IN RE I.C.

Appellant’s Petition for Review

Cal.September 15, 2015

S$ 229276 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re I.C., A Person Coming Underthe No. S. Juvenile Court Law ALAMEDA COUNTY SOCIAL No. A141143 SERVICES AGENCY, Alameda County Petitioner and Respondent, Superior Court Case No. $J12019578-01 SUPREME COURT v. FILED AC., SEP 18 2015 Objector and Appellant. Frank A. McGuire Clerk Deputy PETITION FOR REVIEW | After Decision by the Court ofAppeal First District, Division Two Filed August 6, 2015 Louise E. Collari Attorney-at-Law Ca Bar # 156244 4115 Blackhawk Plaza Circle Suite 100 Danville, CA 94506 (925)487-3795 louisecollari@gmail.com Attorney for Appellant father, A.C. By Appointment of the Court of Appeal Underthe First District Appellate Project’s Independent Case System IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re I.C., A Person Coming Underthe Juvenile Court Law ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Petitioner and Respondent, Vv. A.C., Objector and Appellant. No.S. No. A141143 Alameda County Superior Court Case No. $J12019578-01 PETITION FOR REVIEW After Decision by the Court ofAppeal First District, Division Two Filed August 6, 2015 Louise E. Collari Attorney-at-Law Ca Bar # 156244 4115 Blackhawk Plaza Circle Suite 100 Danville, CA 94506 (925)487-3795 louisecollari@gmail.com Attorney for Appellant father, A.C. By Appointment of the Court of Appeal Underthe First District Appellate Project’s Independent Case System TABLE OF CONTENTS TABLE OF AUTHORITIES 4 ISSUE PRESENTED 7 INTRODUCTION 7 STATEMENT 11 A. Juvenile Court Proceedings 11 B. Court of Appeal Decision 15 1. Majority Opinion 15 2. Dissenting Opinion 16 REASONS FOR GRANTING REVIEW 17 1. REVIEW SHOULD BE GRANTED TO PREVENT TRIAL AND APPELLATE COURTS FROM IGNORING THE COURT’S MANDATE FOR CLEAR TRUTHFULNESS AS PREVIOUSLY SET FORTH IN LUCEROL., AND AS CONSTITUTIONALLY REQUIRED, AND TO PREVENT CONFUSION AMONG THE LOWER COURTS BECAUSE THE CASE PRESENTSA VITAL QUESTION OF STATEWIDE IMPORTANCE 17 A. Review Should Be Granted to Prevent the Erosion of This Court’s Lucero L. Mandate for Clear Truthfulness By Trial and Appellate Courts and To Prevent Confusion Among Lower Courts i8 1. Lucero L. Requires a Reviewing Courtto Examine the Recordfor Substantial Evidence of a Minor’s Clear Truthfulness When Hearsay Statements ofa Non-testifying Truth Incompetent MinorAre the Sole Basisfor a Jurisdictional Finding to Ensure That a Parent is Not Unjustly Deprived ofHis/Her Liberty 2 CONCLUSION Interest in Raising His/Her Child and To Maintain Due Process 19 2. Both the Juvenile Court and the Court of Appeal Incorrectly Applied Lucero L. Mandate for Clear Truthfulness Here, and, ifAllowed to Stand, Will Eviscerate Lucero L.’s Mandatefor Clear Truthfulness As Well As Sow Confusion Among the Lower Courts 22 Review Should Be Granted Becauseofthe Critical Needto Ensure the Appropriate Balance Between the Key Objective in Dependency Proceedings of Protecting Children from Abuse, Versus the Important Goals of Ensuring That Parents Are Not Unjustly Deprived of Their Liberty Interest in Raising Their Children, That Children Are Not Unnecessarily Deprived ofthe Benefits of Growing Up with Two Parents in an Intact Family, and That a Parent Is Not Falsely Labeled a “Child Molester” 29 32 CERTIFICATE OF WORD COUNT 34 TABLE OF AUTHORITIES FEDERAL AUTHORITIES Davis v. Alaska (1974) 415 U.S. 308 19 Humphries v. Cty ofLos Angeles (9th Cir. 2009) 554 F.3d 1170 31, 32 Idaho v. Wright (1990) 497 U.S. 805 21, 22 Lassiter v. DepartmentofSocial Services (1981) 452 U.S. 18 30 Lilly v. Virginia (1999) 527 U.S. 116 27 May v. Anderson (1953) 345 U.S. 528 30 Santosky v. Kramer (1982) 455 US. 744 30 U.S. Constitution, 6th Amendment 22 U.S. Constitution, 14th Amendment 8, 18, 24 STATE CASES Blanca P. v. Superior Court (1996) 45 Cal. App.4th 1738 11, 30-31 Inre April C. (2005) 131 Cal.App.4th 599 27 In re B.D. (2007) 156 Cal.App.4th 975 27, 32 Inre Carl D. (Feb. 22, 2012, B232220) [nonpublished opinion] 28 In Re Cindy L. (1997) 17 Cal.4th 15 10, 14, 20, 29 Inre D.M.(April 24, 2012 A130859) [nonpublished opinion] 28 Inre LC. (Aug.6, 2015, A141143)__Cal-App.4th__ 9-11, 15-19, 22, 24-28 Inre Isaac D. (June 12, 2012, A128905) [nonpublished opinion] 28 Inre Janet T. (2001) 93 Cal.App.4th 377 32 Inre Jose M.(Jan. 13, 2011, B223767) {nonpublished opinion] 28 Inre Lucero L. (2000) 22 Cal.4th 1227 8-11, 14, 15, 17-24, 28-30 , 32 In re Malinda S. (1990) 51 Cal.3d 368 19 Inre MC. (May6, 2011, B234171) [nonpublished opinion] 28 In re Sade C. (1996) 13 Cal.4th 952 30 People v. Eccleston (2001) 89 Cal.App.4th 436 26 Schmier v. Supreme Court (2000) 78 Cal.App.4th 703 28 STATE RULESAND STATUTES California Constitution Article I, section 7, subdivision (a) 8, 18, 24 California Rules of Court Rule 8.500(b) 8 Rule 8.500(e) 7 Rule 8.1115(a) 28 Rule 8.1115(b) 28 Evidence Code § 1200, subdivision (a) 19 § 1200, subdivision (b) 19 Penal Code § 11164-11174.31 31 § 11165.1 8 § 11167.5, subdivision (b) 3 1 § 11169, subdivision (f) 3 1 Welfare and Institutions Code § 300 32 § 300, subdivision (4) 8, 14, 20 § 300, subdivision (j) 14 § 355 9, 10, 20, 26, 27 § 355, subdivision (a) 20 § 355, subdivision (b) 19 § 355, subdivision (c)(1)(B) 9, 20 § 361, subdivision (c) 15 § 366.26 30 § 827 31 OTHER AUTHORITIES California Child Welfare Indicators Project at the University of California at Berkeley www.essr.berkeley.eduucb_childweltare/Allegations.aspx 9 Adams, Interviewing Methods and Hearsay Testimony in Suspected Child Sexual Abuse Cases: Questions ofAccuracy (1997) 9 Forensics Journal 1/2 http://www. ipt-forensics.com/journal: volume, j9_1_4.htm 9, 25, 30 Jones & McGraw,Reliable and Fictitious Accounts ofSexual Abuse to Children (1987) 2 J. Interpersonal Violence, 27-45 9, 23 ,30 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re 1.C., A Person Coming Under the Juvenile Court Law ALAMEDA COUNTY SOCIAL No. A141143 SERVICES AGENCY, Alameda County Petitioner and Respondent, Superior Court Case No. $J12019578-01 V. A.C,, Objector and Appellant. TO THE HONORABLE TANIL CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: We pom Appellant A.C., father ofthe minor, I.C. (hereinafter “father”), respectfully petitions for review ofthe published decision ofthe First Appellate District, Division Two. The opinionis attached as Exhibit A. The Court of Appealfiled its decision, including a concurring and dissenting opinion by Justice Stewart, on August 6, 2015. A petition for rehearing was denied by the Court of Appeal on August 26, 2015. Justice Stewart would have granted the petition for review. A copy ofthe denialis attached hereto as Exhibit B. This petition for review is timely. (Cal. Rules of Court, rule 8.500(e).) ISSUE PRESENTED l. In this juvenile dependency case brought on behalf of the minor I.C. under Welfare and Institutions Code! section 300, subdivision ' All further references are to the Welfare and Institutions Code, unless specified otherwise. (d),” did the trial court err in finding that jurisdiction had bee n established by a preponderanceofevidence based solely on the uncorr oborated, confused and unchallenged hearsay statements of a non-te stifying, truth incompetentthree-year-old child (L.C.) without regard to the constitutional due process standard prescribed by this Court in In re Luce ro L. (2000)22 Cal.4th 1227 (Lucero L.)? 2. in affirming the trial court’s decision, did the Court of Appea l abdicate its responsibility under Lucero L. to review the who le record for substantial evidenceofthe minor’s clear truthfulness as re quired by Lucero L. and by the Fourteenth Amendment of the U.S. Constituti on and ArticleI, section 7, subdivision (a) of the California State Constitu tion. INTRODUCTION This case should be accepted for review because it presents a vital question of statewide importance. (Cal. Rules of Court, ru le 8.500(b).) Whenthe hearsay statements of a truth incompetent, non-test ifying minorare the sole basis for jurisdiction, this Court recogniz ed in Lucero L. that to ensure that constitutional due process protections are m aintained for parents, special indicia ofreliability ofthose out-of-court s tatements must exist. (Lucero L., supra, 22 Cal. Ath at p. 1249.) “The heart ofthis case is the tension between the key object ive in dependency proceedings of protecting children from abuse o n the one hand 2 Section 300, subdivision (d) provides that any child who co meswithin the following description is within the jurisdiction of the juven ile court: The child has been sexually abused, or there is a substan tial 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 o r a memberofhis or her household,or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse. and, on the other, the also importantgoals of ensuring that parents are not unjustly deprivedoftheir liberty interest in raising their children, that children are not unnecessarily deprived of the benefits of growing up with two parents in an intact family and that a parent is not falsely labeled a ‘child molester’ with all the vilification and humiliation such a labelbrings. This tensionis particularly high when the evidence involves a young child’s hearsay statements”. (Jn re I.C. (Aug.6, 2015, A141143) __Cal. App.4th __[dis. opn. pp. 1-2.].) This issue is of broad import. It affects hundreds ofthousands of Californians and their families. For example, from January 2012 to December 2014, approximately 1,466,001 children statewide entered the state’s juvenile dependency system. Of that number, 124,939 children were broughtto the state’s attention dueto allegations of sexual abuse. Ofthose, 65,664 children were under the age oftwelve years old.> Within that group, 5,614 were three-year-olds,like I.C.’ In manycasesof alleged sexual abuse, the only evidence before the juvenile court is the hearsay statements of a youngchild. (Jn re Lucero L., supra, 22 Cal.4th at p. 1238.) Obtaining accurate information about sexual abuse from youngchildren, especially youngchildren who,like the minorLC.in the instantcase, have previously been sexually abused bya third party, is particularly difficult.> If the 3 Hearsay statementsof children under the age of 12 are statutorily admissible pursuantto section 355 if contained within a social worker’s report. (§ 355, subd. (c)(1)(B).) 4 Thesestatistics were compiled from the California Child Welfare Indicators Project at the University of California at Berkeley. www.cssr.berkeley.edu/ucb_childwelfare/Allegations.aspx 5 Adams, Interviewing Methods and Hearsay Testimony in Suspected Child Sexual Abuse Cases: Questions ofAccuracy (1997) 9 Forensics Journal 1/2 http://www_.ipt-forensics.com.journal volume?j9_1_4htm (hereinafter, Adams)[noting the difficulty in obtaining accurate information from young children]; Jones & McGraw,Reliable and Fictitious Accounts ofSexual Abuse to Children (1987) 2 J. Interpersonal Violence, 27-45 (hereinafter, 9 reliability of the child’s statementsis not established, then the c hild’s hearsay statements cannotbethe exclusive basis for jurisdic tion. Previously this Court has attemptedto clarify the issue andits constitutional implications. Twice our high court has grappled with what due process requires before the hearsay statements of a child too young to distinguish betweentruth andfiction can be consideredandrelied on in a juvenile dependency case and the intertwined constitutional implicationsthat arise. In re Cindy L. (1997) 17 Cal.4th 15 held tha t due process required both corroboration andparticularized indicia o f reliability before such evidence could be admitted and relied upon. (Id., at p. 34.) After the Legislature amended the law to make such child hearsay statements contained within a social worker’s report admissible in certain circumstances(§ 355), this Court again addressed the requirements of due process in LuceroL. Recogniz ing the crucial role of cross-examination in assessing a witness’s credibility, Lucero L. held that a juvenile court could rely solely o n a child’s uncorroborated hearsay statements only if the surrounding circumstancesestablished that the child’s truthfulness is “so clear ’ that ‘the test of cross-examination would be of marginalutility’. (Lucero L., supra, 22 Cal. 4th at p. 1249.) (in re L.C., supra, __Cal.App.4th__ [dis. opn. p. 2.].) Here, instead of analyzing the minor’s statement under the Luce ro L. guidelines, the Court of Appealreflexively bowed to the trial court’s credibility determination. By doing so, the majority gave “co nclusive effect” to the juvenile court’s equivocal view of L.C.’s credib ility as if she were a truth competent witness who wassubject to cross-ex amination. However, in assessing the sufficiency of such hearsay eviden ce, the 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. Jones) [false allegations by children were particularly difficu lt to detect whena previously abused child names the wrongperson,in p art because the child is able to give detailed descriptions of sexual acti vities].) 10 “The hearing on a contested petition alleging child sexual abuse is... 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 trier of fact. The consequences of being wrong — on either side — are too great.” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1754.) Immediate review is appropriate to ensure the orderly and consistent developmentof California case law. Faithful adherenceto the Lucero L. mandateis not a routine ortrivial matter, whether bya trial court or the Court of Appeal. A child’s welfare, her family’s future and her parent’s reputation can depend on whether a juvenile court finds sexual abuse based solely on hearsay statements of the child whois unable to separate fact from fiction. The constitutional due processrights of thousands of Californiansare at stake. STATEMENT® A. Juvenile Court Proceedings 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 members of the community. They were both employed, with the father having been employedwith the same employerfor over 23 years. Neither parent had any criminalarrests or 6 The Court of Appeal opinion omits many ofthe material facts of the case, and includes several material errors. Father has called attention to these material errors and omissionsin his petition for rehearing. In the dissenting opening, Justice Stewart notedthat the majority opinion “do[es] not even bother to discuss any of the evidence submitted below.” (in re L.C., supra, __Cal.App.4th____ [dis. opn. pp. 3-4.].) li convictions in Alameda County, or any child welfare history. (I CT 57, 65; Supp CT 523, 563, 567; 7/10/13 RT 20, 21; 11/14/13 RT 11 0.) In July 2012, her mother discovered three-year-old LC. being molested by an eight-year-old neighbor, Oscar, in her home,in an incident witnessedby herbrother J.C. and involving a toy train. The pol ice were contacted andI.C.told the police that Oscar kissed her, took off her clothes, and put a wooden toy train in her vagina. (1 CT 87-88; 1/14/ 13 RT 42.) J.C. confirmedto the police that he had seen Oscar put the toy train in LC.’s vagina. (1CT 87-88.) I.C.’s mother took her to the emerge ncy room, where a doctor confirmed there had been some trauma. (1/25/13 RT 23.) Not knowing whatto do with the toy train, the mother subsequen tly keptit in the trunk ofher car. (1/13/12 RT 54-55.) For the next few months, the family avoided any contact with Oscar, but had many conversat ions about what had happened, including the use of anatomically correct language. (1/14/13 RT 30, 56, 57; 1/25/13 RT 27, 30, 38-39.) On September7, 2012, the family saw Oscar forthefirst ti me since the molestation at J.C.’s first day of school. (1 CT 24, 5 7; 1/14/13 RT 59, 60, 67.) LC. was frightened and confused that Oscar would be going to the same school. Motherand I.C. again extensively discussed the molestation. (1/14/13 RT 66.) On September 11, 2012,as she was going to bed, I.C. tol d mother that “daddy put his penis on me”. J.C. corrected her and said “no,that’s what Oscar did”. (1/14/13 RT 16-18-22, 22, 24, 32.) Mot hertried to learn more from L.C.but her story “didn’t seem likeit all went tog ether and made very much sense”. (1/14/13 RT 23.) The next morning, I.C. to ld mother, “T was kidding.” (1/14/13 RT 25.) Later that sameday, I.C. told her preschool worker that “Dadd y put his penis on me,”that father puncheda holein the wall, and that she went to the doctor and she was “fine.” (1CT 93.) Both the police a nd child 12 welfare services responded. (1CT 92.) The emergency social worker who first interviewed I.C. at the preschool reported that I.C. “wasnotable totell the difference betweentelling a truth andtelling a lie.” (ICT 24.) A same- day medical exam ofI.C., as well as an immediate search of the family home, showed no evidenceof sexual abuse, no holes in the walls, nor any evidenceofbiological fluids or other forensic evidence. (1CT 99, 103, 105.) I.C. was immediately interviewed at the Child Abuse Listening and Interviewing and Coordination Center (hereinafter “CALICO”). After promisingtotell the truth, I.C. described the events ofthat day up until the interview with a story that was verifiably untrue.’ (9/12/12 Aug RT 4-6.) LC. told the interviewer that “daddy put penis on me... then put a train on me, then he put a flower on me yesterday...and he put a necklace on me,” (9/12/12 Aug RT8), on her brother’s bed and on the bed in the CALICO interview room. (9/12/12 Aug RT 29-32.) IC. stated that she had seen father touch her older half-sister, RJ and put his penis and toy train on her as well, when “everybody”wasin the bed including RJ, herself, her father, her babysitter and hersister. (9/12/12 Aug RT 36-37.) RJ andthe babysitter both entirely denied any inappropriate behavior by father, muchlessthis particular incident as described by 1.C. (ICT 97, 3/14/13 RT 10, 11, 15.) After that twenty-four hour period in September 2012, I.C. never made any other statement against father, although she did again mentionthe molestation by Oscar. (3/14/13 RT 13, 18, 19, 31.) The police did not pursue any criminal chargesagainst father. (1CT 65.) 7 1.C. told the interviewer that 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 went to San Francisco. (9/12/12 Aug RT 4-6.) Noneofthese, except for the fact that she had goneto preschool, were accurate. (1CT 92, 93, 105; 1/14/13 RT 15, 16, 25, 26.) 13 On September 14, 2012, the Alameda County Social Services Agency(hereinafter the ‘Agency”) filed a section 300 petition pursuant to subdivision (d) on behalf of I.C. and subdivision (j) on behalf of J.C., based on I.C.’s statements that father had sexually abused her * (1CT 1) At the contested jurisdictional/dispositional hearing, three-year-old LC. did nottestify. No objections were made by father’s trial counsel to the admission ofher hearsay statements contained within variousreports, as well as within the CALICO videotape, which was also admitted into evidence. Over father’s objection that jurisdiction was not supported by sufficient evidence, the juvenile court sustained the section 300, subdivision (d-1) and (d-3) allegations ofthe first amended petition by a preponderance ofevidence.’ (ICT 186.) In making its decision, the juvenile court stated that “all the court has to go on in this case is the hearsay statement of a three-year-old minor” which were “very unclear and at times very confusing.” (3/27/13 RT 2.) After citing Cindy L., supra, 17 Cal.4th 15 and Lucero L., supra, 22 Cal.4th 1227,it discussed at length evidencethatit 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.) Based solely on I.C.’s hearsay statements, the court found by a preponderance of the evidencethat 1.C. had been sexually molested by father. The court further found, by clear and convincing evidence,there is or would be a substantial dangerto I.C.’s physical health, safety, protection, or physical or emotional well-being if she were returned 8 The petition brought on behalf of J.C. was dismissed by the court on March 27, 2013. J.C. was not made a dependentofthe court andis not a party to the appeal. (1CT 186; 3/27/13 RT 9.) ® The juvenile court dismissed all other allegations from the petition, including the failure-to-protect allegation (based on father’s alleged sexual abuse) against the mother. The court sustained the allegation of molest and that mother did not believe that father sexually molested I.C. (ICT 194.) 14 home, and there were no reasonable means by whichher physical health could be protected without removing her from father’s phys ical custody. (§ 361, subd. (c); 2CT 484.) The court basedits decision that I.C. would be at risk on the fact that mother did not believe that the se xual abuse had occurred and was therefore unable to protect I.C., an d that the mother’s safety plan to ensure that the minor would neverbeleft al one with father was not feasible. (2/5/14 RT 22-23.) To that end, the juven ile court ordered LC.to remain in the homeofthe mother, but prohibited f ather from living in the family home. (2C T 484) Father appealed. (2CT 498.) B. Court Of Appeal Decision 1. Majority Opinion In a published opinion, a majority of the Court of Appeal affirmed the juvenile court’s jurisdictional and dispositional finding s and orders. The majority deferred to the juvenile court’s ruling with out examining whetherI.C.’s statements bore the necessary indicia of reliability to establish her clear truthfulness as required by Lucero L. Instead, the majority affirmedthe juvenile court’s find ings even asit acknowledgedthat there was “no direct or tangible proo fthat any molestation occurred.” (In re L.C., supra, __Cal.App.4t h ___[p. 11.].) The majority incorrectly believed that father was aski ng for a “somewhat novelapplication” ofLucero L. (in re LC., supra, __Cal.App.4th __ [p. 2.].) The majority misunderstood t he mandate of Lucero L. as evidencedbyits assertion that the issue to be decided was not whether the reviewing court thought that I.C.’s statements bore sufficient indicia ofreliability to satisfy Lucero L., but whether subst antial evidence supported the juvenile court’s findingsthat they did. /d., at p. 22.) In taking this approach, the majority effectively relinquishe d its role in the process and became a “rubberstamp”ofthe juvenile co urt’s findings. 