cometo the house in the afternoon to care for the children and then father would leave for work. (1/14/13 RT 11, 69.) 8 RJ is I.C.’s adult sibling who is named Aryerine but is known to the family as “RJ”. (3/14/13 RT 9.) 22 Mothertestified that after the July 2012, incident with Oscar, she carried the woodentrain that had been on the bed with herin a plastic bag and keptit in the trunk of her car. (1/13/12 RT 54.) Mothertestified that she showedthe train to the doctor and took it to the emergency room in July. Mother had not hadthe train in front to the children since the July incident because she “didn’t want to remind them.” (1/13/12 RT 55.) Father did not have accessto the train during that time. (1/13/12 RT 55.) b. Testimony of Agency social worker, Sylvina Cooper Agency social worker Sylvina Cooper, whom theparties stipulated was an expert in risk assessment for child abuse and child sexual abuse, was assignedto the family in September 2012. (1/25/13 RT 41, 44.) Coopertestified that the children returned to the home of mother with father out ofthe home in mid-October 2012° and there had been nosafety incidents since that time. (1/25/13 RT 47, 48.) Coppertestified that she believed that “most ofthe statements I.C madeare credible” and that “most ofwhat she said her father did to heris credible.” (1/25/13 RT 53.) Cooper believed that I.C. knew the difference between the truth and a lie. (1/25/13 RT 53.) Coopertestified that I.C. reported to mother, the day care center, the emergency child welfare worker, Alma Villa, and the CALICOinterviewer that she was sexually molested by father. (1/25/13 RT 57.) Cooper believed that I.C. was consistent in telling the same story to each person. (1/25/13 RT 58.) Coopertestified that I.C. gave a “very detailed description ofwhat she said that her father did to her.” (1/25/13 RT 66, 67.) a ° The Agency’s October 17, 2012, jurisdiction and disposition report stated that the social worker had exercised her discretion on or about September 29, 2012. (ICT 61.) 23 Whenquestioned regarding I.C.’s statements during the CALICO interview that some molestation occurred in the bed in the CALICO interview room, Coopertestified that it was not unusualfor a three-year-old child to get time and space confused. (1/25/13 RT 59.) Cooper believed that I.C. was using a metaphor whenshe talked about father using a toy train. (1/25/13 RT 60.) Coopertestified that some of I1.C.’s statements were madeat the end ofa thirty minute interview so I.C. was “getting tired” and that it was “not unusual for a child that age to begin to fantasize about movies, pictures, flowers.” (1/25/13 RT 60, 61.) Cooperalsotestified that it was possible that I.C. seeing the neighbor Oscar at school in Septembertriggered I.C.’s statements or that discussions in the home regarding the July incident could have an impact on the Septemberallegations against father. (1/25/13 RT 64, 76.) c. Testimonyoffather’s adult daughter, Aryerine C. “RJ” Father’s twenty-one year-old daughter RJ testified that she looked after I.C. and J.C. in January 2013 for three days when mother had to go out oftown. (3/14/13 RT 13.) RJ testified that I.-C. “kept touching herself downthere” and told RJ it was because Oscar hurt her. (3/14/13 RT 13, 18, 19.) LC. did not mention any molestation by father to RJ. Whenquestioned regarding I.C.’s statements in the CALICO interview, RJ testified that she had never been in bed with father, [.C., and the babysitter, and that father had never inappropriately touched everyone’s vaginas. (3/14/13 RT 10.) RJ never had any concern that father was inappropriate with I.C. and she had never seen father touch I.C. in an inappropriate way. (3/14/13 RT 10, 11, 15.) I-C. also never made allegations against father to her nor had she stated that she wasafraid of father. (3/14/13 RT 14, 15.) 24 d. Juvenile court’s decision on jurisdiction On March 27, 2013, the juvenile court madeits jurisdictional findings. Prior to rendering its decision the juvenile court acknowledged “this is a very difficult case because the evidence comes from a three-year old child who,at times, was very clear in her statement about what happened, and at other time was very unclear, and at times very confusing about the statements that she makes concerning what she alleged her father did to her.” (3/27/13 RT 2-3.) The juvenile court recognized that “essentially, all the court has to go on in this case is the hearsay statement of a three-year-old minor.” (3/27/13 RT 3.) After citing to In re Cindy L. (1997) 17 Cal.4th 15 (Cindy L.) and Lucero L., supra, 22 Cal.4th 1227, the juvenile court discussed evidence that it thought suggested that I-C.’s statements were both reliable and unreliable, but found that the “evidence that supportsreliability [is] more compelling.” (3/27/13 RT 6.) Basedsolely on I.C.’s hearsay statements, the juvenile court sustained the allegations and found the (d-1) and (d-3) allegations of the petition to be true by a preponderance of the evidence. (3/27/13 RT 7-8, 17.) The juvenile court did not sustain the subdivisions (d-2), (b), or (j) allegations. (1CT 186; 3/27/13 RT 8.) The subdivision (j) allegation involving I.C.’s five-year-old brother, J.C. was dismissed from the petition and J.C. was not made a dependentas it was found that J.C. was notat substantial risk of abuse.'° (1CT 186; 3/27/13 RT 9.) The matter was continued for a contested disposition. (1CT 187.) 10 Under section 300, subdivision (j), the court must find that the child's sibling has been abusedor 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 S G U L A N E UE IR E IG S V E N G I N O Te S A M M A E 25 A second amendedpetition conforming to the juvenile court’s decision wasfiled by the Agency on April 8, 2013. (1CT 192.) 4. Disposition A lengthy contested dispositional hearing washeld overa nine month period from May 13, 2013, to January 22, 2014. (2CT 296, 469.) The Agency continued to recommendfather remain out ofthe home because “none ofthe issues have been adequately addressed”, the social workercould not ensure that mother wasable to protect I.C. since mother did not believe that father molested I.C., and because father had taken care of I.C. in the past. (5/13/13 RT 17, 18.) Mother and father were both requesting that father be allowed to return to the family home. (1CT 218; 1/16/14 RT 43, 67.) The Agency’s jurisdiction/disposition report dated October 2, 2012, addendum report dated November26, 2012, addendum report dated January 14, 2013, and disposition report dated April 15, 2013, were admitted into evidence. (2CT 296; 5/13/13 RT 1-5.) The psychological evaluation of father prepared by Drs. Lask and Meyers and the psychosexual evaluation of father by Dr. Rachyll Dempsey were admitted into evidence. The CALICO DVDsofI.C. and J.C. were entered into evidence and the court took judicial notice of the prior testimony from social worker Sylvina Cooper, mother, and Aryerine C. (2CT 296; 5/13/13 RT 5-6, 15) There was additional testimony from social worker Sylvina Cooper, mother, and paternal aunt, Elsa C. Father’s experts, Dr. Terry Meyers, Dr. Mauricio Lask, and Dr. Rachyll Dempseytestified and the genderofeach 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 whetherthere is a substantial risk to the child. (§ 300, subd. (j).) 26 Agencyhad Dr. Brian Abbott testify on its behalf. Several articles providedby father and the Agency were also admitted into evidence." A psychological evaluation of father prepared by Dr. Meyers found “no indicators in the current evaluation to suggest that [father] would pose a dangerto anyone, and especially not his children. He has nohistory of violence or sexual acting out. In addition, there are no themesin his testing of a sexual or aggressive nature or pre-occupation.” (Supp CT 523.) A psychosexual evaluation prepared by Dr. Depmsey concludedthat father wasat a very low risk for recidivism as he had stable job, stable support system,no history of criminal behavior, no violent or previous sexual offending behavior, no current substance abuse problems, and good recreation use and leisure time. (Supp CT 563, 5567; 11/4/13 RT 86.) The Agency’s expert, Dr. Brian Abbott, never met or interviewed father or I.C. before making his evaluation of father. (8/20/13 RT 63; 12/20/13 RT 76.) Dr. Abbott testified that the indicators of danger he saw from reading the reports were that the court made a finding of sex abuse but that father’s age would indicate a risk mitigation factor. (8/20/13 RT 97.) Dr. Abbott did not believe that the assessments done of father by Dr. 'l Hanson, The Accuracy ofRecidivism Risk Assessment for Sexual Offenders: A Meta-Analysis (2007) (Father’s Exhibit G; Supp CT 569); Litwack, Actuarial versus Clinical Assessment ofDangerousness, (2001) 7 Pyschology, Public Policy & Law 409 (Father’s Exhibit H; Supp CT 612); Bonta & Andrews, Risk-Need-Responsivity Model for Offender Assessmentand Rehabilitation (2007) (Father’s Exhibit I; Supp CT 648); American Psychological Association Ethical Principle ofPsychologists and Code of Conduct (2010) (Petitioner’s Exhibit 2; Supp CT 680); Hanson & Morton-Bourgon, The Accuracy of Recidivism Risk Assessments for Sexual Offenders: A Meta-Analysis of 118 Prediction Studies (2009) Psychological Assessment(Petitioner’s Exhibit 3; Supp CT 697); Abbott, Throwing the Baby Out With the Bath Water; Is it Time for Clinical Judgment to Supplement Actuarial Risk Assessment? (2011) 21 J. Am. Acad.Psychiatry Laws 1 (Petitioner’s Exhibit 4; Supp CT 719) 27 Meyers and Dr. Dempsey were reliable methods to measure father’s risk of recidivism. (8/20/13 RT 62; 12/20/13 RT 21-23.) The social worker acknowledged that I.C. continued to enjoy regular supervised visits with her father outside of the family home. (1CT 222; 5/13/13 RT 32, 33; 6/24/13 RT 11.) The paternal aunt, who supervised the visits, testified that I.C. was always happyto see father and ran to him and hugged him. (6/24/13 RT 11.) When L.C. left the visits she would say “come on dad,let’s go home.” (6/24/13 RT 12.) I.C. had never missed a visit or stated that she did not want to attend a visit. (6/24/13 RT 13.) LC. wasnotfearful of father and “appeared comfortable in her father’s presence.” She was happyto see her father, and father’s interactions with I.C. were appropriate. (LCT 222, 2CT 425; 5/13/13 RT 51.) Mothertestified that she wanted father to be allowed home and did not think father being in the home would exposeI.C. to any danger. (10/21/13 RT 80.) Motherstated that even though she did not believe the allegation against father she had created a safety plan. (10/21/13 RT 80.) Aspart ofthe safety plan, mother stated that she moved J.C. into full time day care whichis available from 6:30 in the morning until 6:30 at night. Motheralso changed jobs to a more flexible job so that she could work from homeifher daughter were sick. (10/21/13 RT 80, 88, 120.) Mother stated that the only commitment she had outside of the home was church on Sundays. (10/21/13 RT 121.) ILC. accompanied mother on any errands that she did. (10/21/13 RT 121.) Mothertestified that father played soccer on Saturdays from 8 a.m. to 3 p.m. so Sunday wasthe only day they wereall together as a family. (10/21/13 RT 125.) Mothertestified that if father were to come homethat there would be notimethat I.C. would be left with him alone. (10/21/13 RT 124.) Mother explained that she had a cousin whoresided in Marin and a neighbor who would be able to help mother with child care if necessary. 28 (10/21/13 RT 80, 88, 111.) In addition, sometimeshersister-in-law, who lived in the same neighborhood, will look after I.C. if she needs help. (10/21/13 RT 122.) Motherstated that her sister-in-law, Elsa, was available any time that she called. (10/21/13 RT 123.) During her testimony, Agency social worker Cooper acknowledged that mother had followed all of the Agency’s requirements with regard to LC. having contact with father. (5/13/13 RT 31.) However, Cooperfelt that mother wasa safety issue because she would not adequately supervise father and I.C. “emotionally.” (5/13/13 RT 46, 47.) At the time of the contested hearing, social worker Cooper had not discussed a safety plan with mother. (5/13/13 RT 27.) Coopertestified that if the court ordered father to return to the home, the social worker would request a safety plan where there would be a third party monitoring father and child at all times. (5/13/13 RT 49.) On February 5, 2014, seventeen months after I.C. was detained, the court found by clear and convincing evidence that I.C. wasat risk if father returned home. The court indicated that it gave “very little weight” to father’s experts due to the testimony ofthe Agency’s expert that the assessments performed by father’s experts were unreliable. (2/5/14 RT 22.) Thecourt indicated that two factors it considered were that mother did not believe there had been any sexual abuse of I.C. by father and therefore was unable to protect I.C. and that the court did not believe that mother’s safety plan wasfeasible. (2/5/14 RT 22-23.) The court ordered I.C. to reside in the homeofmother with family maintenance services andthat father remain out ofthe home. The Agency was given discretion to offer informal child welfare services to father. (2CT 485.) The court stated that it had found by a preponderance of evidence that the allegations of the section 300 petition were true under subdivision (d) so it took jurisdiction. However, it acknowledgedthat “if there had 29 been a different standard or different burden of proofin this case as to jurisdiction, the court may have madedifferent findings.” (2/5/14 RT 20.) On February 26, 2014, father filed a timely notice of appeal of the juvenile court’s jurisdictional and dispositional findings. (2CT 498.) In a published opinion, a majority of the Court ofAppeal, First District, Division Two,affirmed the juvenile court’s jurisdictional and dispositional findings and orders. (.C., supra, 239 Cal.App.4th 304.) A forceful dissent by Justice Stewart concludedthat the jurisdictional findings should have been reversed as a review ofthe entire record did not reveal substantial evidence of I.C.’s clear truthfulness. (/d., at p. 328, 349-350 (dis. opn.).) Fatherfiled a petition for rehearing which was denied by the Court of Appeal on August 26, 2015. Justice Stewart would have granted the petition for rehearing. Fatherfiled a Petition for Review to this Court which was granted on October 28, 2015. ARGUMENT I. THE JUVENILE COURT ERRED WHENIT FAILED TO DETERMINE WHETHER THE TRUTHFULNESS OF THE MINORAS A HEARSAY DECLARANT WAS “SO CLEAR FROM THE SURROUNDING CIRCUMSTANCES THAT THE TEST OF CROSS- EXAMINATION WOULDBE OF MARGINAL UTILITY” AS REQUIRED BY INRELUCEROL. (2000) 22 CAL.4TH 1227 A. Introduction Juvenile dependency laws were created to provide maximum safety and protection for children who are being abused while preserving and strengthening family ties whenever possible. (§§ 202, subd. (a), 300.2.) 30 Dependency proceedingsare initiated by the state’s filing of a petition pursuantto section 300 setting forth allegations of abuse under one or more of the enumerated subdivisions. (§ 300.) At the jurisdictional hearing, the court makes factual determinations about whether a child has been abused or neglected as defined in section 300, subdivisions(a) through (j). It is at this hearing that the interests ofthe child, state and parentin fact-finding are equally shared. The findings madeat the jurisdictional hearing chart the future course ofthe family. A “not true” finding on all counts will result in the court not assuming jurisdiction over the child and dismissing the section 300 petition, thus ending the case. (§ 356.) A “true” finding will cause the court to assume jurisdiction over the child, may lead to the removal of child, and can ultimately end in termination ofparental rights. (§§ 358, 366.26.) Dependency proceedings are not meant to punish the parent but only to protect the child. (in re B.D. (2007) 156 Cal.App.4th 975.) (B.D.) However, the adversarial nature of the proceedings cannot be overlooked as the social worker is charged with presenting evidence that a parent has abusedhis or her child. (See Jn re Guardianship ofAnn S. (2009) 45 Cal.4th 1110; Meyers v. Contra Costa County Dept. ofSocial Services (9th Cir. 1987) 812 F.2d 1154, 1157; Inre Emilye A. (1992) 9 Cal.App.4th 1609, 1709.) To establish jurisdiction over a child, the state only needs to prove the allegations ofthe petition are true by a preponderanceofthe evidence.!” (§ 355, subd. (a); Cal. Rules of Court, rule 5.534(d), 5.684(f).) The social worker’s report, with its collection of hearsay statements, is the state’s primary tool to sustain the section 300 petition. in re Malinda S. (1990) 51 Preponderanceofthe evidenceis the lowest standard available requiring only enough evidence to make it more likely than not that the fact that the state seeks to proveis true. 3] Cal.3d 368.) (Malinda S.) The low standard of proof, coupled with the use of the social worker’s report as evidence ofthe alleged abuse, allows the juvenile court to easily assumejurisdiction. However, a court’s decision to assumejurisdiction over a child greatly influences subsequentcourt actions. (Fine, Where Have All the Children Gone? Due Process and Judicial Criteriafor Removing Children From Their Parents’ Homes in California, (1992) 21 Sw.U. L.Rev. 125, 130-137.) Findings made in dependency proceedings have serious and long-term consequencesfor the child, the parent, and the family. In addition to the possibility ofremoval and termination ofparental rights, depending on the jurisdictional findings made, a parent may be placed on the Child Abuse Central Index (CACI) where he or she will remain until they reach the age of 100. (Cal. Pen. Code §11169, subd. (f).) Information contained on the CACTIis “available to a broad range ofthird parties for a variety ofpurposes,” including employment,licenses, volunteer opportunities, and child custody. (Humphries v. County ofLos Angeles (9th Cir. 2009) 545 F.3d 1170, 1177-1178; Cal.Pen Code § 11167.5, subd. (b).) In cases involving allegations of sexual abuse by a father against his daughter, courts have recognized that such a jurisdictional finding carries more “social opprobrium”than almost any other act. (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1728, 1752 (“Few crimes carry as much(or as much deserved) social opprobrium as child molestation. Most people would rather be accused of bank robbery.”].) (Blanca P.) Accordingly the, hearing on a contested petition alleging sexual abuseis . . . extraordinarily important. It is not the sort of thing to be rushed, or taken routinely. Allegations of child molestation are serious, they merit more than a rubber stamp. With the exception of death penalty cases,it is hard to imagine an area of law wherethere is greater need for reliable findings by the 32 trier of fact. The consequences ofbeing wrong — on either side — are too great. (Blanca P., supra, 45 Cal.App.4th 1738, 1754.) Few would deny the egregious nature of sexual abuse against one’s own child. These most vulnerable membersofsociety require special protection. However,it is equally essential that “dependency proceedings must comport with due process to ensure that parents and children will not be deprived of their relationship with one another and to ensure parents are not unfairly stigmatized.” (Cohn, In re Malinda S. and its Progeny: Are Child Protection Measures in California Dependency Hearings Impermissibly Infringing on Parental Rights? (1995) 16 J. Juv.L. 53, 68 (Cohn).) The standards set forth by this Court and the Legislature over the years have workedto strike that delicate balance between protecting children and guarding against unjustly depriving a parent ofhis or her interests in raising his or her child. B. Hearsay Evidence is Generally Inadmissible, Except Under Specific andLimited Exceptions To further elaborate and discuss the aboveline ofcases,it is first necessary to understand the nature of hearsay evidence. California Evidence Code section 1200 provides that (a) Hearsay evidence is 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. (b) Except as provided by law, hearsay evidence is inadmissible. (Cal. Evid. Code § 1200, subd. (a) and (b).) Hearsay evidenceis said to be “unreliable” because the statement might be distorted or misinterpreted by the witnessrelating it in court, the hearsay statement is not made under oath, the person who made the statement cannot be observed by the judge or jury to evaluate his/her credibility and the adverse party has not had the 33 opportunity to cross-examine the person who made them. (See Englebretsonv. Industrial Acc. Com. (1915) 170 C.793, 798.) Underourlegal system, hearsay evidencehastraditionally not been allowed to be admitted unless it falls into a class of statements previously found by case law orset by statute to be inherentlyreliable,i.e., excited utterance, dying declaration. (Cal. Evid. Code §§ 1240, 1242.) Overthe years, exceptions have been created by the Courts and the Legislature to allow hearsay evidence to be admitted in juvenile dependency proceedings with certain safeguards. (§ 355, subd. (b); see also MalindaS., supra, 5\ Cal.3d 368, 382-383, Lucero L., supra, 22 Cal.4th 1227.) In child sexual abuse cases, juvenile courts are often faced with problemsofproof due to the lack of physical evidence of sexualactivity, the nature ofthe contact, the lack of corroborating eyewitnesses, the reluctance of family members to testify, the victim’s retraction of the story, and the lack of credibility of some victims due to limited verbal and cognitive abilities. (in re Carmen O. (1994) 28 Cal.App.4th 908, 918-919.) (Carmen O.) Dueto these considerations, this Court determined that hearsay evidence should be allowedso as not to prevent the child’s story from being heard. (Cindy L., supra, 17 Cal.4th at p. 28.) Nevertheless,this Court in Cindy L., found that even if hearsay evidence is deemed necessary, an exception to the hearsay rule is not valid unless the class of hearsay evidence proposed for admissionis inherently reliable. (Cindy L., supra, 17 Cal.4th at p. 28.) C. A Hearsay Statement May Be Admitted Into Evidence But May Still Not Be Sufficient, By Itself, To Establish Jurisdiction “The admissibility and substantiality of hearsay evidence are different issues.” (Gregory v. State Bd. ofControl (1999) 73 Cal.App.4th 584, 597.)