15 The majority also erred in placing great significance on I.C.’s hearsay statementin the video recording.(In re LC., supra, _C al.App.4th ___ [pp. 3, 17.].) The majority’s submission to the conclusiontha t the juvenile court exercised its power to judge credibility when it v iewed the videotape misunderstood that a hearsay statement in a video re cordingis still a hearsay statement whichhas not been subject to any cros s- examination. The interviewer neither challenged I.C.’s content ions nor was LC. asked aboutthe prior traumatic molestation by Oscar.!° As a result, the majority’s conclusion was neither a review nor an analysis ofthe presenceof substantial evidence of I.C.’s clear truthfulness and whetherthereliability of her statements was established in the juvenile court. 2. Dissenting Opinion Justice Stewart, in a forceful dissent, called the majority’s refl exive affirmanceofthe juvenile court’s erroneous decision in disr egard ofthe Lucero L. mandate a “grave injustice” that contravenes our fundamental principles of due process and that forever marked a family w ith the stigma of a factually unsupported finding thatits father sexually abu sed his young daughter. (in re I.C., supra, __Cal.App.4th __ [dis. opn.p . 5.].) The dissent noted that in deferring to the juvenile court’s “mo dest conclusion,” the majority “abdicates this court’s responsibi lity under Lucero L. to review the whole record for substantial evidenc e of L.C.’s clear truthfulness”. (In re L.C., supra, __Cal.App.4th __ (dis. op n. p. 1.).) Dueto the majority’s lack of discussion of any ofthe eviden ce submitted to the juvenile court, the dissent took great pain s to review the 10 The use of videotaped interviewsof children who are alleg ed to have been sexually abusedis on the rise across the state. Judicial treatment of these videotapes andthe significance which can and should b e attached to these videotaped interviews will continue to be an issue for th e courts. 16 evidence in considerable detail. The dissent noted that it was “not aware of any appellate court that has so precipitously acquiescedin a trial court’s determination of a hearsay declarant’s credibility without further review. Indeed, the majority approachflies in the face of extensive concerns addressed in our jurisprudence regardinga fact finder’s reliance on hearsay statements.” (In re .C., supra, ___Cal.App.4th ___[dis. opn.p. 24.].) The dissentcorrectly recognized that Lucero L. madeclear that more is required before a court may base jurisdictional findingssolely on the uncorroborated hearsay statements of a young truth incompetent non- testifying minor to protect a parent’s federal and state constitutional due processrights. In such a circumstance, the court must find from the statements made and the surrounding circumstancesthat the minor’s truthfulness is 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”. (In re LC., supra, _Cal.App.4th __ [dis. opn.p. 24.].) The dissent concluded that based on a review ofthe entire record in the light most favorable to the judgment there was no substantial evidence of L.C.’s clear truthfulness. (In re LC., supra, _Cal.App.4th __ [dis. opn.p. 25.].) REASONS FOR GRANTING REVIEW L REVIEW SHOULD BE GRANTEDTOPREVENT TRIAL AND APPE LLATE COURTS FROM IGNORING THIS COURT’S MANDATEFOR CLEAR TRUTHFULNESS AS PREVIOUSLY SET FORTH IN LUCERO L., AND A S CONSTITUTIONALLY REQUIRED, AND TO PREVENT CONFUSION AMONG THE LOWER COURTS BECAUSE THIS CASE PRESENTSA VITAL QUESTION OF STATEWIDE IMPORTANCE The First Appellate District, Division Two, with its published decision in In re LC., deferred to the juvenile court’s findings without regard to the constitutional standard mandated by this Court in Lucero L. 17 and as required by the Fourteenth Amendment ofthe U.S. Constitution and Article I, Section 7, subdivision (a) of the California State Constitution. As a result, it affirmed a decision madeon an unclear record that unjustly separated a father from his wife and children to the detriment of them all. Allowing the majority’s decision to stand will erode Lucero L.’s application, will confuse lower courts, and will destroy any semblance of due process and fairness in juvenile dependency proceedings. Accordingly, review should be granted. A. Review Should Be Granted to Prevent the Erosion of This Court’s Lucero L. Mandate for Clear Truthfulness By Trial and Appellate Courts And To Prevent Confusion Among Lower Courts In 2000, this Court established in In re Lucero L., supra, 22 Cal.4th 1227, that the hearsay statements of a non-testifying, truth incompetent minor only can be relied upon as the sole basis for a jurisdictional finding in dependency proceedingsif thereis substantial evidence presented that the minor’s truthfulness is clear because of due process concerns in the Fourteenth Amendmentofthe federal constitutions and Article 1 of the state constitution. (/d., at pp. 1248-1249.) However, with the majority decision in Jn re LC., the First District, Division Two, abdicatedits responsibility to conduct a judicial review for substantial evidence ofa child’s clear truthfulness as required by Lucero L., andviolated constitutional standards, in favor of affirming a jurisdictional decision based on the uncorroborated out-of-court statements of a non- testifying three-year-old child incapable of separating fact from fiction who was never cross-examined. Noother evidenceofthe alleged sexual abuse was admitted or relied upon other than the child’s statements that were described as “very unclear, and at times very confusing.” (3/27/13 RT 2-3.) 18 The decision in In re 1.C. highlights the lower courts’ need for guidance from this Court in this particularized area oflaw to ensure the orderly and consistent developmentof California case law. Thethree justice panelofthe First District, Division Two that reviewed the issue was sharply at odds. The lengthy and impassioned dissent penned by Justice Stewart broughtto the forefront the different interpretations and confusion among the justices of what Lucero L. requires of a reviewing court in these difficult situations. Lowercourts need clarification from this Court. 1. Lucero L. Requires a Reviewing Court to Examine the Recordfor Substantial Evidence ofa Minor’s Clear Truthfulness When Hearsay Statements ofa Non-testifying Truth Incompetent MinorArethe Sole Basisfor a Jurisdictional Finding to Ensure That a Parent Is Not Unjustly Deprived ofHis/Her Liberty Interest in Raising His/Her ChildAnd To Maintain Due Process Hearsay evidence, which is generally inadmissible,!! is allowed in juvenile dependency matters with certain safeguards. (Evid. Code § 1200, subd. (a) and (b); § 355, subd.(b); see also In re Malinda S. (1990) 51 Cal.3d 368, 382-383.) Due process concerns increase when the minor who makesthe hearsay statement is determinedto the truth incompetent.'* The difficulty inherent in relying on the hearsay statementsofa truth incompetent non-testifying minor in juvenile dependency proceedings has twice previously been the subject of review by this Court. '1 Hearsay evidenceis generally not admissible since the person who made the out-of-court statementis not available for cross-examination. Cross- examination is “the principal means by whichthe believability of a witness and the truth of his testimony are tested”. (Davis v. Alaska (1974) 415 US. 308, 316.) \2 Generally, truth incompetenceis the basis for excluding witness testimony. (Evid. Code § 701.) 19 In 1997, this Court was called upon in Jn re Cindy L., supra, 17 Cal.4th 15, to determine whether the “child dependency hearsay exception”!> was applicable when the court decides that the child is not competentto testify because he or she is unable to understand the duty to tell the truth or does not possessthe ability to distinguish between truth and falsity. (/d., at p. 18.) The Cindy L. court found that the “child dependency exception in sexual abuse cases was well founded, but that the exception should be more fully developed to provide specific due process protectionsfor parents in child dependency hearings”. (Jn re Cindy, supra, 17 Cal.4th at p. 18.) Accordingly, the Court held that due process required both corroboration and particularized indicia ofreliability before such evidence could be admitted andrelied upon. (/d., at p. 34.) Soonthereafter, the Legislature amended section 355 to create a hearsay exception applicable to the dependency proceedings for uncorroborated out-of-court statements of a child under 12 that are contained in a social study unless the party objecting to their admission establishes that the statements were procuredby fraud, deceit or undue influence. (§ 355, subds. (a), (c)(1)(B).) In 2000, taking into account this new hearsay exception, this Court in Lucero L. addressed the due process considerations and concernsthat arise when hearsay statementsare at issue. In Lucero L, a report was made to a child abuse hotline that father touched his almost three-year-old daughter, Lucero, in her genital area. (Jn re Lucero L., supra, 22 Cal. 4th at p. 1232.) A section 300 petition was filed under subdivision (d) alleging 13 The “child dependency hearsay exception” allows, undercertain conditions, admission of out-of-court statements by alleged victims of child sexual abuse during a hearing to determine whether a child is a dependent of the juvenile court. (In re Cindy L., supra, 17 Cal.4th at p. 18.) 20 sexual abuse by father. Lucero made the statements regarding the alleged abuseto several individuals over a “considerable”period of time of several months. (/d., at p. 1250.) In addition, the medical examination of Luc ero revealed an anal fissure that could have been caused by constipation or abuse andthe juvenile court heard testimony from an oldersibling detailing the sexual abuse she had suffered at the hands of the father. (/d., at pp. 1234, 1250.) The allegations of the petition were found to be truein the juvenile court and upheld on appeal. (/d., at p. 1237.) After reviewing the child dependency exception and due process concernsinvolving the use of hearsay, this Court held “except in those instances recognized by statute wherethe reliability of hearsayis established, hearsay evidencealoneis insufficient to satisfy the requirement of due process of law, and mere uncorroborated hearsay does not con stitute substantial evidence”. (In re Lucero L., supra, 22 Cal. 4th at pp. 1244- 1245.) 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 explained that “the out-of-court statements ofa child whois subject to a jurisdictional hearing and whois disqualified as a witness because of the lack of capacity to distinguish betweentruth and falsehood at he timeoftestifying may not be relied on exclusively unless the court finds that the ‘time, content and circumstances’ ofthe statement provide sufficient indicia of reliability”. (Id., at pp. 1247-1248.) It was essential that sufficient indicia ofreliability exist to ensure that the child’s “truthfulness is so clear from the surrounding circumstancesthatthe test of cross-examination would be of marginalutility”. (/d, at p. 1249.) Lucero L. looked to the United States Supreme Court decision in Idaho v. Wright (1990) 497 U.S. 805, to support its position that there can be full reliance on a child victim’s hearsay with a corroboration 21 requirement so long as it meets the test of reliability. (/n re LuceroL., supra, 22 Cal. 4th at p. 1249-1250.) In Idahov. Wright, the United States Supreme Court discussed the constitutionality of a state’s use ofits residual hearsay exception to admit a non-testifying child’s prior hearsay statements regarding sexualabusein a criminal prosecution. The Court stated “that many possible sources of inaccuracy and untrustworthiness which maylie underneath the bare untestedassertion of a witness can best be brought to light and exposed,if they exist, by test of cross-examination”. (Idahov. Wright, supra, 497 US.at p. 819.) It found admission of a child’s out-of- court statements did not offend the Sixth Amendmentso long as those statements bore “particularized guarantees of trustworthiness”. (/d., at p. 816.) In setting aside the corroboration requirement of Cindy L., this Court madeclear in Lucero L. that “we emphasize the importanceofjuvenile court scrutiny ofthe statement ofyoung children who are both legally incompetent and insulated for cross-examination”. (in re Lucero L., supra, 22 Cal. 4th at p. 1249.) Without the benefit of cross-examination to assess the believability and truth of the statements being made, and wherethere is truly no corroborating evidence supporting the minor’s hearsay statement, Lucero L. intended to provide safeguards to maintain the constitutionality of the dependency system and to ensure that due process wasbeing followed. 2. Both the Juvenile Court and the Court OfAppeal Incorrectly Applied Lucero L’s Mandatefor Clear Truthfulness Here, and, If‘Allowed to Stand, Will Eviscerate Lucero L’s Mandate And Sow Confusion Amongthe Lower Courts In LC., the juvenile court’s jurisdictional finding rested entirely on the uncorroborated out-of-court statements of a non-testifying, truth incompetent three-year-old child. In addition, this was not just any child . 22 This was child who had been sexually abused by a neighbor boy only two months before she madeheronetimestrikingly similar allegations against father.'4 Because a child’s welfare, her family’s future, and her parent’s reputation depends on whether a juvenile court finds sexual abuse based solely on hearsay statementofa child whois unable to separate fact from fiction, faithful adherence to the Lucero L. mandate is required. The majority’s opinion in /.C. sets a dangerous precedent for the many families that are involved in juvenile dependency proceedings. LuceroL. provided the roadmap that must be scrupulously adhered to whenthe sole basis for jurisdiction without any other corroborationis the following: 1) the hearsay statement; 2) of a non-testifying; 3) truth incompetent minor. In those circumstances, evidence of the child’s clear truthfulness must be so substantial, indeed, that cross-examination of the child would be of marginal utility. (In re Lucero L., supra. 22 Cal.4th at p. 1249.) LC.’s majority opinion and its forceful dissent show thereis confusion amongthe justices as to what LuceroL. truly requires. Moreover, to the extent the majority eviscerates Lucero L. ’s mandate, this published decision, if allowed to stand, will establish binding precedentthat is contrary to Lucero L. and the federal andstate constitutional due protection that it provided. The approach taken by the juvenile court and the Court of Appeal signals a disturbing slide away from any due process protections to families in juvenile dependency proceedings towards the \4 False allegations by children were particularly difficult to detect when a previously abused child names the wrong person, in part because the child is able to give detailed descriptions of sexualactivities. In the Jones and McGrawstudy ofthe incidence-rate of false allegations, the researchers found that four ofthe false allegations made by children in their sample were made by girls who had been previously sexually abused. (Jones, supra, 2 J. Interpersonal Violence, 27-45.) 23 wholesale reliance on hearsay statements of a truth incompetent, non- testifying minor that supports the Agency’s narrative, regardless of the clear truthfulness of the statementsat issue. In LC., the juvenile court stated “[s]o there’s supporting evidence on both sides. There’s evidence that supports reliability of her statements, and there’s evidence that supports a conclusion that her statements are unreliable”.!5 (3/27/13 RT 6.) Despite I.C.’s recognized confusing and unclear out-of-court statements, the majority abdicated its responsibility to review the record for substantial evidence of I.C.’s clear truthfulness and erroneously accepted the juvenile court’s decision of which of I.C’s unsubstantiated statements were to be believed and which were not to be believed. Ignoring the mandate ofLucero L., the juvenile court, and by acquiescence the Court ofAppeal, deemedcertain I.C.’s statements — those which were clearly false based on witness testimony and forensic evidence —as “unreliable”, while deeming any statementthat father sexually abused her as “reliable”. However, the statements that the juvenile court determined to support a finding ofjurisdiction were inextricably linked to 1.C.’s confusing and fantastical tales. Lucero L. recognized that because cross-examinationis so crucial to the due process protections enforced by the Fourteenth Amendment and Article 1 of the California Constitution, if cross-examination is removed from the equation, there must be some dependable wayto ensure the reliability and truthfulness of the out-of-court statements of a non-testifying truth incompetent young child that form the basis for a jurisdictional finding. In that regard,it is the surrounding circumstancesthat establish '5 As the dissent pointed out, the juvenile court’s finding that significant evidence pointed to the unreliability of I.C.’s statements should have resulted in a reversal ofjurisdictional findings. Un re L.C., supra, __Cal.App.4th___[dis. opn.p. 26.].) 24 substantial evidence ofthe clear truthfulness of the child’s statement that will give reliability to the hearsay statement. The majority put undue weight on the videotaped CALICO interview of I.C. The majority stated that the juvenile court’s determination that I.C.’s statements were credible was “clearly based in large part on the court’s opinion of what was seen on the videotape”. (Jn re I.C., supra, __Cal.App.4th__ [p. 17.].) The majority continued that the videotape “figured prominently in the [juvenile] court’s decisionto assert jurisdiction” and was “the sourceofits conclusions”. (/d., at pp. 18, 20.) The majority determined that the juvenile court’s viewing of the videotape created a “significant difference between the juvenile court’s decision in Lucero [where there was no videotape before the court] and the one here.” (Ud., at p. 17.) The majority’s focus on the videotaped recording of the CALICO interview and effort to somehow confer heightenedreliability on the videotape ignores the fact that the videotapeis still hearsay. CALICO interviews, unsworn, without counsel and without cross-examination,are not the equivalentof court testimony. In fact, in the CALICOinterview, L.C.’s contentions were never challenged by the interviewer nor was she asked about the prior molestation by Oscar or her recent sighting of Oscar and the confusion andfear that it created in her.'® 16 “Several researchers note a distinct “confirmatory bias’ onthe part of interviewers,i.e., that abuse has occurred and the purpose ofthe 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 and fail to explore rival hypotheses that might explain the behavior of the child. Furthermore,ifthe 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 with the interviewer’s bias”. (Adams, supra, 9 Forensics Journal 1/2.) 25 The videotape was just another source of uncorroborated hearsay upon which there was no cross-examination.'’ Generally, a reviewing court does not second guessa trial court’s views regarding the credibility of a testifying witness. However, I.C. was nota testifying witness, rather she was incompetentto testify “precisely because she was incapableof separating fact from fiction, and her out-of-court, unchallenged statements were the only evidencethat [father] sexually abused her”. (/n re L.C., supra, __Cal.App.4th — [dis. opn. P. 24.].) The videotaped interview is not synonymous to a credibility determination by the juvenile court when a witnesstestifies in court, is subject to cross-examination by variousparties, and then the court can assess the witnesses credibility. Most crucially, the videotape doesnot solve the problem ofthe inherent unreliability of I.C.’s statements and inability to cross examineI.C. about her statements. !® The majority also attempted to find corroboration in the minor’s alleged fear at being left alone with father. (In re I.C., supra, __Cal.App.4th ___ [p. 21, fn. 8.].) However, as pointed outin the dissent andset forth in the record, mother expressly testified that I.C. was notafraid of father. (/d., [dis. opn. p.2, fn.2.]; 1/14/13 RT 24, 36.) Furthermore,as the dissent noted, the “portion of mother’s testimony that the majority relied upon ultimately 17 The admissibility of the CALICO interview was not challenged at the trial court level. (In re LC., supra, __Cal. App.4th__ [dis. opn.at p. 3.].) Had the admission ofthe interview been challenged, it may have been excluded sinceit falls within no hearsay exception, including section 355. 18 In People v. Eccleston (2001) 89 Cal.App.4th 436, the court allowed a videotaped interview of the hearsay statement of a non-testifying witness to be played to the jury. The interviewer had testified at trial that the interview of the minor commencedonly after the interviewer was “convinced the victim knew the difference between truth and falsehood”. (Id., at p. 44.) In .C., the CALICO interviewer neverestablished I.C. knew the difference between truth and falsehood. In fact, the interviewer never followed up with I.C.after I.C. told verifiable untruths immediately after promisingto tell the truth. (9/12/12 Aug RT 4-6.) 