(Lucero L., supra, 22 Cal.4th 1244.) A hearsay statement may be 34 admitted into evidence butstill may not be sufficient, by itself, to establish jurisdiction. In the context of dependency proceedings,it has been established that the hearsay declaration of a child contained in a social study may be constitutionally admitted. (Malinda S., supra, 51 Cal.3d 368.) However, Malinda S. recognized the due process problemsinherent in relying too heavily on the hearsay statements of incompetent minors to make jurisdictional findings when there has been no opportunity for cross- examining the minor. As Lucero L. pointed out, Asthis court has long recognized, ‘[m]Jere uncorroborated hearsay or rumor does not constitute substantial evidence.’ There must be substantial evidence to support sucha ... ruling, and hearsay, unless specially permitted by statute, is not competent evidenceto that end. [Citations omitted.] Exceptin those instances recognized by statute where the reliability ofhearsay is established, hearsay evidencealone ‘is insufficient to satisfy the requirement of due processoflaw, and mere uncorroborated hearsay does not constitute substantial evidence. [Citations omitted.]’ (Lucero L., supra, 22 Cal.4th at 1244-1245.) Asseen in the majority’s analysis in .C., the important distinction between admissibility and substantiality of the hearsay is often forgotten, ignored, or side stepped by the court. (.C., supra, 239 Cal.App.4th 304.) A careful review ofthe hearsay statement admitted into evidenceis required before it can be deemed substantial evidence to support a jurisdictionalfinding. In cases such as this where evidence presented to the juvenile court consists of out-of-court statements made by a young child whois not available for cross-examination, maintaining the fairness of the dependency system requires that jurisdictional findings based on the young child’s 35 hearsay statements possesssufficient reliability to preserve a parent’s due processrights. The following exceptions to the hearsay rule were created to maintain that delicate balance. D. Over the Last Twenty-Five Years, the Courts and the Legislature Have Created Various Exceptionsto the Hearsay Rule to Allow Hearsay Evidence to Be Admitted in Juvenile Dependency Hearings I. Introduction From the 1990 Malinda S. decision to the 2000 Lucero L. opinion, this Court and the Legislature have carved out specific exceptionsto the generalrule excluding the out-of-court statements ofwitnesses in dependency proceedings out of concern that hearsay evidenceis often the only evidence available in child abuse and neglect cases. Asdiscussed in more detail below, in 1990, in MalindaS., this Court established a social study hearsay exception that allowed the hearsay statements contained in a social study report to be admissible andto be the basis for a jurisdictional finding as long as the preparer ofthe report, the Agencysocial worker, was available for cross-examination. (MalindaS., supra, 51 Cal.3d 368.) In 1994, the Fourth District Court of Appeal, Division One established a child dependency hearsay exception in Carmen O., supra, 28 Cal.App.4th 908, that allowed, under certain conditions, admissionofout- of-court statements by alleged child victims of sexual abuseat jurisdictional hearings. (/d.) In response to the Malinda S. decision, the Legislature amended section 355 of the Welfare and Institutions Code in 1996 to create a hearsay exception applicable to dependency proceedings for uncorroborated out-of- court statements of a child under 12 that are contained in a social study, 36 unless a party objecting to their admission establishes the statements were procured by fraud, deceit or undue influence. (§ 355, subds.(a), (c)(1)(B).) In 1997, in Cindy L., supra, 17 Cal.4th 15, this Court determined that the child dependency hearsay exception wasvalidly created but needed to be clarified and augmentedin orderto better safeguard the reliability of a child’s hearsay statements introduced in a dependency proceeding. (/d., at p. 28.) As aresult, to protect against the possibility of fabrication,this Court in Cindy L. required that the hearsay statement ofthe minor contain particularized indicia of reliability, and that there be either corroboration or the minor be available for cross-examination, to guard against the possibility of fabrication. (/d., at p. 34.) The decision in Cindy L. did not address the new amendments to section 355. Finally, in 2000, this Court in Lucero L., in light of the new hearsay exception in section 355, held that where a child cannottestify because of truth incompetence and her hearsay statements containedin a social study are uncorroborated, these statements are admissible, but may not be the sole support fora jurisdictional finding unless they and their surrounding circumstances so clearly demonstrate the child’s truthfulness that “the test of cross examination would be of marginalutility.” (Lucero L., supra, 22 Cal.4th at p. 1249.) These specific exceptions have created a “special body of law that grapples with the tension between our paramount concerns with a child’s welfare and a parent’s due process rights in dependency proceedings.” (.C, supra, 239 Cal.App.4th at p. 341 (dis.opn.).) a. Creation of the Social Study Hearsay Exception in Malinda S. In 1990, the Court in Malinda S., created a social study exception to the hearsay rule. The Malinda S. court concludedthat a social study fits within the class of ‘legally admissible’ evidence on which a court can rely 37 a in a jurisdiction hearing even though the social study is hearsay and contains multiple levels of hearsay. (Malinda S., supra, 51 Cal.3d atp. 384.) Social services agencies rely on social study reports prepared by social workers to present their cases in dependency courts. '? These reports generally consist of observations and statements derived from the alleged child victim, the victim’s relatives, and the accused. The social study reports are designedto facilitate a finding ofjurisdiction andare often the heart of an agency’s case against a parent. (Cohn, supra, 16 J.Juv.L.53 at pp. 54, 70.) The statements contained in the social study reports are hearsay, double hearsay, and often triple hearsay as the statements were made to the social workeror to a third party who conveyed the information to the social worker. (Cohn, supra, 16 J. Juv.L. at pp.54, 55.) It has been recognized that generally, “the majority of witnesses whose statements are contained in the social study will not help the parent’s case if called to testify.” (Seiser & Kumli on California Juvenile Court Practice and Procedure, (2015) §2.110[12][c].) The “impact of social study reports in these proceedings and the hearsay statements contained therein cannot be understated.” (Cohn, supra, 16 J. Juv.L. at p. 59.) Responding to the question ofwhether social study reports are “legally admissible in a civil case” within the meaning of section 355,"* in 13 Welfare and Institutions Code section 281 provides that “[t]he probation officer shall upon order of any court in any matter involving the custody, status, or welfare of a minor or minors, make an investigation of appropriate facts and circumstances and prepare andfile with the court written reports and written recommendations in reference to such matters. The court is authorized to receive and consider the reports and recommendations of the probation officer in determining any such matter. (§ 281.) '4 Section 355 provides, in part, (a) [a]t the jurisdictional hearing, the court shall first consider only the question whether the minoris a person 38 1990, this Court established the “social study exception”to the hearsay rule in Malinda S., supra, 51 Cal.3d 368. The Malinda S. court found that so long as each party receives a copy ofthe social study report, is given an opportunity to cross examine the preparerofthe report, is given the opportunity to subpoena and examine the persons whosestatements are contained the report, and is permitted to introduce evidence by way of rebuttal, no constitutional due process violation exists. (Malinda S., supra, 51 Cal.3d at p. 382-385.) The Malinda S. court stated that social study reports “are prepared by disinterested parties in the regular course of their professional duties” and thus possess the requisite “reliability and trustworthiness” to exempt them from the hearsayrule. (d., at pp. 377- 381.) The practical effect for parents is that, based on the MalindaS. hearsay exception, the social study report itself can provide an adequate basis for jurisdictional findings as long as the social workeris available for cross-examination. The burden then falls on the parent to present evidence to refute what is found in the social study report. (Cohn, supra, 16 J. Juv.L. at p. 70.) described by Section 300. Any legally admissible evidencethat is relevant to the circumstancesoracts that are alleged to bring the minor within the jurisdiction ofthe juvenile court is admissible and may bereceived in evidence. Proof by a preponderance of evidence must be adduced to support a finding that the minoris a person described by Section 300.... (b) A social study prepared by the petitioning agency, and hearsay evidence containedin it, is admissible and constitutes competent evidence upon which a finding ofjurisdiction pursuant to Section 300 may bebased,to the extent allowed by subdivisions (c) and (d). (§ 355, subds.(a) and (b).) 39 The special evidentiary rules for dependency hearings framed by this Court in Malinda S. continued to change and expand with the subsequent decisions in Carmen O., Cindy L., and Lucero. b. Creation of the “Child Dependency Hearsay Exception” in Carmen O. In 1994, the Fourth District Court of Appeal, Division One in Carmen O., supra, 28 Cal.App.4th 908, opened the doorto a child dependency hearsay exception. In the underlying trial court proceedings, a social study report was prepared containing the minor Carmen’s various statements to different family members regarding alleged sexual abuse by her father. (/d., at p. 912.) The social study report containing Carmen’s hearsay statements was received into evidence by the trial court and the trial court found Carmen incompetentto testify. The trial court found jurisdiction over Carmen and her brother and removedthe children from father’s care. (/bid.) Father appealed, contending that Carmen’s statements should not have been admissible because ofthe juvenile court finding of Carmen’s incompetence andthat it was error to admit Carmen’s hearsay statements through the testimonyofher sister, mother and grandmother. (d., at p. 911.) On appeal, the Fourth District, Division One, in upholding the juvenile court’s jurisdictional findings, stated that “this court believes the time has now come,andthis caseis ripe for, a recognition of what we will call a “child dependency hearsay exception.” (Carmen O., supra, 28 Cal.App.4th at p. 921.) The court qualified its ruling saying that this newly created rule encompassed only “out-of-court statement of very young children for the truth of the content of the statement, given the existence of factors which showreliability.” Ud., at p. 922.) The Carmen O. court found that Carmen’s hearsay statements “fit the general outlines of the test of reliability typically required for use of a 40 ‘residual’ hearsay application.” (Carmen O., supra, 28 Cal.App.4that p. 921.) The reliability factors discussed by the court were the “age and maturity of the child, the nature and duration ofthe abuse, the relationship of the child to the offender, the reliability of the assertion, and the reliability ofthe child witness.” (Carmen O., supra, 28 Cal.App.4thatp. 919.) The creation of the child dependency hearsay exception now madeit easier to introduce the out-of-court statements ofvery young children for the truth of the content of the statement, given the existence of various factors of reliability. (Carmen O., supra, 28 Cal.App.4th at p. 922.) c. Cindy L. Upheld the Child Dependency Hearsay Exception and Added the Requirement That a Child’s Hearsay Statements Must Possess Indicia of Reliability Plus Corroboration Before Being Admitted at a Jurisdictional Hearing This Court first addressed the child dependency hearsay exception created by Carmen O. in Cindy L. This Court in Cindy L. “more fully developed [the exception] to provide specific due process protections for parents in child dependency hearings.” (Cindy L., supra, 17 Cal.4th at p. 18.) In 1997, the Cindy L. Court was called upon to determine whether the “child dependency hearsay exception” was applicable when the court determines that a child is not competent to testify because he or she is unable to understand the duty to tell the truth or does not possess the ability to distinguish betweentruth andfalsity. (Cindy L., supra, 17 Cal.4th atp. 18.) During naptimeat her preschool the four-year-old minor, Cindy, touched her vagina undermeath her underwear. The preschoolteachertold Cindy to stop, to which Cindy replied “well my father always touches me 41 right there.” (Cindy L., supra, 17 Cal.4th at p. 19.) Cindy was interviewed by various individuals over several different days and repeated the same allegations. (/d., at p. 20.) Additionally, there was evidence from the doctor who examined the minorfinding that he did not “visualize a hymen” which wasconsistent with the reported history of sexual abuse. (/d., at p. 35.) Thetrial court applied the child dependency exception enumerated in Carmen O.to find Carmen’s statements admissible and to sustain the petition. The Court of Appeal affirmed, concludingthat the juvenile court had not erred in applying the child dependency exception. (/d., at p. 21.) On appeal to this Court, the first issue to be addressed was whether the child dependency exception introduced in Carmen O. wasvalidly created. (Cindy L., supra, 17 Cal.4th at pp. 18, 21.) This Court noted that given therealities of child dependency proceedingsandthe fact that some children will be too young or too intimidated to testify, that the categorical exclusion of child hearsay, or admission only if the hearsay fits within traditional yet narrow categories such as the ‘spontaneous utterance’ exception will often mean the exclusion of significant, reliable evidence required for the juvenile court to assert its jurisdiction over the child and to ultimately protect him or her from an abusive family relationship. (Ud., at p. 28.) As aresult, this Court found that the creation of a child dependency exception in sexual abuse cases was well-foundedbut, “that the exception should be more fully developed to provide specific due process protections of parents in child dependency hearings.” (Cindy L., supra, 17 Cal.4th at p. 18.) To that end, this Court in Cindy L. set forth three conditions for admitting the out-of-court statements ofchildren in jurisdictional hearings. First, the court must find that the time, content and circumstancesofthe statement provide sufficient indicia of reliability. Second, a child must either be available for cross-examination or there must be evidence of child 42 sexual abuse that corroborates the statement made by the child. Third, other interested parties must have adequate notice of the public agency’s intention to introduce the hearsay statementso as to contestit. (/d., at p. 29.) This Court in Cindy L. provided a non-exhaustivelist of factors that the United States Supreme Court had cited in Idaho v. Wright, supra, 497 U.S. 805, 821-822, as relevant to the reliability of hearsay statements made by child witnesses in sexual abuse cases. Thelist included (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate. (Cindy L., supra, 17 Cal.4th at pp. 29-30.) Noting that, despite efforts to solidify the various indicia ofreliability, the indicia had been described as “sufficiently ambiguousas to be ‘easily manipulable,’”this Court in Cindy L. required corroboration if the hearsay declarantis unavailable for cross-examination. (/d. at p. 30, quoting, Should We Believe the People Who Believe the Children? The Needfor A New Sexual Abuse Tender Years Hearsay Exception Statute (Winter 1995) 32 Harv. J. on Legis. 207, 238-239.) This Court in Cindy L. recognized that allowing the child dependency hearsay exception also required some due process protections for parents. Accordingly, this Court in Cindy L. found that independent corroboration!’ was an “additional safeguard against the possibility of 15 California Evidence Code section 1370, in part, provides that the circumstances that would indicate the trustworthiness of a hearsay statement include (b)(3) [w]hether the statement is corroborated by evidence other than statements that are admissible only pursuantto this section. (Cal. Evid. Code § 1370, subd. (b)(3).) Corroborative evidence was defined as “evidence . . . which would support a logical and reasonable inference’ that the act of abuse described in the hearsay statement occurred.” (Cindy L., supra, 17 Cal.4th at p. 35.) Corroborating evidenceis 43 fabrication by very young witnesses whose out-of-court statements are insulated from the rigors of cross-examination.” (Cindy L., supra, 17 Cal.4th at p. 34.) d. The Legislature Responds to Due Process Concerns Raised by the Rulings in Malinda S. by Amending Section 355 to Provide That Hearsay Evidence by Itself Is Not Sufficient To Establish Jurisdiction Subject to Various Exceptions In response to the due process concernsraised by the ruling in Malinda S., Senate Bill 86 was introduced to the Legislature in 1995 and adopted as amended in 1996. Senate Bill 86 added language to section 355 which would havethe effect of at least partially overruling this Court’s decision in Malinda S. Senate Bill 86 attempted to address the procedural due problemsofthe social study exception by giving parents a more meaningful opportunity to refute child abuse allegations by either requiring the hearsay declarant to be available for cross examination or requiring other admissible supporting evidence to be adducedin order for the court to makea jurisdictional finding. (Cohn, supra, 16 J. Juv.L. 53 at p. 72.; Seiser, supra, § 2.110[12][b].) The goal of Senate Bill 86 was that “parties to dependency actions would be afforded the same procedural and due process protections that are required in other legal actions whichaffect the individualrights of citizens.” (Legis., Analyst, Enrolled Bill Rep., Sen. Bill No. 86 (12995-1996 Reg. Sess.) May 9, 1995,p. 5.) defined as “Evidencethat differs from but strengthens or confirms what other evidence shows(esp. that which needs support).” (Black’s Law Dictionary (10th ed. 2014).) 44 The amendments to Section 355 were the result of lengthy legislative consideration and compromise. The Enrolled Bill Report recommending the Governorsign the bill that became section 355 aptly describes the bill as, a measured response to the problem ofhearsay testimony in Section 300 jurisdictional hearings. On the one hand, juvenile court proceedings, particularly in abuse and neglect cases, are supposed to be informaland to place the bestinterests ofthe child ahead of inflexible andritualistic adherence to ordinary, adversarial trial court procedures. On the other hand, there is widespreadbelief that hearsay evidenceis unreliable and excessive court reliance on the multiple hearsay statements contained in social study reports can lead to injustices. This bill takes a middle road, preserving informality and allowing social studies to serve as the basis to declare a child a ward of the court while placing reasonable limitations on the use of hearsay evidence whenthere are reasons to doubt the reliability of the statements in the social study. (Legis. Analyst, Enrolled Bill Rep., Sen. Bill No. 86 (1995-1996 Reg.Sess.) Apr. 25, 1996, p. 1.) Senate Bill 86 was amended several times and ultimately adopted by the Legislature in its present form. The changes brought to section 355 by Senate Bill 86 affected those cases in which a party to the proceedings raises a timely objection to the admission of specific evidence whichis contained in a social study. In such cases, the specific hearsay evidence “shall not be sufficient by itself to support a jurisdictional findings unless the social services agencies establishes that at least one enumerated exception applied.” (§ 355, subd. (c)(1).) The exceptions includedthat “the person who madethe hearsay statementis a child underthe age of 12 who is the subject ofthe jurisdictional hearing. Such statements are inadmissible, however, if the party objecting establishes that the child’s statement is unreliable because it was the product of fraud, deceit or undue influence.” (§ 355, subd. (c)(1)(B).) 45 Senate Bill 86 amended the language in section 355 to partially codify and partially modify this Court’s decision in Malinda S. Section 355, subdivision (c) made “clear that only certain types of hearsay are sufficient to support a jurisdictional finding.” (Lucero L., supra, 22 Cal.4th at p. 1242.) e. This Court in Lucero L. Further Refined the Use of Hearsay Statements of a Truth Incompetent Non-Testifying Witness as the Sole Basis for Establishing Jurisdiction by Removing Cindy L.’s Corroboration Requirement But Required That the Time, Content and Circumstancesof the Hearsay Statement Provide Sufficient Indicia of Reliability Such That the Test of Cross Examination Would Be of Marginal Utility i. Introduction In 2000, this Court in Lucero L. further refined what was required before a court could baseajurisdictional finding solely on the hearsay statement ofa truth incompetent non-testifying witness.'® In Lucero L. this Court was asked to consider whether “the hearsay statements contained in a social study of a minor whois the subject of a section 300 hearing, and who is deemed to be incompetentas a witness because of an inability at the time oftestimony to understand the obligation to tell the truth and/or distinguish between truth and falsehood may be admitted and relied on under section ‘6 “Truth incompetenceor the inability to express oneself so as to be understood are bases for excluding witness testimony. Pursuant to Evidence Code section 701, a person is disqualified from testifying if it is shownby a preponderanceofthe evidence that the witness is “(1) [iJncapable of expressing himself or herself concerning the matter so as to be understood . . . or (2) [iJncapable of understanding the duty of a witness to tell the truth.” (.C., supra, 239 Cal.App.4th at p. 341, fn. 5 (dis. opn.); see also Cindy L., supra, 17 Cal.4th at p. 31-32.) 