26 rests on whatI.C. told mother and father’s abuse. The majority does not explain how a truth incompetent hearsay declarant can corroborate her own statements.” ([bid.) A reviewing court’s responsibility in such a chargedsituation as an allegation of sexual abuse by a parent demandsa review ofthe entire record for substantial evidenceofthe child’s reliability.!9 Anything less leaves a parent and family to be forever damaged andstigmatized on the admittedly uncorroborated, confused, and unchallenged hearsay statementofa truth incompetent three-year-old child. To date, the published cases that have applied Lucero L.in the context of the hearsay statements of non-testifying, truth incompetent minor have found corroborating evidenceto bolster the hearsay statements. In fact, corroborating evidence was even discussed by the Lucero L. court to strengthen the reliability of Lucero’s hearsay statementas noted in its reliance on an oldersibling’s statement that father had showered with her and engaged in inappropriate sexualized behavior. (In re Lucero L., supra, 22 Cal.4th at p. 1250.) In In re April C. (2005) 131 Cal.App.4th 599,the Second District affirmed the juvenile court’s findings based on the minor’s hearsay statements regarding the alleged abuse and the corroborating evidence that the minor had a healing analtear. (/d., at p. 612.) In Inre B.D (2007) 156 Cal.App.4th 975, the Third District found that the trial court erred in dismissing the petition because even though the hearsay statements of 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.) 19 A trial court’s findings concerningthe indicia of reliability are subjectto independent review on appeal. (Lilly v. Virginia (1999) 527 U.S. 116, 136.) 27 There are numerous unpublished cases that have discussed the application ofLucero L.to assessthe reliability of a minor’s hearsay statements. Those courts that have found the hearsay statements of a non- testifying, truth incompetent minorreliable also include additional corroborating evidence. The corroborating evidence,in effect, limited the urgency ofensuringtheclear truthfulnessorreliability of the out-of-court statements of a non-testifying, truth incompetent minor. (Jn re Isaac D. (A128905, June 12, 2012)[nonpublished opinion] (perpetrator admitted to molestation); In re D.M. (A130859. April 24, 2012)[nonpublished opinion] (testimony of witnesses provided corroboration); /n re Jose M(B223767, Jan. 13, 2011)[nonpublished opinion] (testimony of witnesses provided corroboration); In re M.C. (B234171, May 6, 2011) [nonpublished opinion] (testimony of other family members, child’s fear of father provided corroboration); Jn re Carl D. (B232220, Feb. 22, 2012)[nonpublished opinion] (criminal conviction for spousal abuse provided corroboration.).)”° Allowing the majority’s ruling in Jn re LC. to stand will eviscerate Lucero L.’s mandatefor clear truthfulness as well as sow confusion among the lower courts because /.C., as it now stands, is contradictory to Lucero L. Jurisdictional findingsthat rely solely on the hearsay statements of a non- testifying, truth incompetent child with no corroborating evidenceat all, the 20 Although California Rules of Court, rule 8.1115(a) generally prohibits the citation of unpublished opinions, the rule does not categorically bar citation to unpublished opinions. (Cal. Rules of Court, rule 8.1115(b) [setting forth exceptions to the generalrule against citing to and relying on unpublished decisions].) “The fact that opinions are not publishedin the Official Reports means nothing more than that they cannotbe cited as precedent by other litigants who are not parties thereto.” (Schmierv. Supreme Court (2000) 78 Cal.App.4th 703, 712.) Appellant’s citation to unpublished decisions to show theissue is unsettled does not violate California Rules of Court, rule 8.1115(a), because appellant is not relying on the unpublished decisions as precedent that should be followed, but only to demonstrate the need for review. 28 guidance provided by Lucero L. must be followed withoutsubstitution or omission. Anything less is only disastrous. B. Review Should Be Granted Becauseof the Critical Need to Ensure the Appropriate Balance between the Key Objective in Dependency Proceedings of Protecting Children from Abuse, versus the Important Goals of Ensuring That Parents Are Not Unjustly Deprived of Their Liberty Interest in Raising Their Children, That Children Are Not Unnecessarily Deprived of the Benefits of Growing up with Two Parents in an Intact Family, and That a Parent Is Not Falsely Labeled a “Child Molester” This Court has twice before attempted to grapple with the tension between the key objective in dependency proceedings of protecting children from abuse, while at the same time ensuring that dependencycasesare not broughtnorallegations maintained without sufficient evidence so that parents are not unjustly deprived oftheir liberty interest in raising their children or falsely labeled a child abuser, and so that children are not unnecessarily deprived of an intact family. (in re Lucero L., supra, 22 Cal.4th 1227; In re Cindy L., supra, 17 Cal.4th 15.) This balance is particularly delicate whenit involves a young child’s hearsay statements. When the hearsay statements of a truth incompetent, non-testifying child are the thread that can unravel a family, the reliability of that thread cannot beleft to chance. If the child’s reliability and truthfulness are not carefully assessed, a family suffers a grave injustice that will shape them indefinitely. Asnoted above, the number of Californians affected by this issue is in no way insignificant. Many sexual abusecasesof children are brought solely on the basis of the hearsay statement of a child. (Jn re LuceroL, supra, 22 Cal.4th at p. 1238.) Obtaining accurate information about sexual abuse from youngchildren, especially young children who,like the minor LC. in the instant case, have previously been sexually abused bya third 29 party, can be particularly difficult. Not only maythere be 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,”! but it is hard to detect when a previously abused child names the wrong person because the child is able to give detailed descriptions of sexual activities.7? These difficulties require a clear mandate for the courts to understand and apply consistently. Furthermore, parents have a “fundamental liberty interest” in the “care, custody, and management”oftheir biological children. (Santosky v. Kramer(1982) 455 U.S. 744, 753; In re Lucero L., supra, 22 Cal.4th 1227, 1247.) “[A] parent’s desire for and right to ‘the companionship,care, custody and managementofhis or her children’ is an importantinterest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ [Citation.]” (Lassiter v. Department ofSocial Services (1981) 452 U.S. 18, 27.) While not equivalent to the interest of a criminal defendantin his or her liberty Un re Sade C. (1996) 13 Cal.4th 952, 982), the right to conceive and raise one’s children requires greater protection than the interest ofcivil litigants seeking monetary damages. (May v. Anderson (1953) 345 U.S. 528, 533; see also Santosky v. Kramer, supra, 455 U.S. at pp. 758-759.) The prejudice that can result to a parent whois falsely determined to have molested his child is devastating and far-reaching. Not only may he or she lose custody of his or her children in violation of his or her fundamental liberty interest, but he or she may very well face the subsequent termination of parental rights. (§ 366.26.) Removal ofthe child or termination of parental rights occursall the more often because a parent denies that 21 Adams, supra, 9 Forensics Journal 1/2. 22 Jones, supra, 2 J. Interpersonal Violence, 27-45.) 30 molestation occurred, in what has been called the “confession dilemma.” (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1752-1754 [“{i]f an injustice occurs . . . , the hard factoflife is that the very innocenceof the parentwill in all likelihood render the family asunder. Andit is also irrefutable that no honorable person will want—or should have—to admit to a despicable sexual act ofwhich he or she is innocent.”].) Moreover, while juvenile dependencies are not criminal cases nor are many parents necessarily convicted of any crimes, a finding that a father has sexually abused his daughter carries more “social opprobrium”than almost any other act. (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1752 [“Few crimes carry as much (or as much deserved) social opprobrium as child molestation. Most people would rather be accused of bank robbery.”’].) Although juvenile dependency proceedings themselves are confidential, (section 827), third parties can easily learn of substantiated allegations of child abuse by a parent. Whenan allegation ofchild abuse or severe neglect has been substantiated against a parent, the parent’s name and identifying information is placed on the Child Abuse Central Index” (CACTI) where it remains until the parent reaches the age of 100. (Penal Code § 11169, subd. (f).) Under the Child Abuse and Neglect Reporting Act (CANRA), the California Department of Justice is required to make the CACTIinformation “available to a broad range of third parties for a variety of purposes” such as backgroundchecksrelated to the obtaining oflicenses for variousactivities. (Humphries v. County ofLos Angeles (9th Cir. 2009) 23 Child Abuse Central Index (CACI), was created by the Legislature in 1965 as a tool for state and local agencies to help protect the health and safety of California's children. Defined in Penal Codesections 11164 through 11174.31, these statutes are referred to as the Child Abuse and Neglect Reporting Act (CANRA). 31 M S R P PR RR P Me e se h 1 8 554 F.3d 1170, 1177-1178; Pen. Code §11167.5, subd. (b).) The CACI listing “plays an integral role in obtaining many rights under California law, including employment, licenses, volunteer opportunities, and even child custody.” (/d., at 1178.) Humphries held that wherea state statute “creates both a stigmaanda tangible burden on an individual’s ability to obtain a right or status recognized bystate law, an individual’s liberty interest has been violated”. (/d., at p. 1188.) In addition, there is a general public interest in ensuring that the child services agencies and the juvenile courts apply with great care the provisions in section 300 which authorize the state to interfere with the fundamentalright to parent, finding true only those provisions pled and proven.(In re Janet T. (2001) 93 Cal.App.4th 377, 392.) A parentalso has a personalinterest in being certain that erroneous findings that his conduct brought his child within the juvenile court’s jurisdiction are notleft standing. Although the juvenile court dependency system is not intended to punish parents but rather protect children from abuse and neglect,it is foreseeable that the basis ofjurisdiction over one child’s will carry with it enormousstigmaand disgrace. (Jn re B.D., supra, 156 Cal.App.4th 975, 983.) It is, therefore, crucial that the reliability of those statements be afforded a careful and independent review at every level. CONCLUSION The Court of Appeal’s published majority opinion erroneously applies this Court’s opinion in Lucero L. Allowing this precedential decision to stand would eviscerate Lucero L.’s mandate for clear truthfulness, and, along with it, any remaining constitutional due process protections for California families involved in child dependency proceedings brought solely based on uncorroboratedallegations of sexual abuse by truth incompetent minors who were, by virtue of their young age 32 and inability to separate fact from fiction, unable to be cross examined. Accordingly, father respectfully requests that review be granted. Dated: September 14, 2015 Respectfully submitted, Q : (Xorg FCollar LOUISE E. COLLARI Attorney for Father, A.C. 33 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court, rule 8.360, subdivision (b)(1), I herebycertify that appellant father’s Petition for Review dated September 14, 2015, has 8,216 words as counted by the Microsoft Word Program. Dated: September 14, 2015 By: Koseé lalla, LOUISEE. COLLARI Attorney for Father, A.C. 34 35 EXHIBIT A Filed 8/6/15; dissent by J. Stewart CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO In re L.C., a Person Coming Underthe Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, A141143 Vv. (Alameda County ALBERTOC., Super. Ct. No. $J12019578) Objector and Appellant. Subdivision (d) of section 300 of the Welfare and Institutions Code’ (subdivision d) authorizes the juvenile court to assert dependency jurisdiction over a minorif “T he child has been sexually abused, or there is a substantialrisk that the child will be se xually abused . . . by his or her parent or guardian or a member of his or her household, or the parent or guardian hasfailed to adequately protect the child from sexual abuse wh en the parent or guardian knew or reasonably should have known that the child was in dan ger of sexual abuse.” On March 27, 2013, the Alameda County Juvenile Court sustained the allegat ion ofa petition filed by the Alameda County Social Services Agency (Agency)to the effect that Alberto C., the presumedfather, had sexually molested L.C., his four-year-old ' Statutory referencesare to the Welfare and Institutions Code unless otherwise indicated. daughter.’ The dispositional order was not made until February 5 ofthe following year. The court declared daughterI.C. a dependentchild, and placed her in the custody of her mother. The unusual feature was that the court, because of the jurisdictional finding, made these determinations: “The Court finds that the Agency hassustained its burden of proof and will order that the father be continued to be removed from the family home until further order of the court. [§] . . . [[] There is clear and convincing evidence that the child must be removed from the physical custody of the father . . . based upon the following. The child has been sexually abusedor is at substantial risk of abuse by a parent . . . and there is no [other] reasonable meansofprotecting the child.” Alberto appeals, contendingthat both the jurisdictional and the dispositional findings are without the support of substantial evidence. Alberto further contendsthat the lengthy period between the jurisdictional and the dispositional hearings was excessive, unjustified, and contrary to section 352. We conclude these contentions are without merit, and affirm. The most notable feature of this opinion is the somewhat novel application of Jn re Lucero L. (2000) 22 Cal.4th 1227 (Lucero), where our Supreme Court held that juvenile court jurisdiction could be validly asserted when the sole evidence wasthe uncorroborated hearsay statement of a minor who was legally incompetentto testify. In Lucero, the minor’s hearsay statement of parental molestation was containedin the case worker’s report, which was allowedas evidence by section 355 becauseit had “ ‘special indicia ofreliability’ ” which made the minor’s “ ‘truthfulness. . . so clear from the surrounding circumstancesthat the test of cross-examination would be of marginal utility.’ ” (Ud. at pp. 1246, 1249.) Obviously, the “ ‘test of cross-examination’ ” does notrefer to the minor, who is by definition incapable for being put to cross-examination. Rather,it refers to the totality of evidence concerning the “ ‘surrounding circumstances’ ” that may establish the 2 An older brother was also a subject of the dependency,but the allegations concerning him were dismissedat the dispositional hearing, and he doesnot figure on this appeal. truthfulness of the minor’s hearsay statement. Here, the hearsay statement was not only foundin the caseworker’s report, it was also contained in the video recording o f the minorbeing interviewed, which formed the basis for the caseworker’s report. This was a circumstance we deem significant, because in viewing it the juvenile court was exercising its powerto judge credibility, a power which is accorded the utmost respect by a reviewing court. We concludethat the juvenile court’s decision to receive evidence of the minor’s statement—both in the form of words in the caseworker’s report and the recording—is supported by substantial evidence and thus properly served as the basis for asserting the jurisdiction of the juvenile court over the minoras a dependentchild. THE APPEAL WILL NOT BE DISMISSED The Agency responds that we need not address the merits of any of Alberto’s contentions because they are all “non-justiciable.” The Agency argues: “Here, the c ourt found the subdivision (d) allegation as to both parents true . . . and sustained jurisdict ion. The mother has not appealed. In dependency cases,it is well settled that a jurisdictional finding good against one parentis good against both. The minoris a dependentif the actions of either parent bring him within oneofthe statutory definitions of a depende nt. [Citations.] [{]] Thus, whether the jurisdictional findings as to the father are supported by sufficient evidence does notaffect the juvenile court’s jurisdiction. The juvenile court has dependencyoverI.C. Father’s challenge to jurisdiction is not justiciable. As s uch, father’s appeal in this regard should be dismissed.” The Agency takes the same p osition regarding the claim that section 352 was ignored. In In re LA. (2011) 201 Cal.App.4th 1484 (7.4.), our colleagues in Division Three provided a more thorough explanation of the basis for dismissing a parent’s depende ncy appeal: “It is a fundamentalprinciple of appellate practice that an appeal will not be entertained unlessit presents a justiciable issue. [Citation.] Thejustification for this doctrine, which in general terms requires an appeal to concern a present, con crete, and genuine dispute as to which the court can grant effective relief, is well explained by Wright and Miller’s hombookof federal practice: ‘The central perceptionis that cou rts should not render decisions absent a genuineneedto resolve a real dispute. Un necessary decisions dissipate judicial energies better conservedforlitigants who havea real need for official assistance. As to the parties themselves, courts should not underta ke the role of helpful counselors . . . . Defendants, moreover, should not be forced to bear the burdens oflitigation without substantial justification. . . . Perhaps more im portantly, decisions involve lawmaking. Courts worry that unnecessary lawmaking sh ould be avoided, both as a matter of defining the proper role of the judiciary in societ y and as a matter of reducing the risk that prematurelitigation will lead to ill-advised a djudication.’ [Citation.] “The many aspects ofthe justiciability doctrine in California were summari zed in Wilson v. L. A. County Civil Service Com. (1952) 112 Cal.App.2d 450: ‘ “ A judicial tribunal ordinarily may consider and determine only an existing controvers y, and not a moot question or abstract proposition.. .. [A]s a generalrule it is n ot within the function of the court to act upon or decide a moot question or speculative, theoretica l or abstract question or proposition, or a purely academic question, or to give an advis ory opinion on such a question or proposition. . . .” ’ [Citation.] An important requireme nt for justiciability is the availability of ‘effective’ relief—thatis, the prospect o f a remedy that can have a practical, tangible impact on the parties’ conductor legal status. * “ * “I t is this court’s duty ‘ “to decide actual controversies by a judgment which c an becarried into effect, and not to give opinions upon moot questions or abstract p ropositions, or to declare principles or rules of law which cannot affect the matter in issu e in the case before it.”’”’”’ [Citations.] When the court cannot grant effective r elief to the parties to an appeal, the appeal must be dismissed. [Citation.]” (1.A., supra, 2 01 Cal.App.4th at pp. 1489-1490.) Our Division Four colleagues also said this: “On this appeal, Father asks u s to review the evidentiary support only for the juvenile court’s jurisdictional findings involving his conduct. Because he does not challenge the jurisdictional f indings involving Mother’s drug abuse, however, any decision we might render on the allegations involving Father will not result in a reversal of the court’s order assert ing jurisdiction. The juvenile court will still be entitled to assert jurisdiction over the minor on the basis of the unchallenged allegations. Further, the court will still be permitted to exercise personal jurisdiction over Father and adjudicate his parental rights, if any, since that jurisdiction is derivative of the court’s jurisdiction over the minorandis unrelated to Father’s role in creating the conditions justifying the court’s assertion of dependency jurisdiction. & 66 “Under these circumstances, the issues Father’s appeal raises are ‘ “abstract or academic questions of law”’ [citation], since we cannot render any relief to Father that would have a practical, tangible impacton his position in the dependency proceeding. Even if we found no adequate evidentiary support for the juvenile court’s findings with respect to his conduct, we would not reverse the court’s jurisdictional and dispositional orders nor vacate the court’s assertion of personal jurisdiction over his parentalrights .” (LA., supra, 201 Cal-App.4th at p. 1492.) However, dismissal is not mandatory; the reviewing court has discretion to rea ch the merits. (I.A., supra, 201 Cal.App.4th at p. 1493.) And speakingto the particulars of that discretion, one Court of Appeal stated: “[WJe generally will exercise our discretio n and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or futu re dependencyproceedings[citations]; or (3) ‘could have other consequencesfor [the appellant], beyondjurisdiction’ [citation].” (In re Drake M. (2012) 211 Cal.App.4th 75 4, 762-763.) Jurisdiction in L.A. was asserted because the juvenile court concluded that both parents had failed to protect and provide for the infant minor, who thus came within subdivision (b) of section 300. It is one thing to pass on examining the evidence of a non-appealing parent’s substance abuse. Itis something else entirely to deny review to a parent accusedof sexually abusing his own daughter. There is perhapsno greater stigm a. (See BlancaP. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752 [“Few crimes carry as much . . . social opprobrium as child molestation’’].) Thecollateral consequence s could be significant. (See Jn re Quentin H. (2014) 230 Cal.App.4th 608, 6 13.) Moreover, the jurisdictional finding effectively served as the basis for part of the dispositional order, whichin plain effect directed Alberto to live apart from his children. Evenifjuvenile jurisdiction remains proper, reversal of the dispositional order would allow Alberto to live in the same home with his daughter, even if she remains a dependent. This is hardly an academic interest to any parent. For each ofthese reasons, the appeal will not be dismissed andthe merits of Alberto’s contentions will be addressed. THERE WAS NO PREJUDICIAL VIOLATION OF SECTION 352 “Continuances are disfavored in dependency cases.” (Jn re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) This policy is reflected in section 352, which provides: “(a) Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing underthis chapter beyond thetime limit within which the hearing is otherwise required to be held, providedthat no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the c ourt shall give substantial weight to a minor’s need for prompt resolution of his or her cust ody status, the need to provide children with stable environments, and the damage to a mi nor of prolonged temporary placements. “Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presentedat the hea ring on the motion for the continuance. Neither a stipulation between counselnorthe convenie nce of the parties is in and ofitself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in andofitself as good cause. Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court. “In order to obtain a motion for a continuanceof the hearing, written notice shall be filed at least two court daysprior to the date set for hearing, together with affidavi ts or declarations detailing specific facts showing that a continuanceis necessary,unless the court for good causeentertains an oral motion for continuance. “(b) Notwithstandingany other provision oflaw, if a minor has been removed from the parents’ or guardians’ custody, no continuance shall be granted that would result in the dispositional hearing, held pursuant to Section 361, being completed longer than 60 daysafter the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance. The facts supporting such a continuanceshall be entered upon the minutes of the court. In no eventshall the court grant continuancesthat would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319. “(c) In any case in which the parent, guardian, or minoris represented by counsel and no objection is made to an order continuing any such hearing beyond the time limit within which the hearing is otherwise required to be held, the absence of such an objection shall be deemed a consentto the continuance. The consent does not affect the requirements of subdivision(a).” Here, the hearing held pursuantto Section 319—theinitial petition hearing where the minor was detained—was on September 17, 2012. The jurisdictional hearing commenced on December 3. Both parents were present. After watching a tape ofI.C. being interviewed aboutthe alleged molestation, counsel for the mother advised the court that she—counsel—did not feel well. With the approval of all counsel present, the court continued the matter for further hearings on January 14 and January 25 of 2013. At the January 14 hearing, a question arose as to whether this and the January 25 hearings were for a combined jurisdictional and dispositional resolution (as Alberto’s counsel believed), or just the jurisdictional phase. The court ruled that the two proceedings would be bifurcated. Atthe January 25 hearing, there were two references to section 352. Thefirst arose in the context ofAlberto’s counsel stating to the court her (counsel’s) “request . . . that she have a conversation with my client to see how we can do better on visitation.” LC.’s counsel, after ascertaining “the date of the detention in this case” was “9-17,” reminded the court that “So we are right up against the six-month deadline.” Counse l for Alberto responded: “Judge, these deadlines are important, but also, my client’s Sixt h Amendmentrights are very important on a caseofthis magnitude.” The second reference also arose in the contextof visitation. As the hearing was winding down, counsel for the Agency told the court, “Your Honor, we’ve had this case open sinc e September,” to which Alberto’s counsel replied, “Why does that matter?” There followed a brief discussion concerning changing the visitation schedule, with Alberto ’s counsel“just asking that we do the supervisedvisits with somebody not from the Agency.” Whenthe court told assembled counsel “we have five minutes,” there wa s no protest when “the next hearing” wasset for March 14. It was at 4:30 on March 14, and Alberto’s adult daughter was testifying, that counsel for Alberto asked “if she’s available tomorrow.” Whenthe court indica ted “we will resume tomorrow,” Alberto’s counsel did not object. The March 15 resumption ofthe jurisdictional hearing opened with the court inquiring of Alberto’s counsel, “did you have another witness to call?” Counsel did not, whereupon the court heard extensive argument whetherthe allegations of the petition should be sustained. At the conclusion of argument, the court took the matter u nder submission. The court and parties were discussing the next court date when cou nsel for the minor and the Agency expressed concern about the passage of time. As counse l for Agencyput it: “My concern is if, as Mr. Waring[counselfor I.C.] stated, a ssuming innuendo[sic] that we take jurisdiction, I don’t want to continue it another month to do a dispo hearing, and then call witnesses and go to multiple hearings, and then we’ll be nine, ten months out to detention.” Alberto’s counselreplied: “It’s certainly a burden o n the parties, as well, but I can’t truncate the procedure and be prepared to do what I ne ed to do to protect my client and do a good job if you don’t know whatthe ruling is on jurisdiction.” The court then set March 27 for a jurisdictional decision, and April 15 “for possible disposition hearing.” On March 27,after sustaining someofthe allegations in the Agency’s petition (see fn. 2, ante), the juvenile court inquired “Havethe parties had any discussions about a date for disposition?” Alberto’s counsel replied: “I think we already have a date, was reminded by your goodcourt officer,thatit’s April 15th.” On April 15, the court opened the hearing by stating: “{I]t’s my understan ding that the parties need to select a new date for the contested [dispositional ] hearing in this matter. Have you discussed that already?” Albert’s counsel respondedth at “all of us discussed that... and... [w]e can’t do right now.” With counsel’s app roval, the court set April 22 and “just as a safe measure, we'll also set May 13th. . . fo r continued disposition hearing.” The judge whohad presided uptothis point was unavailable on April 22. Before another judicial officer, and without objection from any counsel, it was agreed that the next hearing would be on May 13, with a “second session” if needed for June 24. Thedispositional hearing commenced on May 13. During the course of the hearing the court admitted certain reports from the Agencyin evidence , took judicial notice of the testimonyof certain witnesses at the jurisdictional hearing , and commenced hearing live testimony. No one objected when the matter was contin ued to June 24. Further sessions of the dispositional hearing were held on June 24, July 10, August 16, August 20, October 21, November 4, December 2, December 20, of 2013, and January 16, January 22, January 29, and February 5 of 2014. An exam ination ofthe hundreds ofpages ofreporter’s transcripts for these dates establishes t hat at no pointdid counsel for Alberto mention section 352. On the contrary, the reco rd showsthat counsel mounted a vigorous defensethat involved engaging experts, seeking to have discovery reopened, and updating reports already on file. Indeed, virtually all o f the November and December 2013 hearings were devotedto the testimony of Alberto’s e xperts. The remaining hearings were occupied byfinal argument. It appears that, apart from the solo references by counsel for I.C. and the Agency, the requirements of section 352 were almost entirely honored in the b reachbyall concerned. However, “[s]ection 352 does not supply a penalty for non compliance,” and a dispositional order will be reversed only if prejudice can be shown from the unauthorized delay. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523. ) The reason > E R R O R S t o t e wefind the error nonprejudicial is the largely the same for requiring a c ontemporaneous objectionat trial. “In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court. [Citation.] ‘The rule that contentions not r aised in thetrial court will not be considered on appeal is founded on considerations of fairn ess to the court and opposing party, and on the practical need for an orderly and eff icient administration ofthe law.’ [Citations.] Otherwise, opposing parties andtri al courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources ‘to address purported err ors which could havebeen rectified in the trial court had an objection been made.’ {Cita tion.] In addition, it is inappropriate to allow any party to ‘trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesceif favorable and avoid if unfavorable.’ [Citation.]” (n re S. C. (2006) 138 Cal.App.4th 396, 406.) This sort ofbehavior is condemnedas “bait and switch on appeal” (Kashmiri v. Regents of University of California (2007) 156 Cal.App .4th 809, 830) and “ “ “intolerable.” >» Un re SB. (2005) 130 Cal-App.4th 1148, 1159.) It was not Alberto who raised section 352 to the juvenile court. It was in f act counsel for the minor andthen the Agency whobroached the subjects of de lay and, by implication, section 352. It was in response to the former’s caution that A lberto’s counsel insisted his client’s “Sixth Amendmentrights” were more important. Had Alberto actually complied with the requirements of section 352 and sought a continuance, he might very well have been granted onein order to securethe testimony o f the experts he eventually presented at the dispositional hearing. Butit is one thin g for Alberto,as is his perfect right, to seek to have the dispositional order reversed becauseit lacks the support of substantial evidence. Butit is not acceptable to seek the sameresu lt on the basis of statutory noncompliance for which he bears considerable responsib ility. SUBSTANTIAL EVIDENCE SUPPORTS THE FINDINGS Establishedcriteria govern Alberto’s claimsthat the juvenile court’s crucial findings madeatthe jurisdictional and dispositional hearings do not have the support of 10 substantial evidence. “ ‘In reviewing a challengeto the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determineif substantial evidence, contradicted or uncontradicted, supports them. “In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and wenote that issues of fact and credibility are the province of the trial court.” [Citation.] “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ‘ “[T]he [appellate] court must review the whole recordin the light most favorable to the judgment below to determine whetherit discloses substantial evidence __. such that a reasonabletrier of fact could find [that the order is appropriate].”’ ” (In re LJ. (2013) 56 Cal.4th 766, 773.) The Jurisdictional Finding The problem of a minor child’s accusation of parental molestation has vexed the courts and the Legislature. All concerned appreciate the tension between the need for protecting children and the fear of accepting an unfounded accusation. The problem is most acute when,like here, there is no direct or tangible proof that any molestation occurred. Eventually, following adoption ofsection 355, whichitself followed In re Cindy L. (1997) 17 Cal.4th 15 (Cindy L.), our Supreme Court stated the following principles: “ ‘The spontaneity of the declarations lend[s] credibility to the exclamations of a hearsay declarant who might be otherwise incompetent, due to minority or other valid reasons,to testify at trial.” [Citation.] . . . [T]he fact of the child’s incompetencetotestify does not prevent a court from findingthat the various circumstances surrounding the statement— not only its spontaneity, but also the precociousness of the child’s knowledge of sexual matters, the lack of motive to lie, and other factors”! . . . lead to the conclusion that the 3 « «The child here was of a very young agesuchthatit is unlikely that the accusation was fabricated or the product of imagination. The statement accusing [the] father of molestation was spontaneousrather than the result of suggestive or leading questioning. 11 7” statementbears special indicia ofreliability and is therefore admissible. ... . (Lucero, supra, 22 Cal.4th at p. 1246.) Corroboration is not constitutionally required, bu t the court “emphasize[d] the importance ofjudicial court scrutiny of the statements of young children whoare both legally incompetent and insulated from cross-examina tion.... [T]he courtmayrely exclusively on these out-of-court statements only ‘if the d eclarant’s truthfulness is so clear from the surrounding circumstancesthat the test of cross- examination would be of marginal utility... .’” (dd. at p. 1249.) Quoting from its analysis in Cindy L., supra, 17 Cal.4th 15, 29-30, whi ch was based on the United States Supreme Court decision in Idahov. Wright (1990) 497 U.S. 805, the Lucero court held: “ ‘The nonexhaustive list of factors that t he United States Supreme Court hascited as relevant to the reliability of hearsay statements m ade by child witnesses in sexual abusecases are (1) spontaneity and constant repetition; ( 2) the mental state of the declarant; (3) use of terminology unexpected ofa child of a similar age; and (4) lack of motive to fabricate.’ ” (Lucero, supra, 22 Cal.4th 1227, 1239.) Later in its opinion the court reiterated that “the factors bearing on a statement’sreli ability are not limited to those specifically enumerated in Cindy L. or Idaho v. Wright—a ny factor bearing onreliability may be considered.” (Id. at p. 1250.) The Lucero court also reiterated: “We must uphold the [juvenile] court’s [jurisdictional] findings if they are supported by substantial evidence. [Ci tation.] The decision ofthe juvenile court, if correct, will be upheld even if the stated reasons for the decision are erroneousor incomplete.” (Lucero, supra, 22 Cal.4th 12 27, 1249-1250.) Independent evidence was consistent with the statement. The statement w as made not once but several times, and various recitations were consistent. The wor ding of the statement both in its Spanish terminology and its use of infantile de scriptive words indicate no coaching .... Other adult males lived in the same household, but no accusation was made against them, which indicates a lack of indiscriminat e or random accusations. Finally there appeared no motive for Carmen to lie or exagg erate in her statements: The evidence wasthat she loved her father, played with him, and apparently, did not become disaffected from him because of his sexual acts with her.’ ” (Cindy L., supra, 17 Cal.4th 15, 24, quoting Jn re Carmen O. (1994) 28 Cal.A pp.4th 908, 921.) 12 Theprinciples outlined in Cindy L. and Lucero were clearly in the juvenile court’s mind whenit madeits decision at the jurisdictional hearing. Because of the obvious attention which the court gave to that decision, it merits quotation in full: | “This is a very difficult case because the evidence comes from a three-year-old child, whoat times, wasvery clear in her statements about what happened, andat other times was very unclear, and at times very confusing about the statements that she makes concerning whatshe alleges[sic] her father did to her. “Essentially, all the Court has to go on in this case is the hearsay statements ofa three-year-old minor. ... There are no witnessesto the events she describes. The only persons presenton the date ofthe incident she describes were her and her father. “Under Welfare and Institutions Code Section 355, subsection (c)(1)(B), the Supreme Court has ruledthat the hearsay statements of the minor underthe age of 12 are admissible and can be used by the Juvenile Court to establish jurisdictionifthe statements have someindiciaofreliability and are found by the Court to notbe the product of fraud, deceit, or undue influence. In other words, if the Court finds that the time, content and the circumstances of the statementprovide a sufficient indicia of reliability, they can be usedasa basis for the Court in taking jurisdiction of a [dependency] matter. “In both In re Cindy and In re Lucero, the Court provided some guidelines as to the factors that can be used to determinethereliability of the statements of a minor under the age of 12. Thosefactors includethe spontaneity in which those statements are made, the consistency in which the statements are made,the lack of prompting on the part of any party, andthe lack of a motivetolie. “In this particular case, in trying to reach a decision, the Court has reviewed the evidence, [to] find what facts and circumstances support a conclusion that the statements made by a minor regarding the actions of her father are reliable, and what supports a conclusionthat they are not reliable, what supports reliability. The Court believes that when the minor madethe statement to her mother that ‘Daddy put penis on me,’ this was 4 statementthat came out of the blue. It was completely spontaneous. It was not a 13 product of the prompting on the part of the mother. The mother was caught completely off guard by the statementrelating to the actions of the father. “At the time the minor madethe statement to the mother they were not in the middle of the discussion of what occurred in July or any other matters of a sexual nature. “When she made—whenthe minor made the sameallegations shortly thereafter to the staff at the day care center, again, the statements were completely spontaneous. “She has consistently repeated the same core allegations to various people: Her mother, the day care center staff, and the Calico staff.) “In fact, on the Calico tape, she depicted the incident with greatdetail, using gestures, handsigns, words, and actions, as were noted in the police report. She repeats the details throughout the 40 minutesor so ofthe interview. “She was not prompted by any adults that she talked to. She was not prompted by her mother. She was not prompted bythe day care staff, nor was she prompted by the Calico interviewers. “And the Court can find no evidence that she has a motive to lie about the statements that she made. “What supports unreliability: Her very confusing statements about the train and the flowerasit relates to the father. It’s very difficult to follow her thought process in relating the train and the flower to her father. It leads one to believe that maybe she’s having somesort of flashback to the July encounter with the eight-year-old. “But of course, the difficulty in assessing this is that there’s no credible evidence that would support the conclusion that she was experiencing some flashback to the July incidentor that there was some psychological event that was—that was leading her to recall the events of July and project those events on the father. “Anotherpiece of evidence that one could concludeleads to the unreliability of her statementsis that she made statements during the course of her Calico interview that 4 CALICOis an acronym for the Child Abuse Listening, Interviewing and Coordination Center. 14 both herstepsister, RJ, was in the bed with her and her father, and twoother g irls, that they were all naked, and the father was wanting to do bad things to them,to each one of them. These statements are not believable, and in fact, were denied by RJ. “Her statement on the Calico tape that she had an encounter with the father on the couch at Calico was not correctandit’s unreliable. “Andthere’s this possibility, and the theory that somehow or another she’s recounting and having a flashback to the July incident with the eight-year-old, some how or another that’s being projected on the father. All of that could lead oneto believe th at the statements about the father and father putting his penis on her are unreliable. “So there’s supporting evidence on both sides. There’s evidence that supports reliability of her statements, and there’s evidence that supports a conclusion that he r statements are unreliable. “But the Court finds the evidence that supports the reliability more compelling. The Court does not subscribe to the theory that the minoris having a flashback to the July incident andis projecting that incident onto the father. “There’s several distinctions between the July incident and the statement made by the minor regarding the September encounter with the father. For example, in re viewing the police reports, the July incident—in the July incident, the minor never used t he word penis to describe her experience with the eight-year-old. Although the mother testifi ed that the word penis was a word that wasused in the home before the July incident , the minordid not say that the eight-year-old had usedhis penis. She only referred t o a train being used. And according to the observations of her brother, a toy train w as used in that incident. “In the Septemberincident, although she talked about a train and she talked about a flower, she was very clear in her statement that, ‘Daddyput his penis on me.’ “She did not refer to anyone other than the father, she did not mention the e ight- year-old, and she did not mention any other male in the house, including her brother, when she madethese statementsinitially to her mother. 15 “In the July incident, both the mother and the brother were at home. In her Calico statements, she was very clear that the encounter with her father occurred while her mother was at work and while her brother was at school. It’s a very different scenario than the scenario in the July incident. “The morning after she told her mother what had happened, she didn’t want her mother to go to work, apparently not wanting to be alone with the father at that time. “And an additional, at the Calico interview, she stated that what her father did to her hurt, and she indicated that during the course of the interview,it hurt when she made certain movements. “So to this Court, reviewing all the evidence that’s been presented, the core allegations of the minor have remainedconsistent, they have remained spontaneous throughoutthe recounting ofthis incident, and the Court can find no motive on her part to lie about this. The Court can find no credible evidence that there is or was a psychological process that was involved here that caused the minor to somehow misstate what had happenedto her in July with whatshe claimsherfather did to her. The Court can find no evidence of any fraud or any deceit or any undue influence. “Andtherefore, in this, what the Court finds to be a very difficult case, the Court will sustain the allegations andfind true by a preponderanceofthe evidence that the allegationsofthe petition . . . are true... . And so the Court will take jurisdiction of this matter.”” > The sustained allegations read as follows: “D-1. The minor . . . has been sexually molested by her father, while living[at] the homeof the motherand father in that: [{] a. On more than once occasion, [the minor] has spontaneously stated to others and to her mother, ‘Daddy puthis penis on me.’ [{] b. [The minor] has pointed to her vaginal area and complainedthat it hurts. [{] c. [The minor] states that her father put foreign objects in her vagina, including a ‘flower,’ a ‘train’ and that ‘did not feel good.” [{] d. [The minor] states that her father will take off her clothes and he will take off his clothes and lay on her bed with her, and kiss her in the mouth. [§] e. [The minor] states that her father kisses her vagina when she is in her brother[’s] . . . bed. [§] f. [The minor] states that she watched a movie where a boy kissesa girl and a girl kisses a girl, and they were not wearing clothes. 16 As the juvenile court implicitly noted,I. C. did nottestify, and the only available evidence from her was the hearsay statements she made that were recountedbyothers, or that were preservedon the recording ofI. C.’s interview by Calico staff that was viewed by the court. In her openingbrief, Alberto’s counsel does a thorough job ofdissecting the weaknesses and inconsistenciesof I. C.’s statements, with the aim of tying the accusations,not to Alberto, but to the eight-year-old child of a neighbor. But the ineluctable reality is that the juvenile court determined that those statements were credible on the issue of Alberto behaving in a sexually inappropriate manner. And, to judge from the comments just quoted, that determination was clearly based in large part on the court’s opinion ofwhat was seen onthe videotape. Such a credibility determination qualifies as a legitimate consideration, one of the non-enumerated factors “bearing onreliability” permitted by Lucero. Thatis the significant difference between the juvenile court’s decision in Lucero and the one here. The Supreme Court framedthe issue for review as follows: “[W]e consider whether the hearsay statements contained in a social study of a minor whois the subject of a section 300 hearing ... may be admitted andrelied on . . . if such statements fail to measureup to the standards ofreliability prescribed in Cindy L.” (Lucero, supra, 22 Cal.4th 1227, 1231.) It appears that there was a videotape interview of the victim in Lucero but the only mentionofit in the opinionis that it was seen by the expert witnesses whotestified at the jurisdictional hearing. (Id. at pp. 1235-1236 (“Psychologist Ricardo Weinstein, for the parents . . . view[ed] the videotaped interview between Lucero and Officer Ramirez”; “Psychologist Constance Dalenbergtestified for the County [{] . .. [T] [having] . . . watched the videotaped interview of Lucero”].) In other words, there is nothing to indicate it was seen by the juvenile court in Lucero. By contrast, here the ({] ... [{] D-3. The mother does notbelieve that the father has sexually molested the minor... .” 17 videotape was seen bythe juvenile court, and,as will be seen, figured prominently in the court’s decision to assert jurisdiction. Lucero carried forward from Cindy L.its approval that a trial court could “find{] that ‘the time, content and circumstancesofthe statementprovidesufficient indicia of reliability,’ ” also known as “ ‘special indicia ofreliability.’ ” (Lucero, supra, 22 Cal.4th at pp. 1246-1248.) The “time, content and circumstances”is virtually the same language used in Evidence Code section 1360, which exempts from the hearsay rule in criminal trials statements made by a child underthe age of 12 describing “any act of child abuse or neglect.”® The application of Evidence Codesection 1360 in Peoplev. Eccleston (2001) 6 The relevant language of Evidence Code section 1360is subdivision (a), which provides: “In a criminal prosecution where the victim is a minor, a statement made by the victim when underthe age of 12 describing any act of child abuse or neglect performedwith or onthe child by another . . . is not made inadmissible by the hearsay rule if all of the following apply: [{] (1) The statementis not otherwise admissible by statute or court rule. [§] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia ofreliability. [{] (3) The child either: [{] (A) Testifies at the proceedings. [{] (B) Is unavailable as a witness, in which case the statement may be admitted only if the re is evidence ofthe child abuse or neglect that corroborates the statement made by the child.” Evidence Code section 355 appears to use the words “reliability” and credibility ” interchangeably. (See Evid. Code, § 355, subds. (c)(1)(B) [statement “shall not be admissible if the objecting party establishes that the statementis unreliable because it wa s the productof fraud, deceit, or undue influence”], (d) [Evid. Code, § 355 “shall n ot be construed to limit the right of a party to . . . introduce admissible evidence relevant to t he weight of the hearsay evidence or the credibility of the hearsay declarant.”].) Lucero appears to reflect the Supreme Court’s established practiceoftreating the concepts of “reliability” and “credibility” as more or less synonymous. (See, e.g., People v. Dykes (2009) 46 Cal.4th 731, 779 [“the testimony was relevant to Monda’scredibility and reliability as a witness”]; People v. Salcido (2008) 44 Cal.4th 93, 107 [‘‘That testimony was relevantto the credibility and reliability of various witnesses”]; People v. Tewksbury (1976) 15 Cal.3d 953, 967 [“an attack on the credibility of a witnessis also a challengeto thereliability of his testimony”]; cf. CALCRIM No.105 [“In evaluating a witness’s testimony, you mayconsider anything that reasonably tends to prove or disprove the truth or accuracy ofthat testimony.”].) This court has taken the position that “Ta]ttempting to framethe issues as oneof ‘reliability’ is really no more than a challenge to witness credibility.” (People v. Barnes (2013) 216 Cal.App.4th 1508, 1520 and authorities cited; cf. Foster v. California (1969) 394 U.S. 440, 443, fn. 2 [““The reli ability 18 89 Cal.App.4th 436is particularly illustrative. It also involved a videotape of an interview whose admission was sharply contested at a pretrial hearing and which was viewedbythetrial court before makingits ruling that the tape could be played to the jury. (Id. at pp. 440, 441.) The reviewing court in Eccleston was conducting an independent review because the constitutional right of confrontation was at issue in a criminal proceeding. (See People v. Eccleston, supra, 89 Cal.App.4th 436, 445-446,citing Lilly v. Virginia (1999) 527 U.S. 116, 136.) Nevertheless,it also reviewed the videotape of the interview (People v. Eccleston, supra,at p. 440, fn. 2) on the way to upholdingthetrial court’s dec ision to allow admission. This is not a criminal case, and Alberto makes no claim of constitutional violation. He doesnot assert that the juvenile court misapplied the correct legal standard, only that the juvenile court’s ruling to rely on I. C.’s Calico statement is not supported by substantial evidence. In addressing Alberto’s claim, we cannotexercise the far greater powers of independent review. As already shown,our limited powers do not extend to credibility determinations or reweighing the evidence. But we do not believe the videotapeis to be ignored, or reduced to nothing more than the source of statements in the caseworker’s report. We do not believe Lucero putit off-limits, particularly wh en the videotapeis the original, and far more detailed, source of information for the juven ile court.’ The obvious analogue is the widespread use of police interview/i nterrogation of properly admitted eyewitness identification, like the credibility of other parts of the prosecution’s case is a matter for the jury”’].) 7 A pair of examples will suffice on this point. The transcript of the Calico in terview has I.C. stating that Alberto “put penis on me.” When the interviewer asks “Wh ere on you?” the transcript has the answer as “Here (indicating).” But the tape unmist akably showsI.C. spreadingher legs, putting single fingers from both hands together, a nd then making a thrusting motion at her crotch area. Thechild tells the interviewer t hat her father did this “five times” (pointing her right index finger in and out), andit felt “not good”(again indicating at her crotch area) And whenthe child recounts that “h e didn’t listen to me when I say ‘stop it’ . . . because he can’t do that to touch me here (indicating.) ... Don’t do that ... That’s mine... leave my vagina [pronounc ed “va- 19 videotapesthat are routinely shown tojuries. (Cf. People v. Avila (2006) 38 Cal.4th 491, 592 (“hearing Rojas’s manner of speaking in the police interviews might have ass isted the jury in determining credibility”].) It is clear from numerous comments made during its thoughtful and comprehensive ruling that the juvenile court was indeed using the videotape as the so urce of its conclusions, including somethat favored Alberto, who has never contestedit s admission in evidence. Equally clearly, the court was accepting some utterances by LC. during the Calico interview as significant and morereliable than others. Such discrimination was undoubtedly includedin its powers to evaluate the evidence, t he same powerexercised byanytrier of fact in any context viewing a recording or depicti on, and the exercise of which is conclusive for purposesof this appeal. (In re I.J., su pra, 56 Cal.4th 766, 773; In re Megan S. (2002) 104 Cal.App.4th 247, 251; see P eople v. Mayfield (1997) 14 Cal.4th 668, 748 (“the videotape bore directly on the cr edibility of defendant’s testimony”].) Equally clear is that the court weighed the evidence on the crucial point(“the Court finds the evidence that supports the reliability m ore compelling”). That too is beyond our power to revisit. (In re L.J., supra, at p. 773 [‘ ‘ “We donot reweigh the evidence”’ 1.) “However,” Alberto argues,“it is important to remember that in renderingit s decision, the Supreme Court in Lucero L.stated that the questions of admissibil ity versus substantiality were separate but different. ([Lucero], supra, 22 Cal.4th at p. 1244.) In this instance, father did not argue against the admissibility of I. C.’s stateme nts at the [jurisdictional] hearing but rather questioned whether the statements by t hemselves reached the level of substantial evidence to support the jurisdictional finding s. In Lucero L. and Cindy L., other evidence existed to support the jurisdictional findings, ” whereas here “no evidence was presentedto bolster or lend credenceto I. C.’s alle gations.” geena”] alone ... I said don’t do that ... If you do that then [you’re] go ing to be in trouble ... Then he didn’t—he didn’t leave mealonestill . . . he stil l bothers me,” the child’s voice high andagitated. 20 Weshall not assume that Alberto is making an attempt to impose a corroboration requirementthat our Supreme Court expressly declined.* (See Lucero, supra, 22 Cal.4th at p. 1249 [“the court may rely exclusively on .. . out-of-court statements,”italics added].) We can only assumethat Alberto does not agree with the juvenile court’s determinationthat I.C.’s statements did bear sufficient indicia of reliability to satisfy 8 Still, some corroboration was present in the form ofthe child’s fear at being left alone with Alberto, a point mentioned by the juvenile court. Our dissenting colleague believes wehave discovered corroboration only by bootstrapping the minor’s statements. Notso. This is the mother’s testimony: “Q. Now,. .. after she told you the night before about her father, she asked you not to leave ber and go to work, right? “A J asked her to repeat what she told me the night before, and she did ask me not to go to work. [1 --- (1 “Q. If you went to work that morningandleft her at home, who would she have been home with? “A. She would have been homewith her father. “Q. And anybody else? “A. If someone cameover, but no. “Q. You weren’t expecting anybody to comeover,right? “A. No.” “Q. So the day after your daughter . . . said that her father had touched her inappropriately, was part of the reason you took her to school that day was so that she... wouldn’t be alone with your husband? “A. I couldn’t know,so yes.” Theinference of the daughter’s fear of being left with Alberto thus comes, not from the daughter’s hearsay and incompetenttestimony, but from the mother’s testimony about her—the mother’s— reaction. It was the mother who believed her daughter was afraid to be left alone with her father. It was the mother who acted onthat perceived fear by not leaving her daughter homealone with Alberto. These are reasonable inferences which we must accept were drawn bythe juvenile court, and which must be respected here, particularly as they involve the weighing andcredibility of the mother’s testimony. (In re I.J., supra, 56 Cal.4th 766, 773.) And those inferences are circumstantial evidence, and corroboration of the daughter’s hearsay statement. The mother’s testimony, and her actions, corroborate her daughter’s fear, and the implicit reason for that fear. (See In re B. D. (2007) 156 Cal.App.4th 975, 984 (“corroborating evidenceis that which supports a logical and reasonable inference that the act described in the hearsay statement occurred”], 986 [‘It would be reasonable to infer from this evidence that B.D. was afraid of his mother. This fear could corroborate” evidence of abuse]; cf. People v. Riccardi (2012) 54 Cal.4th 758, 822 [person’s fear corroborated by subsequent conduct].) 21 Lucero and hopes we would reach the opposite conclusion. But that is merely arguing how someofthe evidence should be treated, and which parts of I.C.’s Calico statement should carry greater weight.’ Such an approach cannotprevail on a substantial evidence appeal. Wedo not denythe validity of the juvenile court terming this “a very difficult case.” But the difficulty was addressedto that court, not to this court of review. (See James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021 [“The Court of Appealis not a secondtrier of fact . . .”].) The issue here is not whether we 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. (See In re Laura F. (1983) 33 Cal.3d 826, 833 [“{O]ur task is not . . . to express an independent judgment thereon but merely to decide whether there is sufficient evidence to support the findings of the trial court.”].) The juvenile court took particular painsto state its reasoning as to why it found I.C.’s evidencereliable according to the Lucero and Cindy L. criteria. Given the scrupulousness with which the juvenile court evaluated the pros and consof the hearsay statements, there is no basis on this record for overturning the juvenile court’s jurisdictional finding. The Dispositional Finding “A dependentchild shall not be taken from the physical custody ofhis or her parents . . . with whomthechild resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence .. . [that]... [{] (1) Thereis or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minorif the minor were returned home,andthere are no reasonable means by which the minor’s physical health can be protected without removing the minorfrom the parent’s . . . physical custody. The fact that a minor has been adjudicated a dependentchild . . . shall constitute prima facie evidence that the ° We note that Alberto does not challenge the court’s findings that I. C.’s statements werenot the result of prompting, and she had no motiveto fabricate her statements. 22 minor cannotsafely beleft in the physical custody of the parent .... The court shall consider . . . the following: [{] (A) The option of removing an offending parent from the home.” (§ 361, subd. (c).) The court is also to consider whether“[t}he minor .. . has been sexually abused, by a parent, . . . and there are no reasonable means by which the minorcan be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from . . . her parent... .” (dd., subd. (c)(4).) Although the burden of proofis different, the reviewing court will still apply the substantial evidence standard. (In re Noe F. (2013) 213 Cal.App.4th 358, 367; In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) Again,the juvenile court’s decision merits full quotation: “(T]he issue before the Court today for disposition is whether or not the father should be removed from the homefor the minor’s safety and protection. In other words, should . . . the minor be removed from the physical custody of the father? “The Agency has the burdenofproofin this matter. The Agency must establish by clear and convincing evidencethat there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minorif the father were allowed to return homeandifthere are no reasonable means by which to protect the safety of the minor. “Also, the Agency would havethe burden ofproving the minor was sexually abused by the parent and there are no reasonable means by which the minor can be protected from further sexual abuseorthere’s a substantial risk of sexual abuse without removing the minor from the parent, andin this case, allowing the father to return home. “During the course of this hearing the parties presented experts to testify on the risk of the father sexually abusing the minorifhe returned home. The Agency presented Dr. Abbott, andthe father presented mainly Dr. Lask and Dr. Dempsey. “The Court’s reviewed the testimony of these witnesses. As to Dr. Lask, the Court concludesthatit can give no weightto his testimony, mainly becauseofhis method of administering one ofthe tests during his assessmentofMr. C[.], that virtually all the other experts testified . .. was completely inappropriate and unorthodox. And that was 23 specifically allowing the father to take a test home,to do the test on his own and complete it at home. Both Dr. Dempsey and Dr. Abbott testified that this was completely inappropriate. So the Court is going to give very little weight, if any at all, to Dr. Lask’s testimony and his assessment. “As to Dr. Dempsey, the Court reviews her assessment and testimony in a more positive and favorablelight, though the Court cannot accept her conclusions. The problem that the Court has with her assessmentis that as Dr. Abbott testified the method that she used for this assessment was unreliable, and the Court agrees that the method that she used wasn’t a reliable method of assessment. “Andalso, the . . . static and dynamicrisk factors that she [i.e., Dr. Dempsey] considered in her assessment were essentially part ofMr. C[.]’s makeup. These factors existed at the time that she did her assessment. These factors existed at the time that the sexual abuse occurred in this case. Based on her conclusion that there was a very low risk of recidivism, it would stand to reason that the risk of the initial offense was very low, yet the Court found thatit did, in fact, occur. Therefore, the Court cannot rely upon her assessmentofthe low risk that Mr. C[.] would pose, if he were to return home. “Based on the evidence in this case, the Court believes that the minoris at risk if the father returns home. “Two important factors that the Court considered were the fact that the mother does not believe that the sexual abuse occurred, and given her disbelief, the Court believes that she would not beable to protect the minor from future sexual abuse by the father. Andalso, the mother’s safety plan, in the Court’s opinion,is not feasible. Given the requirements of everydaylife, the needs of the family, there are going to be times where the minor wouldbeleft alone with the father. | “The mother’s plan of having a relative from Marin County, and social worker