46 355 if such statements fail to measure up to the standard ofreliability prescribed in Cindy L.” (Lucero L, supra, 22 Cal.4th 1227 at p. 1231.) After reviewing the child dependency exception and due process concerns involving the use of hearsay, this Court held that “except in those instances recognized by statute wherethe reliability of hearsay is established, hearsay evidence aloneis insufficient to satisfy the requirement of due process of law, and mere uncorroborated hearsay does not constitute substantial evidence.” (Lucero L., supra, 22 Cal. 4th at pp. 1244-1245.) This Court in Lucero L. held that due process imposes an additional requirement for cases where the child cannot qualify to testify or differentiate between truth and falsehood and the statements are the exclusive evidence. (/d., at pp. 1247-1248.) This Court concluded that “the out-of-court statements of a child whois subject to a jurisdictional hearing and whois disqualified as a witness because ofthe lack of capacity to distinguish between truth and falsehoodatthe time oftestifying may not be relied on exclusively unless the court finds that the ‘time, content and circumstances’ ofthe statement provide sufficient indicia ofreliability.” (d., at pp. 1247-1248.) It was essential that sufficient indicia of reliability exist to ensure that the child’s “truthfulness is so clear from the surrounding circumstancesthat the test of cross-examination would be ofmarginal utility.” Ud., at p. 1249.) Without such indicia of reliability and without such assurance of clear truthfulness, relying on hearsay evidence would not meet constitutional due process requirements. ii. Cross-examination hashistorically been the critical means by which a witness’s credibility is assessed This Court in Lucero L. was cognizant ofthe due process problems created by the use of a very young truth incompetent child’s hearsay 47 statements to establish jurisdiction as the “use of such evidence against a parent denies the parent — and the court — critical means by which historically we assess a witness’s credibility: cross-examination.” (/.C., supra, 239 Cal.App.4th at p. 341 (dis. opn.); Lucero L., supra, 22 Cal.4th 1227.) Cross—examination is central to the American legal system. It has been described as the “greatest legal engine ever invented for the discovery ofthe truth.” (California v. Green (1970) 399 U.S. 149, 158.) “Cross- examination is the principal means by whichthe believability of a witness andthe truth of his testimony are tested, [allowing the cross-examiner] . . to delve into the witness’ story to test the witness’ perceptions and memory . .. [and] to impeach,i.e., discredit, the witness.” (Davis v. Alaska (1974) 415 US. 308, 316.) “The basic theory is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, whichlie undemeath the bare untested assertion of a witness, may be best brought to light and exposedbythe test of cross-examination.” (Buchananv. Nye (1954) 128 Cal.App.2d 582, 585.) As a result, this Court in Lucero L. created a safeguard to ensure the trustworthiness of a minor’s hearsay statement when the minor wasnot available for cross-examination. iii. When a minoris not availablefor cross- examination, Lucero L.held that due process requires that ‘time, content and circumstances’ ofthe statementprovide sufficient indicia ofreliability to “ensure that the child’s “truthfulness is so clear from the surrounding circumstances that the test ofcross-examination would be of marginalutility.” This Court in Lucero L. recognized that because cross-examination is so crucial to the due process protections enforced by the Fourteenth 48 Amendment and Article | of the California Constitution, if cross- examination is removed from the equation, there must be some dependable way to ensurethereliability and truthfulness of the out-of-court statements of a non-testifying truth incompetent young child that form the basis for a jurisdictional finding. This Court in Lucero L. applied the four-part test under California and federal law used to determine what process is due when the governmentdeprives a personoflife, liberty or property.!’ Theflexible balancing standard considers: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used and the probablevalue, if any of additional or substitute procedural safeguards; 3) the dignity interest in informing individuals ofthe nature, grounds and consequencesofthe action and in enabling them to present their side ofthe story before a responsible governmentalofficial; and 4) the Government’s interests, including the function involved andthe fiscal and administrative burdensthat the additional or substitute procedural requirements would entail. (Lucero L,, supra, 22 Cal.4th at p. 335.) Applying thesefactors here, this Court in LuceroL.stated that the private interest at stake wasthe parent’s importantliberty interest in maintain custody of his child as enumerated in Santosky v. Kramer, supra, 455 U.S. 745. Secondly, the risk of erroneous deprivation wasgreat because those opposing the governmentin a section 300 hearing are critically deprived of the right to cross examination. Thisrisk is further increased whenthe hearsay declarantis legally incompetentto testify due to inability to distinguish between truth and falsehood, which not only makes 17 The test was discussed by the United States Supreme Court in Matthews v. Eldridge (1976) 424 USS. 319. 49 the declarant unavailable for cross examination but detracts from his/her reliability. Finally, the vital governmental interests in preventing child abuse and the interest in producing an accurate and just resolution of dependency proceedingsare at stake. (Lucero L., supra, 22 Cal.4th at pp. 1247-1248.) Although section 355 created a statutory exception to the hearsay rule for minor under age 12, the court thoughtit “not apparent ... why sole reliance on such hearsay statements would notraise the same due process problemsas with other hearsay.” (Lucero L., supra, 22 Cal.4th at p. 1245.) Nordid the court believe that, due process is necessarily protected by placing the burden on those opposing the government to prove that the minor’s statements were ‘the product of fraud, deceit, or undue influence’, as section 355, subdivision (c)(1)(B) provides, in order to keep the statements from being admitted. This court recognized that the burden ofproving ‘fraud, deceit, or undue influence’ while not easily borne under any circumstance,is especially difficult when the witness whois generally most critical to proving such a case is unavailable for cross- examination. ([bid.) Inclusion of hearsay statements in a social study does not cure the due process problemsinherent in solely relying on the out-of-court statements of a minor unavailable for cross-examination. (/bid.) 50 iv. The Lucero L. Plurality and the Concurring Opinions recognized that simply because a hearsay statement might be admitted into evidence did not infuse that statementby itselfwith the necessary trustworthiness andreliability to be the sole basisfor ajurisdictional finding The LuceroL. plurality and the concurring opinions recognized the difference between evidence that might be admitted at a hearing versus evidence that will be relied upon as the basis ofa jurisdictional finding. The manyplurality opinions in Lucero L. differed in emphasis on whether the hearsay statements were admissible under the previously established child hearsay exception created in Carmen O. and as accepted in Cindy L., or under the newly enacted section 355(c)(1)(B)statute. However, when addressing whether the hearsay statements of a truth incompetent minor could constitute competent evidence,the plurality in Lucero was unanimousthatthe “indicia ofreliability” was a critical due process safeguard for determiningthe truthfulness andreliability of an otherwise truth incompetent child who could not be tested by cross examination. (Lucero L., supra, 22 Cal.4th 1227 (plurality opinion Mosk J., joined by George, J and Werdegar, J.) at pp. 1246-128; (concurred by Chin, J. and joined by Baxter, J.) at p. 1252; (concurred by Kennard, J., and’ joined by Brown,J.) at p. 1252.) In his concurring opinion, Justice Kennard indicated that the hearsay statement of a truth incompetentnot-testifying minor cannotbe the sole basis for a jurisdictional finding unless they show special indicia of reliability. (Lucero L, supra, 22 Cal.4th 1227, 1250-1251 (conc. opn. of Kennard, J.).) Justice Kennard pointed out that because there was “sionificant other evidence” produced by the County in thatcase, it was 51 unnecessary to determine if Lucero’s hearsay statement possessed sufficient indicia ofreliability. (/d., at p. 1252 (conc.opn. of Kennard, J.).) Justice Chin, concurring, agreed that the child’s “hearsay statements in the social study were admissible and that unreliable and uncorroborated hearsay, alone, would be insufficient to sustain a jurisdictional finding.” (Lucero L., supra, 22 Cal.4th at 1252 (conc. opn. of Chin, J.).) Justice Chin stated, “The plurality is-also correct that holding the evidence admissible does not mean that it will always support a jurisdictional finding. I do not doubt that evidence, whether hearsayor not, that is unreliable and uncorroborated cannot satisfy the preponderance-of-the-evidence standard. It might also violate due process to base a finding on unreliable and uncorroborated evidence.” (/d., at p. 1253 (conc. opn. of Chin, J.).) This Court in Lucero L. recognized that although Malinda S. allowed admission ofreported hearsay statements in social study reports, those reported statements did not necessarily possess any particular guaranties of reliability because they were includedin the social study report. (LuceroL., supra, 22 Cal.4th at p. 1240.) The plurality in Lucero L. sought to address the problem ofsole reliance on hearsay statements of a truth incompetent non-testifying young child. The Court in Lucero L. required that there be the necessary indicia of reliability that provided a substitute for corroboration and cross examination which are the usual “safeguards against the possibility that the child is merely fabricating the statements.” Ud., at p. 1246.) v. Conclusion This Court in Lucero L. wasclear in its goal to preserve the due process rights of parents while protecting the most vulnerable members of society. Requiring that the time, content and circumstanceofthe hearsay statementprovide sufficient indicia ofreliability sought to assuage those concerns. Theindicia ofreliability are meant to ensure that the child’s 52 “truthfulness is so clear from the surrounding circumstancesthat the test of cross-examination would be ofmarginalutility.” (Lucero L, supra, 22 Cal.4th at p. 1249.) Withoutthe ability to cross-examine a witness, which has been the bedrock of our legal system, safeguards must be in place and consistently and correctly applied to ensure that a parent’s due processrights are maintained. The juvenile court’s failure to apply the Lucero L. mandate resulted in a miscarriage ofjustice for a family. The Court of Appeal’s published affirmanceofthat miscarriage ofjustice by applying whatit itself recognized as a “novel application” ofLucero L. expanded the impact of this mistake. f. In 1.C., The Juvenile Court Failed to Apply the Lucero L. Test of Clear Truthfulness to the Hearsay Statements of the Minor, Resulting in A Jurisdictional Finding Based Solely on the Unreliable, Confused Statements of a Three-Year-Old Non- Testifying Truth Incompetent Minor The Lucero L. mandate requiring particularized indicia ofreliability establishing the clear truthfulness of the minor was putto the test in LC., supra, 239 Cal.App.4th 304. The juvenile court specifically found many of I.C.’s hearsay statements to be confusing and unclear. Nevertheless, the juvenile court relied solely on these unreliable hearsay of a truth incompetent!® non-testifying minor to makeits jurisdictional findings. (3/27/13 RT 2-3, 6.) In doing so, the juvenile court ignored this Court’s holding in Lucero L. 8 As pointed out by Justice Stewart in her dissent, there was “nothing in the record indicting that the juvenile court expressly found I.C.to be truth incompetent. Nonetheless,its citation to Lucero L. indicates that it found this to be true.” (.C., supra, 239 Cal.App.4th at p. 348, fn. 14 (dis.opn.).) 53 All ofthe other evidence presented to the court did not support the allegation of sexual abuse by father, in fact just the opposite. The police search of the homedid not find any signs of bodily fluids, including semen, on the children’s beds, the bed linens, or in the laundry hamper. (1CT 99, 103.) Father was cooperative with the police and agreedto the police searching his car, which did not contain any illegal items or contraband. (1CT 97.) A medical examination ofI.C. did not indicate any signs of trauma. (1CT 105.) There was noprior child welfare history involving the family. The adult sibling and babysitter both testified that father had never behaved inappropriately with them, they had never seen him behave inappropriately with I.C., and I.C. had never told them that father behaved inappropriately. (1CT 97; 3/14/13 RT 10.) L-C.’s statements on September 11, 2012, were strikingly similar to her description of the documented molestation she had recently suffered at the hands of the eight-year-old neighbor only two monthsprior. (1CT 87-88; 9/12/12 Aug RT 10.) To date, the published cases that have applied LuceroL.in the context of the hearsay statements of a non-testifying, truth incompetent minor have found corroborating evidence to bolster the hearsay statements. In fact, corroborating evidence was even discussed by this Court in Lucero L. to strengthen thereliability ofthe minor Lucero’s hearsay statement as noted in its reliance on an older sibling’s statement that father had showered with her and engagedin inappropriate sexualized behavior with the sibling. (Lucero L., supra, 22 Cal.4th at p. 1250.) In Jn re April C. (2005) 131 Cal.App.4th 599, the Second District Court of Appeal affirmed the juvenile court’s findings based on the minor’s hearsay statements regarding the alleged abuse andthe corroborating evidence that the minor had a healing anal tear. (/d., at p. 612.) In B.D., supra, 156 Cal.App.4th 975, the Third District Court ofAppeal foundthatthetrial court erred in dismissing the petition because even though the hearsay statements of the 54 witness were not to be admitted pursuant to section 355, there was corroborating evidence through mother’s admission ofthe physical abuse suffered by the child. (/d., at p. 978.) The presence of corroborating evidence, in effect, has in other cases limited the urgency for the juvenile courts of ensuring the clear truthfulness or reliability of the out-of-court statements of a non-testifying, truth incompetent minor. In this case, the majority attempted to find “some corroboration” in the minor’s alleged fear of being left alone with father. (.C., supra, 239 Cal.App.4th at p. 323, fn.8.) However, as pointed out in the dissent and set forth in the record, mother expressly testified that I.C. was notafraid of father. (C., supra, 239 Cal.App.4th at p. 329, fn.2 (dis. opn.); 1/14/13 RT 24, 36.) Furthermore, as the dissent noted, the “portion of mother’s testimony that the majority relied upon ultimately rests ofwhat I.C. told mother about father’s abuse. The majority does not explain how a truth incompetent hearsay declarant can corroborate her own statements.” (.C., supra, 239 Cal.App.4th at p. 329, fn.2 (dis. opn.).) Here, the only evidence to support the allegations ofthe section 300 petition were the hearsay statements of a non-testifying, truth incompetent three-year-old. The juvenile court recognized that “essentially, all the court has to go on in this case is the hearsay statement of a three-year old minor.” (3/27/13 RT 3.) L.C.’s hearsay statements were contained within various social study reports, as well as within the CALICO videotape, which was admitted into evidence. Prior to rendering its decision the juvenile court acknowledged“this is a very difficult case because the evidence comes from a three-year old child who,at times, was very clear in her statement about what happened, and at other time was very unclear, and at times very confusing about the statements that she makes concerning whatshe alleged her father did to her.” (3/27/13 RT 2-3.) After citing Cindy L., supra, 17 Cal.4th 15, and Lucero L., supra, 22 Cal.4th 1227, the court discussed 55 evidencethat it thought suggested I.C.’s statements were both reliable and unreliable, but found that “the evidence that supports reliability [is] more compelling.” (3/27/13 RT 6.) Accordingly, the court sustained the allegations and found the (d-1) and (d-3) allegations of the petition to be true by a preponderanceofthe evidence. (3/27/13 RT 7-8, 17.) Contrary to the Lucero L. mandate, the juvenile court did not determine whetherthe truthfulness of I.C. as a hearsay declarant was “so clear from the surrounding circumstancesthat the test of cross-examination would be of marginalutility.” Instead, the juvenile court stated that this was a “very difficult case” with “supporting evidence on both sides.” (3/27/13 RT 6.) Asthe dissent pointed out in /.C., the juvenile court’s finding that significant evidence pointed to the unreliability of I.C.’s statements should have resulted in the majority reversing the jurisdictional findings. (LC., supra, 239 Cal.App.4th at p. 347 (dis. opn.).) The juvenile court’s weighing ofthe evidence was essentially a determination that I.C.’s hearsay statements werereliable by a preponderanceofthe evidence, a “broad andrelatively lenient” standard of proof. (I.C., supra, 239 Cal.App.4that p. 345 (dis. opn.).) The Court in Lucero L., however, makesclear that more is required before the juvenile court may base jurisdictional findings solely on uncorroborated hearsay statements by a young,truth incompetent non-testifying minor suchas I.C. Whenfaced with that circumstance,a trial court must find from the statements made and from the surrounding circumstances that the minor’s truthfulness is so clear that cross-examination would beoflittle use. (Lucero L., supra, 22 Cal.4th at p. 1249.) The juvenile court acknowledged that significant aspects of I.C.’s hearsay statements about father were the product of confusion, projections and/or imagination and were therefore unreliable. (3/27/13 RT 2-6.) In fact, the juvenile court’s findings demonstrated that no reasonable fact 56 finder could concludethat I.C.’s truthfulness was clear, as required by this Court in Lucero L. Accordingly, I-C.’s very confusing and very unclear out-of-court statements do not withstand the required scrutiny ofLucero L. when those statements were the sole evidence upon whichto base jurisdiction and do not pass constitutional muster. In this case, the only evidence to support the section 300, subdivision (d) jurisdictional allegation were the hearsay statements of I.C. There was no medical evidence, no forensic evidence, no statements of other family members, no allegations of similar acts committed by father on other children. There was nothing but one 24-hour period with hearsay statements from the I.C. that were confused, verifiably untrue, and similar to the molestation she had suffered at the handsof an eight-year-old neighbor only a few monthsbefore the allegations were made against father, and only a few daysafter that same boy abruptly and disruptively re- entered the family’s life. In such a case, this Court in Lucero L. was clear that there must be corroborating evidence or the court mustfind that the time, content and circumstances of the statement provide sufficient indicia of reliability before those hearsay statements can be the sole evidence to support a jurisdictional finding. (Lucero L., supra, 22 Cal.4th at p. 1246.) Underno circumstances could a court determine, as Lucero L. requires, the truthfulness of I.C.’s allegations of sexual abuse. The juvenile court erred in sustaining the jurisdictional allegations of the section 300 petition. Its findings, as well as the subsequent dispositional orders based on those erroneousjurisdictional findings, must be reversed. This Court and the Legislature have made additions and changes to the law over the years in an effort to ensure the safety of children who have been abused while also ensuring parents are afforded due process protections. With the frequent introduction of hearsay statements in dependency proceedings, it is imperative that the due process rights of 57 parents are protected. A course correction is necessary now to ensure adherence to the requirements ofLucero L. when hearsay statements of a truth incompetent non-testifying child are the sole basis for a finding of jurisdiction under section 300. Ii THE COURT OF APPEAL ERRED WHENIT AFFIRMED THE TRIAL COURT’S JURISDICTIONAL FINDING WITHOUT REVIEWING THE ENTIRE RECORD FOR SUBSTANTIAL EVIDENCE OF THE MINOR’S CLEAR TRUTHFULNESS A. When the Hearsay Statements ofa Truth Incompetent, Non-Testifying Minor Arethe Sole Basisfor Jurisdiction, a Court ofAppeal’s Failure to Review the Entire Record For Substantial Evidence ofthe Minor’s Clear Truthfulness As Required Under the Mandate ofLucero L. Results in a Violation ofa Parent’s Due Process Protections Jurisdictional findings are reviewed for substantial evidence. (Jn re James R. (2009) 176 Cal.App.4th 129, 134-135.) The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible and of solid value.” (Jn re JK. (2009) 174 Cal.App.4th 1426, 1433.) Although substantial evidence mayconsist of inferences, such inferences must be ‘a product of logic and reason’ and ‘mustrest on evidence’ [citation]; inferences that are the result ofmere speculation or conjecture cannot supportafinding [citations].” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394, italics in original.) Asexplained in People v. Johnson (1980) 26 Cal.3d 557, the reviewing court does not limit its review to the evidence favorable to the respondent. (/d. at p. 577.) The Court described its “‘task as twofold: First, we mustresolve the issue in the light of the whole record . . . and may not 58 limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each ofthe essential elements . . . is substantial; it is not enough for the respondent simply to point to ‘some’ evidence supporting a finding, for ‘not every surface conflict of evidence remains substantial in the light of other facts.’” Ubid., citing People v. Bassett (1968) 69 Cal.2d 122, 138, fn. and emphasis omitted.) A formulation ofthe substantial evidence rule which stresses the importanceofisolated evidence supporting the judgmentrisks misleading the court into abdicating its duty to appraise the whole record. As Chief Justice Traynor explained, the ‘seemingly sensible’ substantial evidence rule may be distorted in this fashion, to take ‘some strange twists.’ Occasionally an appellate court affirmsthe trier of fact on isolated evidence torn from the context ofthe whole record. Such a court leaps from an acceptable premise, that a trier of fact could reasonably believe the isolated evidence, to the dubious conclusion that the trier of fact reasonably rejected everything that controverted the isolated evidence. Had the appellate court examined the whole record, it might have found that a reasonabletrier of fact could not have madethe finding in issue. One ofthe very purposesofreview is to uncover suchirrational findings and thus preclude the risk of affirming a finding that should be disaffirmed as a matter of law. (Traynor, The Riddle ofHarmless Error (1970) p. 27 (footnotes omitted.).) Where the hearsay statements of a child who cannotqualify to testify or differentiate between truth and falsehood is the sole evidence to establish jurisdiction, this Court in Lucero L. provided a roadmap that must be carefully adhered to by the reviewing courts. Lucero L., and its predecessor Cindy L., specifically created a “special body of law that grapples with the tension between our paramount concerns with a child’s welfare and a 59 parent’s due process rights in dependency proceedings.” (.C., supra, 239 Cal.App.4th at p. 341.) In assessing the sufficiency of such hearsay evidence to establish jurisdiction, the reviewing courts are to be guided “not only by the general standards governing substantial evidence review, but also by the specific mandate set forth” by this Court in Lucero L. (IC., supra, 239 Cal.App.4th at p. 341(dis. opn.).) This Court in Lucero L. explained that “the out-of-court statements of a child who is subject to a jurisdictional hearing and whois disqualified as a witness becauseofthe lack of capacity to distinguish between truth and falsehood at the time oftestifying may not be relied on exclusively unless the court finds that the ‘time, content and circumstances’ of the statement provide sufficient indicia of reliability.” (Lucero L., supra, 22 Cal.4th at pp. 1247-1248.) Sufficient indicia of reliability must exist to ensure that the child’s “truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.” (/d., at p. 1249.) This Court in Lucero L. stated that “except in those instances recognized by statute wherethereliability ofhearsay is established, hearsay evidence aloneis insufficient to satisfy the requirement of due process of law, and mere uncorroborated hearsay does not constitute substantial evidence.” (Lucero L., supra, 22 Cal. 4th at pp. 1244-1245.) Lucero L. held that due process imposesan additional requirement for cases where the child cannot qualify to testify or differentiate between truth and falsehood and the statements are the exclusive evidence.(/d., at pp. 1247-1248.) Despite Lucero L.’s clear mandate to assess the whole record for substantial evidence ofa child’s clear truthfulness, the majority in 1.C. “precipitously acquiescedin trial court’s determination of a hearsay declarant’s credibility without further review.” (.C., supra, 239 Cal.App.4th at p. 346 (dis.opn.).) Evidencing its misinterpretation of Lucero L., the LC. majority incorrectly stated, “[t]he issue here is not 60 whetherwe think I.C.’s statements bear sufficient indicia of reliability to satisfy Lucero, but whether substantial evidence supports the juvenile court’s finding that they did.” (/d., at p. 324.) Instead, in explaining its role on review, the majority stated “our limited powers do not extend to credibility determination or reweighing the evidence.” (/d., at p. 322.) The dissent correctly recognized that Lucero L. made clear that more is required before a court may base jurisdictional findings solely on the uncorroborated hearsay statements of a young truth incompetent non- testifying minor to protect a parent’s federal and state constitutional due processrights. The court must find from the statements made and the surrounding circumstances that the minor’s truthfulnessis so clear that cross-examination would be oflittle use. The majority’s view that the juvenile court’s determination of credibility was “conclusive” had “no legal basis under the circumstancesofthis case.” (.C., supra, 239 Cal.App.4th at pp. 346-347 (dis. opn.).) As a result, the majority reflexively deferred to the juvenile court’s ruling without examining whetherI.C.’s statements bore the necessary indicia ofreliability to establish her clear truthfulness as required by this Court in Lucero L. U.C., supra, 239 Cal.App.4th at p. 328 (dis. opn.).) The majority affirmed the juvenile court’s findings even as it acknowledged that there was “no direct or tangible proof that any molestation occurred.” (.C., supra, 239 Cal.App.4th at p. 316.) Consequently, the majority’s conclusion wasneither a review nor an analysis of the presence of substantial evidence of I.C.’s clear truthfulness and whetherthe reliability of her statements was established in the juvenile court. In taking this approach, the majority effectively relinquished its oversight role in the process and became a “rubberstamp”ofthe juvenile court’s findings. As Justice Stewart pointed out in her dissent, even if the “juvenile court thoughtfully evaluated the evidence, our duty nonetheless is to 61 determineifthere is substantial evidence that I.C.’s truthfulness was ‘so clear from the surrounding circumstancesthat the test of cross-examination would be of marginal utility’.” (C., supra, 239 Cal.App.4th at p. 347 (dis. opn.).) Indeed the majority approach “flies in the face of extensive concerns regarding a fact finder’s reliance on hearsay statements.” (/d., at p. 346 (dis.opn.).) The majority gave ‘conclusive effect’ to the juvenile court’s equivocal view ofI.C.’s credibility, as if this were a routine affirmance of a trial court’s determination that a truth competent testifying witness who wassubject to cross-examination was credible.” (.C., supra, 239 Cal.App.4th at p. 330 (dis.opn.).) The majority’s belief that it could not independently assess the juvenile court’s views regarding the credibility of I.C. was based on the mistaken belief that I.C. was somehowa testifying witness. She was not. She was incompetentto testify because she was incapable of separating fact from fiction. Her unchallenged out-of-court statements were the only evidence of father’s alleged sexual abuse. The dissent noted that in deferring to the juvenile court’s “modest conclusion,” the majority “abdicates this court’s responsibility under Lucero L. to review the whole record for substantial evidence of I.C.’s clear truthfulness.” (/d., at p. 329 (dis. opn.).) I.C. made “fantastical, confused, or inconsistent statements” over a one day period. (/d., at p. 349 (dis.opn.).) Her accusations were not made over monthsandthere was no other credible evidence to support her accusations. Her statements were simply not reliable and on their own could not be the basis for jurisdiction. The majority’s reflexive affirmance of the juvenile court’s erroneous decision in disregard of the Lucero L. mandate constitutes a “grave injustice” that contravenes our fundamentalprinciples of due process and that forever marked a family with the stigma of a factually unsupported 62 finding that its father sexually abused his young daughter. (.C., supra, 239 Cal.App.4th at p. 331 (dis. opn.).) The majority’s published decision in /.C. must be corrected. Left in place, the published decision in J.C. will cause more confusion and more ambiguity in the application of the hearsay laws in dependency courts. Under the Court of Appeal’s approach, a reviewing court will only need to ensure that the juvenile court “scrupulously” evaluated the pros and cons of the hearsay evidence. (.C., supra, 239 Cal.App.4th at p. 325.) Due process requires much more. Under LuceroL., this Court held that a reviewing court must determine whether there is substantial evidence that the minor’s truthfulness wasso clear that the test of cross-examination would be of marginal utility. The reliability ofthe hearsay statements and the clear truthfulness ofthe minorare the protectors that allow the juvenile court to safely rely on the out-of-court statements of a truth incompetent non-testifying minor to establish jurisdiction while honoring a parent’s due processprotections. B. Introduction ofa Videotape Recording ofthe Minor’s Hearsay Statements ThatAre Identical to Those Included In a Social Study Report Does Not Transform the Videotape Recording into Cross- Examination ofthe Non-Testifying Witness andDoes Not By ItselfMake the Hearsay Statements More Reliable On September 12, 2012, I.C. made herallegations against father at preschool. The Agency’s September 17, 2012, detention report indicated that the emergency social worker who metwith I.C. at the preschool on that day stated that “minor wasnotableto tell the difference betweentelling a truth andtelling a lie.” (1CT 24.) IC. wastransported by the police to the CALICOfacility to be interviewed. (1CT 93.) The CALICOinterviewer began by asking I.C. to promiseto tell the truth. I.