friend, available on a moment’s notice,is just not workable andis just notfeasible. “With the father in the home, he has access to the minor. And with that, the Court finds that there is or there would be a substantial risk of further sexual abuseifthe father were to return homeatthis time. And so the Court finds that the Agency hassustainedits 24 burden ofproof in this matter and will order that the father continue to be removed from the family home until further order of the Court.” “In determining whether a child may be safely maintained in the parent’s physical custody, the [juvenile] court may consider the parent’s past conduct and current circumstances... .” (In re Maria R. (2010) 185 Cal.App.4th 48, 70.) This seems to be precisely what the court here did. Although Alberto naturally does not acceptits truth, the court could proceed on the basis that the molestation was established. (§ 361, subd. (c).) Moreover, as shown in the precedingdiscussion, the juvenile court’s negative evaluation of Alberto’s experts, Drs. Lask and Dempsey, is conclusive here, and Alberto cannotrehabilitate their testimony to impeach thatjurisdictional finding. By contrast, Dr. Abbott, accepted as an expert in “risk assessment in sexual abuse cases,” testified that a person who refuses therapy and counseling—as Alberto did—is eight times morelikely to re-offend. The juvenile court also had beforeit in evidence the report of the Agency’s social worker for the case. (§ 358, subd. (b) [“the court shall receive in evidence the social study of the child made bythe social worker”].) In her report, the social worker concluded that the minor wouldbeatrisk if Alberto were allowed to return home, particularly so if left alone with the minor, which occurred because the mother worked. This was the samesocial worker whotheparties stipulated at the jurisdiction hearing could testify as an expert at risk assessment, and whohad then testified that father should not be allowed back into the family home. Shetestified at the dispositional hearing that her recommendationto prevent Alberto from returning home wasbased in large part on the mother’s inability to protect the minor: “In the past the mother has used the father for child care . . . , has left [the minor] home alone with the father, and I don’t see where that has changed. Or would changeat this point” while “the mother has a... regular 9 to 5” job, “doesn’t think anything happened with the father,” and that the minor “should be around her father.” Asked point blank, “Do youbelieve that there’s a safe way to have the father return hometodayin the same household as the mother and [the minor]?,” the L a p e Ge ra ge ts , ta c social worker responded, “No,” because “I can’t assure that the one parentis going to 25 protect the child from the other parent.” And again: “Do you see any way for the father to return hometoday andstill be able to protect [the minor] on a day-to-daybasis?” The social worker’s answer was “No,I do not.” The social worker’s testimony andherreport, each byitself, constitute substantial evidence. (Evid. Code, § 411; In re Marriage ofChakko (2004) 115 Cal.App.4th 104, 109.) When Dr. Abbott’s testimonyis added, the record contains ample substantial evidenceto support the juvenile court’s dispositional finding that the minor’s safety required separation from Alberto. (§ 361, subd. (c)(4); In re LJ., supra, 56 Cal.4th 766, 773; In re MeganS., supra, 104 Cal.App.4th 247, 251.) The dispositional orderis affirmed. 26 Richman,Acting P.J. I concur: Miller, J. Al41143 27 Stewart, J., concurring and dissenting. I dissent. I do not agree with the majority’s conclusion that substantial evidence supports the juvenile court’s exercise ofjurisdiction andits dispositional order, issued after the court found I.C. had been sexually abused by her father Alberto. This finding wasbased solely on the uncorroborated, confused and unchallenged hearsay statements of L.C., a truth incompetent three-year-old child.’ The majority reflexively defers to the juvenile court decision without regard to the constitutional standard prescribed by our Supreme Court in Jn re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.). Asa result, it affirms a decision made on an unclear record that unjustly separated a father from his wife and children to the detriment of them all. I would reverse. Before I.C. madeher hearsay statements about Alberto, she and her mother (mother) had been discussing sexual abuseas a result of a recent incident in which LC. suffered such abuse at the handsofan older child. I.-C. then claimed Alberto abused her in the same manner. The court found her hearsay statements were suspectin significant respects but, in its view, more credible than not. The majority defers wholesale to the court’s modest conclusion. In doingso,it abdicates this court’s responsibility under Lucero L. to review the whole record for substantial evidenceofI.C.’s clear truthfulness. Asthe juvenile court’s own explanation ofits ruling indicates, there is not substantial evidence to support such finding—the evidence is anything butclear. At the heart ofthis case is the tension between the key objective in dependency proceedingsofprotecting children from abuse on the one hand and, on the other, the also important goals of ensuring that parents are not unjustly deprived of their liberty interests in raising their children, that children are not unnecessarily deprived of the benefits of growing up with two parents in an intact family and that a parent is not falsely labeled a ' 1 concur with the majority that Alberto’s challenges to the juvenile court’s orders are justiciable and that there was no prejudicial violation of section 352. “child molester” with all the vilification and humiliation such a label brings. This tension is particularly high whenthe evidence involves a young child’s hearsay statements. Twice our high court has grappled with what due process requires before the hearsay of a child too young to distinguish between truth and fiction can be considered andrelied on in a juvenile dependencycase. In re Cindy L. (1997) 17 Cal.4th 15 (Cindy L.) held due process required both corroboration and particularized indicia ofreliability before such evidence could be admitted and relied upon. After the Legislature amended the law to make such statements in a social study admissible in certain circumstances (Welf. & Inst. Code § 355), our high court again addressed the requirements of due process in Lucero L. Recognizing the crucial role of cross-examination in assessing a witness’s credibility, the Supreme Court held that a juvenile court could rely solely on a child’s uncorroborated hearsay statements only if the surrounding circumstancesestablishedthat the child’s truthfulnessis “ ‘so clear’ ” that “ ‘the test of cross-examination would be of marginal utility.” ” (Lucero L., supra, 22 Cal. 4th at p. 1249.) The juvenile court’s own concemsaboutthe reliability of I.C.’s hearsay statements—all ofwhich were uncorroborated” —demonstratesthat there is not 2 The majority incorrectly asserts I.C.’s statements were corroborated by her “fear at being left alone with Alberto.” (Maj. Opn., pp. 20-21, fn. 8.) It claimsthis corroboration exists based on mother’s testimony that the morning after I.C. said her father had touched her inappropriately, I.C. asked mother not to go to work and that part of the reason mother took her to school wasso I.C. would notbe left alone with Alberto. From this, the majority asserts, it can be reasonably inferred that I.C. was afraid to be left alone with Alberto, from which it can be reasonablyinferred that I.C. was afraid because of Alberto’s sexual abuse. (/bid.) I disagree. This tortured effort to find corroboration distorts mother’s testimony, which was simply that mother did not wantto leave I.C. alone with father because of what I.C. had told her the night before. It also ignores that motherfurthertestified that I.C. “did not say she was scared ofherfather. She said she didn’t want me to go to work.” (Italics added.) Moreover, while the majority claimsitis relying on mother’s testimony rather than I.C.’s statements for corroboration, the portion of mother’s testimony that the majority relies upon ultimately rests on whatI.C.told mother about father’s abuse. The majority does not explain how a truth incompetent hearsay declarant can corroborate her own statements. substantial evidence that meets the Lucero L. mandate. The juvenile court foundthatthis was a “very difficult” case, that there was significant evidencethatI.C.’s hearsay statements were both reliable and unreliable, but that their reliability was “more compelling.” (See Maj. Opn., pp. 13, 15.) The court also recognizedthis case involves unusual circumstances and that someof I.C.’s hearsay statements were plainly inaccurate. Alberto’s conduct, as I.C. described it, was strikingly similar to that of the boy who had previously abused her, including that Alberto penetrated her vagina with a toytrain just as the boy had done. In her video-recorded interview at the Child Abuse Listening, Interviewing and Coordination Center (CALICO), during which the interviewer neither challenged I.C.’s contentions nor asked her aboutthe prior abuse, I.C. could not and did not separate fact from fiction. She wove a variety of fantastical stories into her account about Alberto, such as that he molested her in the CALICOinterview room itself and also molested her and three young women together in her brother’s bed, and repeatedly changed how and when he abused her. During the 24-hour period in which she madeher statements, I.C. also spoke inconsistently and recanted her claim of abuseto her mother. Thejuvenile court ultimately determined that I.C.’s hearsay was more credible than not, based almostentirely on the video-recorded CALICO interview; it did not find that her truthfulness wasclear nor could it have. Its explanation ofits decision leads to the ineluctable conclusion that cross-examination—hadit been possible—would have been very useful in determining I.C.’s truthfulness. Alberto did not object to the admission of any ofI.C.’s hearsay statements and I therefore will not address their admissibility. But even if they were all admissible, the court erred in finding Alberto had sexually abused I.C. based on her uncorroborated hearsay alone. Anddespite a thorough investigation by police and social workers, there was no other evidence to support that finding. Mycolleagues quote the juvenile court’s explanation ofits decision in its entirety but analyze noneofit, and do not even bother to discuss any of the evidence submitted 3 below. Instead, they give “conclusive effect” to the juvenile court’s equivocal view of LC.’s credibility, as if this were a routine affirmanceofa trial court’s determination that a truth competenttestifying witness who was subject to cross-examination was credible. It is not. Hearsay and witnesstestimony are two different things. The majority conflates them and by doing so avoids engaging in the careful appellate review ofthe juvenile court’s decision to admit and rely on I.C.’s hearsay statements as required by LuceroL. Instead of engaging with the record, the majority simply concludes,“[g]iven the scrupulousness with which the juvenile court evaluated the pros and consofthe hearsay statements, there is no basis on this record for overturning the juvenile court’s jurisdictional finding.” (Maj. Opn., p. 22.) This is a statement of admiration for the court’s thoughtfulness in whichI join, butit is not a judicial review for substantial evidence of I.C.’s clear truthfulness. As one of my colleagues has written in another context, “To rubberstamp tooreadily . . . is to abdicate the judicial function entrusted to the court....” (In re Victor L. (2010) 182 Cal.App.4th 902, 931.) Unfortunately, I believe that is precisely what the majority has done here. I do not view faithful adherence to the Lucero L. mandate as a routine ortrivial matter. A child’s welfare, her family’s future and her parent’s reputation can depend on whethera juvenile court finds sexual abuse basedsolely on hearsay statements of a child whois unableto separate fact from fiction. As our late colleague from the Fourth Appellate District, Justice Sills, explained: “The hearing on a contestedpetition alleging child sexual abuse is . . . extraordinarily important. It is not the sort ofthing to be rushed, or taken routinely. Allegations ofchild molestation are serious; they merit more than a rubber stamp. With the exception ofdeath penalty cases, it is hard to imagine an area ofthe law wherethere is a greater need forreliable findings by the trier of fact. The consequences of being wrong—oneither side—are too great.” (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1754.) The majority fails to heed this sage caution today. Its reflexive affirmanceofthe juvenile court’s erroneousdecision in disregard of 4 the Lucero L. mandate marks a family forever with the stigma of a factually unsupported finding thatits father sexually abused his young daughter and contravenes our fundamentalprinciples of due process. It is a grave injustice. RELEVANT BACKGROUND The juvenile court madeits decision to rely solely on I.C.’s uncorroborated statements based on the evidence presentedat the jurisdictional hearing. This included the jurisdiction/disposition report and addendum of the Alameda County Social Services Agency (Agency), the video-recorded CALICOinterviewsof LC. and Julian, and testimony of mother, I.C.’s older half sister, RJ, and an Agency child welfare worker, Sylvina Cooper. Becausetheseare not discussed in the majority opinion, I review them now in considerable detail. I. The Jurisdiction/Disposition Report The Agency’s jurisdiction/disposition report, filed October 1, 2012, discussed the previous sexual abuseof I.C. by a third party and the allegations about Alberto. A. The Previous Sexual AbuseofI.C. According to the Agency, on July 2, 2012, I.-C. and her five-year-old brother, Julian, were playing in their bedroom with an eight-year-old neighbor boy, whom the record indicates was named Oscar. Mother went to check on the children after about 15 minutes because they had gotten quiet. The Agency summarized andattachedtoits report a Fremont Police Departmentpolice report of the incident. The Agency’s summary states that when mother entered the bedroom,the children separated from each other. Upon mother’s questioning, the boy said, “ ‘We were kissing.’ ” I.C. “stated that the boy removed her shoes[,] socks, pants, and underwear. The boy then inserted a wooden train into her vagina. [Mother] asked[I.C.] if the boy did anything else and she said he kissed her. [Mother] asked[I.C.] if the boy put any part of his body inside of her and she replied ‘yes’. [Mother] believed the boy put his penis inside of [I.C.’s] vagina.” LC.told the police the boy had kissed her on her mouth, removed her clothing and put a train inside her vaginaand that her vagina hurt. The boy admitted only to kissing her on the mouth. CPS opened a referral for sexual abuse, but its investigation was “inconclusive.” Thepolice investigation was closed as “unsubstantiated.” I.C. and Julian did not receive counseling, but mother said she did for herself. She and Alberto said that I.C. “became aggressive towards an eleven year-old male cousin visiting the home, by pursuing him and wanting to kiss him,” and mentioned the abuse to her babysitter. The Agencyalso reported that it received a phone message from mother on September4, 2012,that the boy (Oscar) had pushed Julian on a playground, although he was required to stay 150 feet from her children and family. B. The Allegations Against Alberto The Agency’s report repeated the petition allegations regarding Alberto. These included that he had sexually molested I.C., who on more than one occasion “spontaneously stated to others and to her mother, ‘Daddyput his penis on me.’ ”IC. had pointed to her vaginal area and complainedthatit hurt, and said her father put foreign objects in her vagina, including a flower anda train, took off their clothes and kissed her on the mouth and the vagina while lying in Julian’s bed, and that she watched a movie in which boys kissed boys andgirls kissedgirls, all of them while naked. The Agencyattachedto its report another Fremont Police Departmentreport by an officer who wentto I.C.’s day care center on September 12, 2012,to investigate a possible child molestation. It was reported that 1.C. had stated at the center “that her dad was madat her and hehit the wall. Now there was a hole in the wall.” When I.C. was asked again ten minutes later what she had said, she then said, “ “Daddy took his penis and put it on me. Mommyis upset and I wentto the doctor. [am fine.’ ” She also said she hurt a little. The teacher told the police that I.C. had earlier told her that her father had hurt her with his penis and that she was going to the doctorlater. 6 Alberto denied he had sexually molested I.C., and motherstated she did not believe he had done so. Both parents believed that her allegations stemmed from her previous sexual abuse by the neighbor boy (Oscar). Police also spoke with I.C.’s babysitter, the girlfriend of Alberto’s son. She said Alberto was aware of allegations that he had touched I.C. inappropriately and was upset and concerned. She was aware of the previous sexual abuse by a neighbor boy and was not aware of anything else inappropriate that had occurred; the children had never mentioned seeing any inappropriate movies, magazinesorliterature that were sexual in nature; Alberto had neversaid or done anything inappropriate to her; and she did not believe Alberto would touch I.C. inappropriately. C. Forensic Investigation The police report indicated a physician conducted a sexual assault examination of I.C. on September 12, 2012, and did not see any visible trauma. That evening, the police searched the family home. A crime scene investigator (CSI) photographed the scene and found no signs of semenor other biological fluids in the children’s bedroom or the laundry area, and certain items were seized. No forensic evidence was submittedat the jurisdiction hearing in support ofthe petition allegations. D. The Agency’s Recommendations The Agency recommendedthat I.-C. and Julian be declared dependents of the court and placed in mother’s home, a restraining order remain in place prohibiting Alberto from residing with the children, the children engage in individual therapy and the parents have individual counseling regarding sexual molestation and parenting skills. Il. Mother’s Testimony at the Jurisdictional Hearing Mother testified at the jurisdictional hearing about what occurred on July 2, 2012, consistent with the Agency’s account. Shetestified that a toy train shown to herat the hearing was the one she saw on the bed the day of the mcident. There had been only one toy train in the house, which had been keptin the children’s bedroom. After the incident, mother keptit in the trunk of her car. Mother had looked into obtaining therapy for I.C. Kaiser told her they did not have therapy for children so young and suggested she contact a social worker who had been assigned to their case. She and her husband both called the social worker but did not hear back. She called again and reached the social worker, who told mother there was no therapy available that would be paid for by the State. In the two months after the incident, mother, Julian and I.C. had many discussions about it. Amongother things, they discussed what occurred during the incident, the children’s feelings about the incident, the fact that no one had a rightto touch their bodies, that there were good touches and bad touches, what places are appropriate places to touch and that nobodyhad the right to hurt the children. Alberto participated in some of these discussions. The children did not see Oscar again until Julian started school on or about September 7, 2012. When mother and I.C. were dropping Julian off there, they all saw Oscar attending the same school and subsequently talked about it. A couple of dayslater, Julian told motherin front of I.C. that Oscar had pushed him down theslide at school, followed him into the lunchroom,called him a loser and destroyed his lunch. Mother called the school and spoke with the principal, asking her to keep Oscar away from Julian. The family talked about Oscar attending Julian’s schoolall the following weekend. A few dayslater, on a Tuesday evening, mother was putting the children to bed whenI.C.said, “My dad put penis on me.” Julian said, “No, that’s what Oscar did to you.” Mother asked for details. I.C. repeated, “Daddy put his penis on me.” Mother thought I.C. also said it happened in her room on the lower bunk bed. I.-C.did nottell mother when it had happened nor say anything about being hurt. Mother tried to get LC. to tell her what happened,“butit didn’t seem like it all went together and made very much sense.” Mothertold I.C., “ ‘Nobody has the right to touch your body. There’s good touchesand bad touches. . . . If I touch youlikethis,this is a good touch. And nobody has the right to hurt you.’ ” Mother testified that she probably told I-C. thatif what she said about her father wastrue,“ ‘then your dad would bein trouble.’ ” The following morning, Wednesday,I.C. told mother she did not wantherto go to work. Mother asked, “ ‘Do you remember what you told melast night?’ ” IC. said “ Yes’ ” and then told mother, “ ‘I was just kidding.’ ” Mother was alarmed at whatI.C. had said. She had to go to work, so she decided to take LC. to pre-school, which I.C.loved, until she could figure out why LC. was saying these things. I.C. normally attended pre-school on Tuesdays and Thursdaysonly, spending the other weekdays with Alberto from 9:00 a.m. until 2:30 p.m. Before taking LC. to school, mother woke up Alberto and told him what LC. had said. He responded “ <*That’s crazy.’ ” That afternoon, mother reached a Fremont Police Department detective who had left a messagefor her. The detective said I.C. had told pre-schoolstaff that “ “Dad put his penis on me’ ” and had been broughtto a police station. That Tuesday evening and the following morning werethe only times LC. ever talked with mother about Alberto doing sexualthingsto her. II. L.C.’s CALICO Interview Ampara Ozuna of CALICOinterviewed I-C. on September12, 2012.3 Immediately after I.C. agreedtotell the truth and notlie, she said she had engaged in manyactivities that day, including watching a movie, taking a nap with Bianca, going to San Francisco with her mother and going to the park with her father. 3 1.C.’s interview was video-recorded, played at the jurisdictional hearing and is in the record in video and transcript formats. In response to Ozuna’s further questions, I.C. said she had told “Karen” at her schoolthat daythat “daddy put penis on me”and “[t]hat he put train on me andthen he put a flower on me yesterday.” After referring to a circle, she said he “do that on the bed. Hedothat here.” She pointed to the cushions she was sitting on andsaid, “In this bed.” Shealso saidit “was on the—Julian’s bed,” that “Daddy—dadput a tissue on me—he— he put a—he put—helike—like he put Julian’s—hmm,my necklace on me yesterday.” LC. climbed on the cushions next to her, openedher legs and said “he dothis to... to my vagina.” Twice, she repeated “he do this” and openedherlegs, and then said, “he do this and I was here today and he give me a Hi-Five.” Shesaid her father “{pjut a penis and then flower andthen the train,” took off her shoes, pants,shirt, underwear andsocks and kissed her on her mouth when she was on the bed. Shesaid she told him to stop “because he can’t do that to touch mehere,” putting her hand on her crotch as shesaid this, but he didn’t listen to her. Asked what her father was doing when she said “stopit,” she said, “Don’t do that. Okay. That’s—that’s mine. If leave my vaginaalone, just leave it. Okay. Then he didn’t—hedidn’t leave me alonestill,” and “The still—hestill does—still bothers—hestill bothers me.” She said she told him to stop as she was laying down on her back with her legs open and that he was lying on the bed with his clothes off “like this,” laying against the cushions and opening her legs. She also said that he “knocked the wall,” and “[h]e smacked the wall like this.” She made slapping motions with her hand andsaid, “Hedoit five timesandI say ‘stopit.’ ” Askedif any part of her father’s body touched anypart of hers, I.C. said, “Yeah. Heput penis on me,”andthat he “[p]ut penis on me, and he put penis on me, he put penis on me yesterday,” pointing to her crotch to describe where. She said that he touched her crotch five times, that she told him to stop, that he did not listen to her, and that it did not feel good. Asked if her father put his penis inside her,I.C. said, “Put penis on me.” Asked if anything cameout ofher father’s penis, I.C. said “Hmm,yeah. ... [{] It’s ducky—... [{] It’s a—it’s a train.” “He kept it—comesout and he puts—andputs 10 up like this and... .” When asked, “What puts up?,” she said “the train,” and that “[t]hat hurts me when he do that.” Asked what the train looked like, she pushed her hand along the ground as if pushing a toy and appeared to draw twocircles with something on top of them. Askedif the penis is the same thingas a train, she said, “Yeah.” I.C. also said that a train came outofthe train and that the train was red and the color of the tan paper in front of her. Questioned further, I.C. said when herfather did not listen to her, she got up and ran awayto a car in her house, feeling sad “{b]Jecause he did stuff to me.” Earlier, she had said Julian was at school and her mother was at work when her father molested her. Nowshesaid, “{[M]y mommysleeping and hers not here and I was by myself.” Then I.C. “saw her knocking the door” and “[hJer was picking me up and Daddy was not here and Daddy was somewhereelse.” She told her mother to “ ‘stop it’ and... [{] I said, Daddy,stop it, that’s not—that’s not yours, that’s mine. Anyone[sic] can touch my vagina.” Also, “I told her ‘stop it.” And her listen to me.” Her mother said, “ ‘[S]top.’ ‘[OJh my daddyis going to be in all so muchtrouble.’ ” I.-C. said her father was going to jail and hadtold the police, “ ‘I promise, I won’t do it again.’ ” Askedifher father did these things to her at any other time, I.-C. said both that he did only one time and other times. Asked what happened anothertime, she said, “He put, hmm, anothertrain on me. [§...[{]] Okay. A train—a train—a penis and a flower and—and that’s it.” Asked if it happened anywhere besides Julian’s room,LC. said “Hmm, it was here in my house and here.” Asked what she meantby “here,” I.C. insisted emphatically and repeatedly that her father did these things “[i]n this bed,” and gestured to the cushionsby her. Askedif anything else had happened with her father that made her uncomfortable, LC.said, “Just the truth” and that it was “[t]he penis, the train, the train, and the flower.” Askedif she had ever seen her father do that to anybodyelse, I.C. responded,“[h]e do that to RJ,” whom sheidentified as her friend and a “big” girl. Asked what she saw her 11 father do to RJ, she said, “Put penis in the flower andthe train andtrain and—and—that’s it.” She also said, “Daddy take off his clothes and her—then he kiss him (sic).” She went on to say that her father was on the bed with a naked RJ, that she, I.C., was on the bed, that she, I.C., was on a different bed, and that they were all on Julian’s bed with her babysitter and her babysitter’s sister. Asked why they were all on the bed, she said, “Because we want to do that and we say ‘no,’ so he didn’t stop it and then wesay ‘no.’ Then he didn’t stop it.” Asked whathe did not stop, she said, “Our vaginas. He didn’t do it.... [§] He didn’t—he want to do—take off our clothes and he want to do it.” Asked what he wanted to do, she said, “the bad things” and “{t]he train, the train and train—andthe flower and the penis.” After a break, Ozuna asked I.C.ifher father put his penis on the outside orinside of her. I.C. now said, “The inside,” and that it hurt. As requested, IC. marked on a drawing whereher father had kissed her, identifying her hair, her hand, her body, her vagina and herleg. She said she had clothes on,but that her father “take off my clothes” “in the bean bag”and that his mouth touched her vagina. Asked how she felt when he kissed her vagina, she said “Not good.” She now saidit happenedin Julian’s bed four times, a “long time” ago. Asked if she’d ever seen “adult movies,” IC. said she had, identified “Rapunzel” and “{a] boy anda girl,” and said, “The boy and girl kiss together. ... [§] One boy kiss a boy and one boy—andonegirl kiss a girl.” She saw that at her house, and they didn’t have clothes. Someone knocked on her door, heard her, and ran away. It was “like a ghost” and she did not know whoit was. Asked who put the movie on, she said “It was like RJ or Elmer or mommyorJulian or Kevin,” she did not know and“[i]t was just like ghost.” Finally, Ozuna asked I.C. whyher father slapped the wall. LC. said, “He’s going to be in jail forever. He’s going to be in big trouble. AndI don’t know whyhe did do 12 that.” He was “furgirated (phonetic)” or “fustradated.” She learned that he was going to jail “forever” at school or from RJ. Iv. Julian’s CALICO Interview Julian, I.C.’s five-year-old brother, was interviewed by a CALICOintervieweron September 13, 2012.* Heinitially said his sister was makingup lie about their dad, was just confused about it and was lying about Oscar, who did not like Julian anymore. [.C. had not said anything to him abouttheir father. His mother told him I.C. said that “Daddy touchedI.C. on her private parts” and that I.C. was confused about their father. Later, Julian said IC. told him the day before that her father was “hurting her”in Julian’s bed, “touching her on the private parts,” and that it happened “[m]ore than one time”and “felt uncomfortable.” Julian never saw his father do anythingto I.C. or hurt her. Hesaid his sister “doesn’t like my dad,” and that “mama”told him that. No one had ever touched Julian anywhere on his body wherethey are not supposedto touch or on his “private parts.” He had never seen or been shown an adult movie. Nothing had happened with his father that made him feel uncomfortable. V. RJ’s Testimony at the Jurisdictional Hearing A.C., called “RJ,” is I.C.’s half-sister and Alberto’s 21-year-old daughter. RJ testified that she lived with Alberto until her parents broke up when she was about nine and for three years when she wasin high school, and that she spent time in his homeafter he remarried. Alberto had never touched RJ inappropriately. RJ had never been in bed with Alberto, I.C. and the babysitter, and Alberto had never inappropriately touched everyone’s vagina. RJ had never seen Alberto touch I.C. inappropriately and had no * Julian’s interview wasalso playedat the jurisdictional hearing andis in the record in video andtranscript formats. 13 concerns that he would do so, nor had she everseen I.C.recoil from, run from, or seem afraid of Alberto. RJ alsotestified that she had looked after I.-C. in January 2013 for three days when mother wentout of town. I.C. “kept touching herself down there” and told RJ it was because Oscar had hurt her. VI. Sylvina Cooper’s Testimonyat the Jurisdictional Hearing An Agencychild welfare worker who worked on the case, Sylvina Cooper, testified, including as an expert witnessin risk assessment for child sexual abuse. She said I.C. never mentioned Oscar to her and had mentionedher father only once, at the end of a supervised visit with him, when she asked Cooper “if her father could come home.” Since the Agency returned the children to mother, there were no safety incidents or anything notable for Cooper to report. To Cooper, I.C. presented as being “very, very intelligent and very, very mature, beyondthe ageofthree,” had “‘a very high level of language development”anddid not appear to have problems communicating. Cooperbelieved that most of I.C.’s statements in the CALICOinterview about what Alberto did to her were “credible,” that I.C. knew the difference between what was true andfalse, and that I.C. had not confused Alberto with someone else. Cooper noted that IC. had directly told her mother, school personnel at her day care center, child welfare worker Alma Villa and the CALICOstaff that she had been sexually molested by her father. The consistencyofI.C.’s story affected Cooper’s assessment. Also, Cooper had not identified any motive that I.C. might have for making her allegations. CooperthoughtI.C. made several untrue statements in her CALICOinterview. Cooperdid not think Alberto molested I.C. with a toy train, but thoughtthe train “could be something—her wayof explaining something, like a metaphor.” Shedid not think Alberto had molested I.C. in the CALICOinterviewing room, but thought I.C. could have confused time and space at her age. She did not think others had been in the bed with 14 W D b s B e e 1.C. and her father. Also, at the interview’s end I.C. appearedto tire and it was “not unusualfor a child that age to begin to fantasize about movies, pictures, flowers.” I.C. inaccurately said that her father put his penis in her vaginafive times “the day before the interview,” but she could not be expected to know the difference between 24 and 48 hours at her age. Asked why she was“so sure”that father had molested I.C., Cooper said I.C.first told her mother rather than strangers so her story was not “tainted by people that don’t know her,” was “pretty consistent in what she told her mother in describing the body parts and showing the bodyparts verbally, in diagrams, drawing the specific bodyparts, and consistently saying that it’s her father,” and was “‘a very intelligent child” who “remember[ed] very, very specific things.” However, Cooperalso said I.C.’s claims about Alberto could have been triggered by her recent contact with her molester, Oscar. Asked why it was not a more reasonable explanation that I.C.’s first claim to mother“was simply somekind of fantasy triggered by her contact with the eight-year-old molester at school, a few days priorto the disclosure about her father[],” Cooper responded, “Honestly, I can’t speak tothat. [{] But in interviewing both parents, they say that—that the molest by the eight-year-old was discussed in the home quite a bit before the encounter, the brief encounterin September, on the day of taking the child to school.” She said it was “possible”that LC.’s claims about Alberto could be explained by her seeing Oscar at Julian’s school a few days before and that the family’s discussions could have impacted I.C.’s claims. However, she thought that wasless likely than that Alberto had actually molested I.C. because of “I.C.’s very detailed descriptions of what she said that her father did to her. Heruse of the words that he put his penis on her. That she told him this was bad, these are bad things, that she kept repeating it was bad. She put gestures. It just seemed very, very specific regarding her father.” But Cooper also indicated she had experienced cases in which allegations by young children turned out to be false and “to have been triggered 15 by somerevisitation of an earlier molestation.” Cooper confirmed that mother sought therapy for I.C. after the incident with Oscar in July 2012 but was unsuccessful, even though the Agency could provide services in such circumstances. VII. The Juvenile Court’s Jurisdiction Ruling At the conclusion of the jurisdictional hearing, the juvenile court announcedits ruling. The majority has quoted the court’s announcementin full (Maj. Opn., pp. 12-16), so I will not repeat it here. I note only that the court said that “[t]his is a very difficult case because the evidence comes from a three-year-old child who,at times, was very clear in her statements about what happened, and at other times was very unclear, and at times very confusing about the statements that she makes concerning whatshealleges her father did to her.” After citing Cindy L., supra, 17 Cal.4th 15 and Lucero L., supra, 22 Cal.4th 1227, it discussed at length evidencethat it thought suggested I.C.’s statements were both reliable and unreliable, concluding,“[s]o there’s supporting evidence on both sides,” and found that “the evidence that supports reliability [is] more compelling.” It rejected the “theory that the minor is having a flashback to the July incident andis projecting that incident onto the father” and emphasized whatit considered to beI.C.’s clarity and consistency in her repeated accounts to several people in the course of the 24 hours she spoke about what her father had done to her. Based solely on I.C.’s hearsay statements, the court found by a preponderance ofthe evidence that I.C. had been sexually molested by Alberto. DISCUSSION L The Lucero L. Mandate ofClear Truthfulness The juvenile court’s jurisdictional finding rests entirely on the uncorroborated out- of-court statements of I.C., a non-testifying three-year-old child incapable of separating fact from fiction who was never cross-examined. And not any three-year-old child, but 16 one who two months before had been sexually abused by a neighbor boy—an incident that became the subject ofmuch discussion and concern within her family—in a waythat was strikingly similar in manyparticulars to her allegations about Alberto. In assessing the sufficiency of such hearsay evidence, we are guided not only by the general standards governing substantial evidence review,but also by the specific mandate set forth by our Supreme Court in Lucero L., supra, 22 Cal.4th 1227. Lucero L., body of law that grapples with the tension between our paramount concerns with a child’s and the related case that precededit, Cindy L., supra, 17 Cal.4th 15, are part of a special welfare and a parent’s due process rights in dependency proceedings. (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1513 [in dependency proceedings, parents have the due process right to cross-examine witnesses and the preparers of agency reports submitted to the court].) This tension is particularly high when a court considers whether to admit and rely on a very young,truth incompetent child’s hearsay statements to find sexual abuse.° Their use as evidence against a parent denies the parent—and the court— of a critical means by which historically we assess a witness’s credibility: cross- examination. As our United States Supreme Court has observed, “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion ofa trial judge . . . , the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner hastraditionally been allowed to impeach, L.e., discredit, the witness.” (Davis v. Alaska (1974) 415 U.S. 308, 316,italics omitted, quoted in Jn re > Generally, 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 shown by a preponderance of the evidence that the witnessis “(1) [i]ncapable of expressing himself or herself concerning the matter so as to be understood . . . or [{] (2) [i]ncapable of understanding the duty of a witnessto tell the truth.” (Accord, People v. Lewis (2001) 26 Cal.4th 334, 360; People v. Anderson (2001) 25 Cal.4th 543, 573.) 17 Brenda M. (2008) 160 Cal.App.4th 772, 777 [father improperly precluded from cross- examining the preparer of an agencyreport as a sanction after he refusedto testify].) AsI have indicated, our Supreme Court issued Lucero L. after previously determining in Cindy L., that out-of-court statements of a young child in a dependency proceeding may be admitted andrelied upon onlyif the statements show particular indicia of reliability and are corroborated. After Cindy L., the Legislature amended Welfare and Institutions Code section 355 (section 355) to create a hearsay exception applicable to dependency proceedings for uncorroborated out-of court statements of a child under12 that are contained in a social study,* unless a party objecting to their admission establishes the statements were procured by fraud, deceit or undue influence. (§ 355, subds.(a), (c)(1)(B).) Considering this new hearsay exception, the LuceroL. court 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 for a 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.) Justice Mosk, writing a plurality opinion that was joined on different issues by concurring justices, concluded that admission of child hearsay underthecriteria established by the Legislature in section 355, whichpartially codified the court’s earlier recognition of the similar hearsay exception discussed in Cindy L., supra, 17 Cal.4th 15, did not violate due process. (Lucero L., supra, 22 Cal.4th at pp. 1243-1244.) However, the Lucero L. court noted that “ ‘admissibility and substantiality ofhearsay evidence are ° A “ ‘social study’ means any written report furnished to the juvenile court . . . by the county probation or welfare department” in a relevant dependency proceeding. (§ 355, subd. (b)(1).) The video-recorded CALICO interview itself is not a social study (see ibid.) and, therefore,it likely is governed by Cindy L. and should not have been consideredat all. Father does not raise this issue, however, so I will not discussit further. 18 different issues.’ ” (Id. at p. 1244.) It recognized there were “due process problems inherentin relying too heavily on the hearsay statements of incompetent minors to make jurisdictional findings when there has been no opportunityfor cross-examining the minor.” (Ibid., italics added.) It noted that in most other contexts,if the reliability of hearsay hasnot been established bystatute, “ ‘hearsay evidence alone “‘s insufficientto satisfy the requirement of due process of law, and mere uncorroborated hearsay doesnot constitute substantial evidence.” ’” (/d. at pp. 1244-1245.) Although section 355 created a statutory exception to the hearsay rule for minors under age 12, the court thought it “not apparent .. . why sole reliance on such hearsay statements would notraise the same due process problems as with other hearsay.” (/d. at p. 1245.) Nor did it “believe that due processis 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.” (/bid.) The court found the due process problem was “compoundedin the case of a child who has been determined to be incompetent to distinguish between truth and falsehood,” noting that “a finding of ‘truth incompetence’is a factor weighing againstthe reliability of the child’s out-of-court statement.” (Lucero L., supra, 22 Cal.4th at p. 1246.) 7 This passage showsthe fallacy of the majority’s view that Lucero L.’s reference to “the test of cross-examination” does not mean cross-examination of the minor. (Maj. Opn., pp. 2-3.) Asstated in a treatise approvingly quoted by the United Supreme Court in the case upon which LuceroL. relies, Idaho v. Wright (1990) 497 U.S. 805, “ ‘The theory ofthe hearsay rule . . . is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be broughtto light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness, so that the test of cross-examination would be a work of supererogation.’ 5 J. Wigmore, Evidence § 1420, p. 251 (J. Chadboum rev. 1974).’” (Id. at p. 819.) 19 Moreover, the court observed that in Cindy L., it had required “ ‘either corroboration or availability for cross examination,’ ” which “ ‘safeguards against the possibility that the 3099child is merely fabricating the statement.’ (/bid.) It also noted that even its decision in Cindy L. that the hearsay statements of truth incompetent minors could be “admitted as fully competent evidence was predicatedat the very least on the court making a finding that ‘the statement bears special indiciaofreliability.’ ” (bid. [quoting Cindy L., supra, 17 Cal.4th at p. 34].) With these concerns in mind, the Lucero L. court determined that corroborating evidence wasnotabsolutely required by due process before a juvenile court could rely on a truth incompetent, non-testifying child’s hearsay statements at the jurisdictional phase of a dependencyproceeding. (Lucero L., supra, 22 Cal.4th at pp. 1248-1249.)® However, the court established an exacting standard that must be met before a court may do so. It held that “section 355 notwithstanding, the out-of-court statements of a child whois subject to a jurisdictional hearing and whois disqualified as a witness because of the lack of capacity to distinguish between truth and falsehoodat the time oftestifying maynotbe relied on exclusively unless the court finds that ‘the time, content and circumstances of the statement provide sufficient indicia of reliability.’ ” (Jd. at pp. 1247-1248,italics added.) In deciding that due process requirednoless, the court emphasized theinterests at stake in a dependency case, which include “the parents’ importantliberty interest in maintaining custody of their child”—“‘an interest far more precious than any property right.’ ” (/d. at p. 1247 [citing Santosky v. Kramer (1982) 8 Justices Kennard and Brown did not opine on whether corroborating evidenceis constitutionally required. (See Lucero L., supra, 22 Cal.4th at pp. 1250-1251 (Kennard, J., joined by Brown,J., concurring).) Justices Chin and Baxter saw no due process problem with basing a jurisdictional decision solely on hearsay evidence so long as the juvenile court determines that the child witness testimony meets the substantial evidence standard. (Seeid. at pp. 1255-1257 (Chin,J., jomed by Baxter, J., concurring).) The latter two justices thus agreed with the plurality that corroboration is not constitutionally required. 20 455 U.S. 745, 758-759].) The court further acknowledged,“the risk of erroneous deprivation . . . is great, because those opposing the governmentin a section 300 hearing are critically deprived of the right to cross-examination. This risk is increased by the fact of the hearsay declarant’s legal incompetenceto testify due to an inability to distinguish between truth and falsehood, which not only makes the declarant unavailable for cross- examinationbut also detracts from the declarant’s reliability.” (bid.)’ The court emphasized “the importanceofjuvenile court scrutiny of the statements of young children whoare both legally incompetent and insulated from cross-examination.” (Jd.at p. 1249.) Quoting the United States Supreme Court, it concluded: “Atleast 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 circumstancesthat the test of cross-examination would be of marginal utility... .’ (Idaho v. Wright [1990] 497 U.S. [805,] 820.)” (bid.) The competing interests identified in Lucero L.—the safety of a child and the liberty interests of a parentin the care andraising of that child—areatthe heart ofthis case as well. So is I.C’s interest’ in being raised by two parents in an intact and loving family—asetting that is recognized as ideal but experienced by fewer and fewer children *® This holdingreflects the views of a majority of the court. (See Lucero L., supra, 22 Cal.4th at pp. 1250, 1251-1252 (Kennard, J., jommed by Brown,J., concurring).) Justices Chin and Baxter agreed that unreliable, uncorroborated hearsay alone would be insufficient to sustain a jurisdictional finding and “might also violate due process.” (/d. at p. 1253.) However, they believed that a trial court’s determination that such evidence satisfied the preponderance-of-the-evidence standard and an appellate court’s determination that there was substantial evidence to support that finding would ensure that such findings would not be based on unreliable evidence of any kind. (/d. at pp. 1252-1254 (Chin,J., joined by Baxter, J., concurring).) ‘ 1.C.’s brother, Julian,is also affected. Although the dependency proceeding was dismissed as to him, the court’s order barring Alberto from living in the family home deprived Julian as well of the opportunity to be raised by his parents together in an intact family. 21 in America today. And I would be remissif I did not mention another significant interest at stake here. While this is not a criminal case and Alberto has not been convicted of any crime, the reality is, as my colleagues acknowledge (Maj. Opn., p. 5), a finding that Alberto sexually abused his daughter carries more “social opprobrium” than almost any other act. (Blanca P. v. Superior Court, supra, 45 Cal.App.4th at p. 1752 [“Few crimes carry as much (or as much deserved) social opprobrium as child molestation. Most people would rather be accused of bank robbery.”].) Moreover, because a parent’s denial that molestation occurredis frequently used as evidence supporting removal of a child (see id. at pp. 1752-1753 [discussing the “ ‘confession dilemma’ ”}), “[i]f an injustice occurs ..., the hard fact of life is that the very innocence ofthe parent will in all likelihood render the family asunder. Andit is also irrefutable that no honorable person will want—or should have—to admit to a despicable sexual act of which he orsheis innocent.” (Jd. at p. 1754.) For these reasons, “[t]he hearing on a contested petition alleging child sexual abuseis . . . extraordinarily important” (ibid.), and we must carefully review decisionsin difficult cases like the one before us. I. The Juvenile Court Did Not Find, and There is No Substantial Evidence, That I.C.’s Truthfulness Was Clear. At the end ofthe jurisdictional hearing on March 27, 2013, the juvenile court announcedits decision to rely on I.C.’s uncorroborated out-of-court statements that Alberto sexually abused her. The court identified what it considered to be reliable and unreliable aspects of I.C.’s hearsay statements and then said, “So there’s supporting evidence on both sides. There’s evidence that supports reliability of her statements, and there’s evidence that supports a conclusion that her statements are unreliable.” It then concluded that “the evidence that supports reliability [is] more compelling” and proceededto rely solely on I.C.’s statements to sustain the petition allegations that Alberto had sexually abused her. 22 The juvenile court’s weighing essentially was a determinationthat I.C.’s hearsay statements were reliable by a preponderanceof the evidence. The broad andrelatively lenient preponderanceof the evidence standard generally governs a juvenile court’s determination of whether there is sufficient evidence to support jurisdiction. However, Lucero L. makesclear that more is required before the court may baseJurisdictional findings solely on uncorroborated hearsay statements by a young, truth incompetent, non- testifying minor such as I.C. In that circumstance, the court mustfind from the statements madeand the surrounding circumstances that the minor’struthfulnessis clear—so clear that cross-examination wouldbeoflittle use. The court did not determine that this was the case here, nor could it have. Indeed, even in applying its own, less exacting, test, the court referred to this as a “very difficult” case. I fully agree. And if the case was “very difficult” under the more-reliable-than-not standard applied by the juvenile court, I.C.’s hearsay statements cannotberelied on exclusively when examined under the more exacting test required by LuceroL.. The majority concludesthat it must affirm based on the juvenile court’s determination that LC.’s CALICO interview statements were morereliable than not, particularly because of the “scrupulousness with which the juvenile court evaluated the pros andcons ofthe hearsay statements.” (Maj. Opn., pp. 20, 22.) It contends thereis a “significant difference between the juvenile court’s decision in Lucero L. and the one here” because the court reviewed I.C.’s video-recorded CALICOinterview,while in Lucero L., there is nothing to indicate the court reviewed the victim’s videotaped interview. (/d. at pp. 17-20.) It concludesthat the court’s determination of 1C.’s credibility “was undoubtedly includedin its powers to evaluate the evidence, the same powerexercised byanytrier of fact in any context viewing a recording or depiction, and the exercise of which is conclusive for purposesof this appeal.” (Jd. at p. 20.) The majority’s analysis misconceives the LuceroL. test. It is correct that we generally do not second-guessa trial court’s views regarding the credibility of testifying 23 witnesses. 1 have no quarrel with the cases cited by the majority that involve that proposition. (See In re IJ. (2013) 56 Cal.4th 766, 773 {stating that generally “ ‘ “issues of .. . credibility are the province of thetrial court” ’ ”]; People v. Mayfield (1997) 14 Cal.4th 668, 748, overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2 [affirming the trial court’s admission of a videotape to impeach defendant’s testimony pursuant to Evidence Code section 352]; In re Megan S. (2002) 104 Cal.App.4th 247, 251 [noting that “[w]e do not pass on the credibility of witnesses” in a case that involvedlive testimony].) However, IC. was not a testifying witness; rather, she was incompetentto testify precisely because she was incapable of separating fact from fiction, and her out-of-court, unchallenged statements were the only evidence that Alberto sexually abused her. Therefore, these cases are not relevant here, nor are the two other cases cited by the majority. (See People v. Eccleston (2001) 89 Cal.App.4th 436, 440-441 [child’s hearsay statements of sexual abuse were admitted pursuant to Penal Code section 1360 where a witness testified that she interviewedthe child only after she was “convinced the victim knew the difference between truth and falsehood” and the abuser provided corroboration]; People v. Avila (2006) 38 Cal.4th 491, 592 [recorded police interview used to impeacha testifying defendant’s testimony].) I am not aware of any appellate court that has so precipitously acquiescedin trial court’s determination of a hearsay declarant’s credibility without further review. Indeed, the majority’s approachflies in the face of the extensive concerns addressed in our jurisprudence regarding a fact finder’s reliance on hearsay statements, of which Lucero L. is a part. The majority’s view that the juvenile court’s credibility determination is “conclusive”on this court has no legal basis under the circumstancesofthis case."* 1! Indeed, the juvenile court observed nothing about I.C.in the video-recorded CALICOinterview that we cannot observe ourselves, making it arguable that we should not give any deferenceto its credibility assessments from this interview and other documentary evidence. (See In re Avena (1996) 12 Cal.4th 694, 710 [raising this same issue regarding a referee’s factual findings from a hearing transcript]; see also Lilly v. 24 While I agree that the juvenile court thoughtfully evaluated the evidence, our duty nonetheless is to determineif there is substantial evidence that I.C.’s truthfulness was “ “so clear from the surrounding circumstancesthat the test of cross-examination would be of marginalutility.’ ” (Lucero L., supra, 22 Cal.4th at p. 1249.) I concludethereis not, based on my review ofthe entire record in the light most favorable to the judgment below. (See Jn re LJ., supra, 56 CalAth at p. 773.) The juvenile court acknowledged that significant aspects oftes hearsay statements about Alberto were the product of confusion, projection and/or imagination and weretherefore unreliable, but concluded there were, in its view, more compelling indicia of reliability. These indicia included that I.C.’s statement to mother that Alberto put his penis on her was “spontaneous”andclear, her statements were consistent in their “core allegations,” her statements were not prompted by any of the adults she was talking with, and there was no evidence that she had a motive to lie. The court also noted that 1.C. did not use the word penis in regard to Oscar, did not accuse any other male or mention Oscar in her statement to mother, wasclear that the incident with her father occurred while mother was at work and Julian was at school, said what her father did to her hurt, and did not want her mother to go to work the day after she first told her about her father putting his penis on her. A number ofthe court’s evidentiary conclusions are not supported by the record. L.C.’s initial statement to her mother wasnot entirely “spontaneous”in light of the family’s extensive discussions about Oscar and sexual abuse in the days just before she madeit; a numberof I.C.’s core allegations were inconsistent and confused’; the record Virginia (1999) 527 U.S. 116, 137-138 [the Supreme Court holding pre-Craw/ford that appellate courts should independently review whether a hearsay statement has “particularized guarantees of trustworthiness” in evaluating whether its admission violates the Confrontation Clause].) 2 For example, I.C. said in her CALICO interview that Alberto sexually assaulted her in the interview room itself; that he assaulted her one time, multiple times, four times, 25 indicates I.C. was familiar with words such as penis because of Oscar’s prior abuse of her and the subsequent investigation and discussionsofit; and [.C. did not consistently indicate that her father abused her when motherwas at work, saying at one pointin the CALICOinterview that her mother was sleeping. But regardless of these matters, we should reverse here for a more important reason: the court found that significant evidence indicated I.C.’s statements about Alberto were unreliable. Its finding demonstrates that no reasonable fact finder could concludethat I.C.’s truthfulness was clear—again,a finding that the court did not make, and whichits ruling indicatesit would not have madeifit had directly addressed this penultimate question.” Three aspects of the court’s decision most clearly demonstrate the court did not find I.C.’s truthfulness wasclear. First, as indicated by the court’s citation to LuceroL., it found thatI.C. wastruth incompetent.This is a key factor weighing against the reliability of her out-of-court statements. (See Lucero L., supra, 22 Cal.4th at p. 1246.) Second, the court recognized that I.C. made significant statements that were inaccurate, such as when she insisted that Alberto sexually abused her in the CALICO interview room and that he also molested her, her adult half-sister RJ, her babysitter and the babysitter’s sister together in one bed. Indeed, in her CALICOinterview,I.C. yesterday, and a long time ago;that “penis” and “train” were the same; and that a “train” came out of Alberto’s penis. She said Alberto put a penis, a flower anda train on her and on RJ, which is anything but clear. Perhaps most importantly, she told her mother the morningafterherfirst statement about Alberto’s abuse that she was “just kidding.” '3 In my view,the juvenile court, regardless ofits citation to Lucero L., erred by applying an insufficient “preponderanceofreliability” standard to I.C.’s statements when the Lucero L. mandate called for more,i.e., a determination that surrounding circumstancesindicated that she was clearly truthful. However, Alberto does not claim on appealthat the juvenile court erred as a matter of law by failing to apply the correct legal standard. Therefore, I do not address this issue further. '* T have found nothing in the record indicating 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 the case. 26 interwove her account with fantastical statements. Immediately after promisingto tell the truth, she recounted that she had engaged in numerous activities that day—such as taking a nap with her babysitter and going to the park with her father—that could not have occurred, since her mother took her in the morning from their hometo pre-school, from which I.C. was taken into custody by the police. She said she wasvisited by a ghost as she watched movies of naked boys kissing boys and girls kissing girls. She recounted that her father said to the police, “ ‘I promise, I won’t do it again,’ ” when there 1s no indication she knew of such a talk and her father consistently denied molesting her. And this is by no means an exhaustivelist of I.C.’s clearly untruthful statements. Third, the court recognized that I.C.’s account of Alberto’s actions wasstrikingly similar to Oscar’s actions in sexually abusing her just months before, and that this prior abuse was discussed at great length by the family in the weeks and even days just before I.C. made her statements about Alberto. This was certainly the case. LC. told mother that Oscar took off her shoes, pants, socks and underwear; she said in the CALICO interview that Alberto took off her shoes, pants, shirt, socks and underwear. The children told mother and the police that Oscar kissed I.C. on the mouth; I-C. said in the CALICO interview that Alberto kissed her on her mouth. Oscar’s kissing and molestation of I.-C. took place at home, in the children’s bedroom, on Julian’s bed; I.-C. said in the CALICO interview that Alberto kissed and molested her in the children’s bedroom on Julian’s bed (as well as elsewhere). Oscar put a train inside I.C.’s vagina; I.C. said in the CALICO interview that Alberto put a train on her. I.C. told police Oscar hurt her vagina; in the CALICOinterview she pointed to her vagina andsaid it hurt “just a little” because of Alberto’s abuse. I.C.’s mother took I.C. to the doctor after the incident with Oscar;I.C. said in the CALICOinterview, “Mommyis upset and I went to the doctor.” Thesestriking similarities cannot be disregarded in any evaluation ofthe record. In applying a substantial evidence standard of review, I accept the juvenile court’s conclusions that I.C. was not confusing what happened with Oscar with what she claimed 27 happened with Alberto and that there was no evidencethat she was motivatedto lie. But that does not address whether she imagined or fabricated the incident with Alberto based on what Oscar had doneto her in the same way she fabricated numerous other things in her CALICOinterview. As the Lucero L. court observed, the indicia ofreliability provide a substitute for corroboration and cross-examination whichare the usual “ ‘safeguards against the possibility that the child is merely fabricating the statement.’ ” (Lucero L., supra, 22 Cal.Ath at p. 1246.) And,as the juvenile court acknowledged, LC.’s CALICO interview was rife with imagination andstorytelling. As I have mentioned, the court referred to this as a “very difficult”case. Significantly, the plurality in Lucero L. made a similar statement in applying its mandate to the facts of that case, characterizing the question of whether the statements made by the child in that case, Lucero L., were sufficiently reliable, as “close.” (Lucero L., supra, 22 Cal.4th at p.1250.) Those indicia were far greater than any in the present case. For example, the child in Lucero L. did not make fantastical, confused or inconsistent statements, she made her accusations over monthsrather than hours, and there was credible evidence that father had sexually abused another daughter in the past. If the circumstances in Lucero L. presented a “close” call regarding Lucero L.’s truthfulness, the circumstances here do not comecloseto establishing that I.C. was clearly truthful. Unfortunately, my colleagues do not address this question. After careful consideration and thorough review ofthe entire record, I conclude that the juvenile court did not find, and that a reasonable fact finder could notfind, that I-C.’s truthfulness was so clear as to makethe test of cross-examination of marginal utility. Therefore, pursuant to Lucero L., the court erred whenit decided to rely solely on I.C.’s hearsay statements to find that Alberto had sexually abused her. This error was the basis for the court’s assertion ofjurisdiction and later disposition orders. I would reverse them onthis ground. 28 STEWART,J. In re LC. (A141143) 29 Trial Court: Alameda Superior Court Trial Judge: Honorable Willie Lott Attorney for Objector and Appellant: Louise E. Collari Attorneys for Plaintiff and Respondent: Donna Ziegler, County Counselfor the County of Alameda, Melinda Leong Capozzi, Deputy County Counsel for the County of Alameda 30 37 EXHIBIT B COURT OF APPEAL, FIRST APPELLATE DISTRICT 350 MCALLISTER STREET SAN FRANCISCO, CA 94102 DIVISION 2 In re I.C., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ALBERTOC., Objector and Appellant. A141143 Alameda County No. $J12019578 BY THECOURT: Appellant's petition for rehearing is denied. Stewart, J. would grant the petition. ~ Date: Oriel Acting P.J. PROOF OF SERVICE BY MAIL (CCP 1013a, 2015.5) I declare that: I am a resident of/employed in the county of Contra Costa, California. I am over the age of eighteen years and not a party to the within cause. My business address is 4115 Blackhawk Plaza Circle, Suite 100, Danville, CA 94506. On September14, 2015, I served the within APPELLANT FATHER’S PETITION FOR REVIEWin Jn re L.C., et al., Court of Appeal Case No. A141143 on the parties in said cause, by placing a true copy thereof 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 A.C., appellant 350 McAllister Street San Francisco, CA 94102 Clerk, Court of Appeal Superior Court of California First District Court of Appeal County of Alameda 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 Oakland, CA 94621 First District Appellate Project Anya Emerson 730 Harrison Street, Suite 201 Patrick O’Rourke San Francisco, CA 94107 1271 Washington Ave PMB 816 (Via Truefiling) San Leandro, CA 94577 I declare under penalty of perjury the foregoing is true and correct. Executed this 14th day of September, 2015,at Danville, California. LUG LU Ge & [e [aca Louise E. Collari 39