-C. agreed with a “yep.” 63 (9/12/12 Aug RT 4.) I.C. was then asked what she had donethat day before the interview. I.C., who had only beento preschool that day, responded with a litany of verifiable untruths, such as she had watched a movie, took a nap with her babysitter, went to the store with her mother, went to the park with her father, and went to San Francisco. (1CT 92, 93, 105; 1/14/13 RT 15, 16, 25, 26; 9/12/12 Aug RT 4-6.) ManyofI.C.’s statements from the CALICOinterview were. included in the Agency’s social study report. (1CT 93-95.) The DVD of the CALICOinterview was playedin the courtroom for the court and all counsel. (ICT 157.) In departing from the Lucero L. mandate, the [.C. majority stated, “the most notable feature of this opinion is the somewhatnovel application ofLucero L.” (LC., supra, 239 Cal.App.4th at p. 308.) However, in its “novel application”, the majority incorrectly determinedthatI.C.’s statements in the CALICO interview, which were the same as those included in the social study report, met the “indicia of reliability” required under Lucero. The majority reasoned, “in viewing [the DVD] the juvenile court was exercising its power to judge credibility.” (/bid.) Under the LC. majority’s faulty reasoning, the hearsay statement in a recorded interview becomesits ownself-fulfilling evidence and “indicia of reliability.” The logical, but erroneous, conclusion of the majority’s analysis is that the same hearsay statements can validate themselves simply if they are recorded in different medium. This approach effectively nullifies any due process protections for parents. The majority deemedit “significant” that I.C.’s hearsay statement wasnot only foundin the social study report but also in the video recording on the minor’s CALICOinterviews and “thus properly servedas the basis for asserting the jurisdiction of the juvenile court over the minors as a dependent child.” (.C., supra, 239 Cal.App.4th at pp. 308-309.) The 64 majority assigned credibility to I.C.’s statements since the juvenile court had the opportunity to essentially view I.C.’s hearsay statements rather than just read those same statements in a report. However, in the context of a child’s testimony by closed circuit television in a criminal proceeding,it has been found that “the child’s credibility may also be subconsciously enhanced by the television as often the media gives an aura ofcredibility and authority to those it portrays.” (Hochheiser v. People (1984) 161 Cal.App.3d 777, 788.) The Hoccheiser court noted, “it is quite conceivable that the credibility of a witness whose testimony is presented via closed circuit television may be enhanced by the phenomenoncalled status- conferral; it is recognized that the media bestows prestige and enhancesthe authority of an individual by legitimizing his status.” U/d., at p. 788.) “Television justice,” in which the child fact witness testifies in a vacuum, via a medium most closely associated in a child’s mind with wonder, fantasy, magic and “makebelieve,” cannot help but affect the integrity of the child’s testimony. (Ritsema, Testimony ofChildren via Closed Circuit Television in Indiana: Face (to Television) to Face Confrontation (1989) 23 Valparaiso U.L. Rev. 455, 463.) For the majority in .C., the CALICO interview incorrectly filled that role of being more credible and therefore, more reliable. The majority turned to People v. Eccleston (2001) 89 Cal.App.4th 436 (Eccleston), whichit described as “particularly illustrative,” in its discussion of the juvenile court’s reliance on the videotape of the CALICO interview to establish the reliability of I.C.’s statements. W.C., supra, 239 Cal.App.4th at p. 322.) However, Eccleston was a criminalcasethat discussed whether a videotaped interview of the hearsay statements of a non-testifying eight-year-old minor could be played by the jury. In Eccleston, the interviewertestified that the interview ofthe minor commencedonly after the interviewer “was convincedthe victim knew the 65 difference between truth andfalsehood.” (Eccleston, supra, 39 Cal.App.4th at p. 440, emph. added.) No such assurance was madefor I.C.’s interview at the CALICO facility. In fact, quite the opposite was true. The interviewer asked I.C.to promiseto tell the truth. I.-C. agreed with a “yep.” (9/12/12 Aug RT 4.) However, with the very next question, the untruths began as I.C. recited a litany of activities that she claimed to have done before the interview which were completely not true. (9/12/12 Aug RT 4-6.) Regardless of I.C.’s failure to understand that she was nottelling the truth, the interviewer proceeded to question I.C. for forty minutes. The CALICOinterviewer neither challenged I.C.’s contentions nor was I.C. asked about the prior traumatic molestation by Oscar only two monthsprior. The CALICOinterview does not even begin to rise to the level of testimony as the CALICO interviewer was not intending to question I.C.’s story, only to obtain information to support the Agency’s petition. Most importantly, the CALICO interviewer never established I.C. knew the difference between truth and falsehood. In fact, the interviewer never followed up with IC.after I.-C. told verifiable untruths immediately after promising to tell the truth. (9/12/12 Aug RT 4-6.) The CALICOinterviewer wasessentially working as an arm ofthe social services agencies to obtain evidence to support the petition against father - not to engage in any truth finding that would be a benefit to all interested parties.'” 19 “Several researchers note a distinct “confirmatory bias’ on the part of interviewers, i.e., that abuse has occurred and the purposeofthe interview is to get the child to admit the abuse. Bruck and Ceci (1995) observe that someinterviewers blindly pursue a single hypothesis that sexual abuse has occurred andfail to explore rival hypotheses that might explain the behavior of the child. Furthermore, if the interviewer has a bias that sexual abuse has occurred, the interviewer’s methods of questioning will be adversely affected and the child’s response or testimony will be consistent 66 Asthis Court in Lucero L. noted, “[r]eliance on Lucero’s statements in a social study as quoted by a peace officer, or a social worker, present the same due process problems as would reliance on the statements directly quoting her—thefact that the statements are quoted by a social worker or police officer does not invest the statements themselves with any greater reliability in proving the truth ofthe matter asserted.” (Lucero L., supra, 22 Cal.4th at p. 1249, fn.7, italics added.) The majority erred in placing great significance on I.C.’s hearsay statement in the video recording. The majority’s conclusion that the juvenile court exercised its power to judge credibility when it viewed the videotape misunderstoodthat a hearsay statement in a video recordingis still the same hearsay statement that was contained in the social study report and whichhas not been subject to any cross-examination. The reviewing court should not have conferred heightenedreliability on the videotape. Moreover, the juvenile court’s viewing ofthe videotape did not turn into I.C. a testifying witness. The juvenile court couldstill not determine the credibility of I.C.’s statement through the video becauseI.C. wasstill not before the court." with the interviewer’s bias.” (Adams, /nterviewing Methods and Hearsay Testimony in Suspected Child Sexual Abuse Cases: Questions ofAccuracy (1997) 9 Forensics Journal 1/2.) 20 California Evidence Codesection 780 states that the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness ofhis testimony at the hearing, including but not limited to any of the following: (a) His demeanorwhile testifying and the manner in whichhetestifies; (b) The character of his testimony; (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about whichhetestifies; (d) The extent of his opportunity to perceive any matter about whichhetestifies; (e) His character for honesty or veracity or their opposites; (f) The existence or nonexistence ofa bias, interest, or other motive; (g) A statement previously made by him that is consistent with his testimony at the hearing; (h) A 67 The videotape does not solve the problem ofthe inherent unreliability of I.C.’s statements and inability to cross examineI.C. about her statements. The videotape was just another source of uncorroborated hearsay.”! Counsel wasnot able to cross-examineLC. andutilize the “greatest legal engine ever invented for the discovery ofthe truth.” (California v. Green, supra, 399 U.S. 149, 158.) This Court in Lucero L. recognized that “[a]dmissibility and substantiality of hearsay evidenceare different issues” and therefore cannot be handled in the same manner. (Lucero L., supra, 239 Cal.App.4th at p. 1244.) “Mere uncorroborated hearsay or rumor does not constitute substantial evidence. There must be substantial evidence to support such a .. ruling, and hearsay, unless specifically permitted by statutes, is not competent evidence to that end.” (/d., at p. 1244.) The juvenile court and the Court ofAppeal’s approach in J.C. signals a disturbing shift away from any due process protections to families in juvenile dependency proceedings towards the wholesale reliance on hearsay statements of a truth incompetent, non-testifying minor. This misguided and unsupported approachessentially follows the Agency’s narrative, regardless ofthe clear truthfulness of the statements at issue. The Lucero L. mandate has not being applied in an orderly and consistent manner resulting in a weakening of the essential due process protections guaranteed to a family. Anything less than that required by Lucero leaves a parent and statement made by him thatis inconsistent with any part of his testimonyat the hearing; (i) The existence or nonexistence ofany fact testified to by him; (j) His attitude toward the action in whichhetestifies or toward the giving oftestimony; (k) His admission of untruthfulness. 21 The admissibility of the CALICO interview was not challengedat the trial court level. Had the admission of the interview been challenged, it may have been excludedsinceit falls within no hearsay exception, including section 355. (.C., supra, 238 Cal. App.4th at p. 330 (dis. opn.).) 68 family to be forever damaged and stigmatized on the admittedly uncorroborated, confused, and unchallenged hearsay statementof a truth incompetent three-year-old child. CONCLUSION Based on the foregoing, father respectfully requests that this Court find that the juvenile court erred by failing to determine whether the truthfulness of the minoras a hearsay declarant was “so clear from the surrounding circumstancesthat the test of cross-examination would be of marginalutility” as required by this Court in Lucero L. and that the Court ofAppeal in 1.C. erred by affirming the juvenile court’s jurisdictional finding without reviewing the entire record for substantial evidence ofthe minor’s clear truthfulness. Dated: December 8, 2015 Respectfully submitted, LOUISEE. COLLARI Attorney for Appellant, Alberto C. 69 PROOF OF SERVICE BY MAIL (CCP 1013a, 2015.5) I declare that: Iam a resident of/employed in the county of Contra Costa, California. I am over the age of eighteen years and nota party to the within cause. My business address is 4115 Blackhawk Plaza Circle, Suite 100, Danville, CA 94506. On December8, 2015, I served the within APPELLANT FATHER’S OPENING BRIEF ON THE MERITSin Jn re L.C., et al., California Supreme Court Case No. $229276 on the parties in said cause, by placing a true copythereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Danville, California addressed as follows: Clerk, Supreme Court of California Alberto C., appellant 350 McAllister Street San Francisco, CA 94102 (via hand delivery) Clerk, Court ofAppeal Superior Court of California First District Court of Appeal County ofAlameda Division Two Juvenile Justice Center 350 McAllister Street 2500 Fairmont Drive San Francisco, CA 94102 San Leandro, CA 94578 (via TrueFiling) Mary Oaklund 1120 East 14 Street, Suite C Office of the County Counsel San Leandro, CA 94577 1221 Oak Street, Suite 450 Oakland, CA 94621 Rob Waring (Via TrueFiling) East Bay Children’s Law Offices 7700 Edgewater Drive, Suite 210 First District Appellate Project Oakland, CA 94621 Anya Emerson 475 14th Street, Suite 650 Patrick O’Rourke Oakland, CA 94612 1271 Washington Ave PMB 816 (Via Truefiling) San Leandro, CA 94577 I declare under penalty ofperjury the foregoingis true and correct. Executed this 8th day of December, 2015, at Danville, California. en AE Louise E. Collari 71