NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J1600534, J1600535)
Luis R., the presumed father of two-year-old L.G. and his infant brother I.M., appeals the disposition order entered after the juvenile court adjudicated the two young boys dependent wards of the court on multiple grounds, along with the boys' two half-sisters who are appellant's stepdaughters by marriage. Appellant (referred to hereafter as "father") challenges two findings made at the contested jurisdiction hearing: one, that he sexually abused his younger stepdaughter, who was five years old at the time, and two, that his abuse of his stepdaughter alone was sufficient to demonstrate that his sons were at substantial risk of suffering sexual abuse. (See Welf. & Inst. Code, § 300, subd. (d).) He contends the court's jurisdictional findings regarding these two issues are not supported by substantial evidence, principally because hearsay evidence of what the little girl said about the sexual abuse during a forensic interview was unreliable. Thus, he argues, both findings should be vacated, along with the related portion of the dispositional order requiring him as a component of his case plan to engage in sexual abuse counseling.
All further statutory references are to the Welfare and Institutions Code.
We decline the Agency's request that we deem the appeal non-justiciable. The reason, it says, is because other grounds on which the court asserted jurisdiction over the boys are unchallenged, and so any decision by this court on the jurisdictional findings regarding sexual abuse could not affect the juvenile court's jurisdiction over them. The jurisdictional findings that father sexually abused his stepdaughter have significant continuing consequences, however. (See In re I.C. (2018) 4 Cal.5th 869, 884, fn. 2 (I.C.) [concluding appeal was not moot].) In addition, we have discretion to consider the jurisdictional findings because they could affect the current or future dependency proceedings, and also because they "serve as the basis for dispositional orders that are also challenged on appeal," namely the order requiring that father undergo sexual abuse counseling. (In re D.P. (2015) 237 Cal.App.4th 911, 917.)
These dependency proceedings were commenced on June 1, 2016, when the Contra Costa County Bureau of Children and Family Services (the "Agency") filed petitions on behalf of the two young boys, L.G. and I.M., and their two half-sisters, seven-year-old G. and five-year-old N., alleging the children's mother had physically abused her 5-year-old daughter with a belt. L.G. was barely two years old and I.M. was less than a week old. The impetus for initiating proceedings was a report made a few days earlier to the Richmond Police Department, the day before I.M. was born, of suspected abuse of five-year-old N., which led to authorities taking the two little girls and their half-brother L.G. into emergency protective custody.
By the time of the contested jurisdiction hearing, which took place several months later, the case had greatly expanded with the petitions, as amended, alleging the boys were subject to the juvenile court's jurisdiction on several grounds. Pursuant to section 300, subdivision (b), the Agency alleged father had failed to protect the boys' half-sister N. from their mother's use of excessive physical force (count b-3) and that mother had failed to protect the boys from father who had hit the children (other than the infant) on multiple occasions as a form of physical discipline (count b-1). In addition, pursuant to section 300, subdivision (d), the Agency alleged there was a substantial risk the boys would be sexually abused because father had sexually abused their sibling on multiple occasions. The parents pled no contest to the physical abuse allegations, which the juvenile court found true, leaving only the contested sexual abuse allegations.
Under that provision, dependency jurisdiction may be exercised where a child "has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household," or where a parent or guardian "has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse." (§ 300, subd. (d).)
The Agency's suspicions of possible sexual abuse first surfaced on May 31, 2016, when an Agency social worker met with the children after they had just been removed from their parents' custody and placed in foster care. According to the social worker's account in the detention report, he asked the little girl, N., "about good and bad touches since she allegedly told [Richmond Police Department] that some man with dreadlocks at the babysitter's apartment in San Francisco has touched her approximately five times. She was able to discern between a good touch and a bad touch, but when questioned denied any bad touches." The report went on to note that the issue would be further explored in conjunction with the Richmond Police Department but that the police "did not believe there were sufficient statements to warrant a SART exam," and that "[t]here is also some confusion as mother has stated the children are not baby sat in San Francisco or elsewhere. Only [N.'s older sister, G.] is at an after school program. [N.] was set to start pre-school in August in San Francisco."
Thereafter, on August 3, 2016, San Francisco law enforcement officials conducted a forensic interview of the little girl, the results of which were reported multiple times in memos to the juvenile court, all of which were identical in substance. We quote that written account in full:
"On August 3, 2016, San Francisco County conducted a forensic interview on the child, [N.]. [Agency] Social Worker Brandy Walker attended the interview. A Court Certified Spanish Interpreter was present during the interview. Ms. Walker makes the following statement as to her observations. [¶] 'On 8/3/16 at 11:00 a.m., this worker met face-to-face with two San Francisco Detectives, District Attorney and Lilly Gamero of Victims Services at 995 Potrero Avenue San Francisco, CA 94110. Police Report #160534911. This worker introduced herself to [N.] who was accompanied by 3 Angels Children & Family Services, FFA Social Worker, Anna. [N.] is Monolingual Spanish speaking only. She said hello, smiled and started playing with her toy. The interviewer walked [N.] to the interviewing room."
The account then continued with the substance of their discussion: "The interviewer asked [N.] when she was with her mother did other people take care of her. 'Didn't you tell the police you were in San Francisco? Yes. [N.] stated 'He hit me, and he was touching me, he touched me there' pointing at her vagina. 'Who touched you?' 'My dad.' 'What is his name?' 'Luis.' 'He touched me many times.' 'Where were you at when he touched you?' 'In the house in the living room.' 'What did your dad touch you with?' 'His hand.' 'What clothes were you wearing?' 'My pajamas.' 'Did anything else happen?' 'No he just touched me a lot.' 'What color is your dad's hair?' 'Black.' 'What color is his skin?' 'White.' 'Where were you when he did that?' 'In the U.S. in my house.' 'Who was there?' 'We were alone.' 'My sister who is seven was at school every time that it happens.' 'Ho[w] old were you when it happened?' 'I was five.' 'Was there another babysitter who took care of you?' 'No.' 'What city did it happen in?' 'It happened in Richmond at my house.' 'You told me that your dad touched you, what do you call the place where he touched you?' 'Little Bread.' 'What did he do when he touched you?' 'Can you show me where he touched you?' 'She pointed at her vagina?' 'Was your clothes on or off?' 'Sometimes both.' 'He touched me with his hand in my 'Little Bread.' 'What did he do when he touched you?' 'I told him not to, but he touched me anyways.' 'He touched me on the top of my 'Little Bread. 'Show me where?' She pointed and touched her vagina. 'Was there another babysitter who took care of you?' 'No, just my dad.' "Did you tell anyone when he touched you?' 'I told the neighbor.' 'What neighbor?' 'The neighbor where I lived.' 'What part of the house did he touch you in?' 'In the living room.' 'What were you doing when he touched you?' 'I was sitting down on the couch watching T.V. and Luis touched me.' 'He touched me underneath my clothes a lot.' She then demonstrated how he touched her and where he touched her. 'Did you tell your mom?' 'No because I didn't want her to hit me again.' "
At the contested jurisdiction hearing, the Agency submitted on the basis of the report, but father's counsel objected to the written account of the little girl's statements until she had been qualified as a truth-competent witness (as counsel put it, "until and unless she is qualified . . . to know under oath the difference between right and wrong and truth and lie").
Contrary to father's characterization of the record, no hearsay objection was interposed. At the end of the hearing after the close of evidence, father's counsel merely argued that the written report of the forensic interview was a hearsay account that was insufficient to prove the jurisdictional allegations.
N. then testified briefly in chambers. All counsel were present, as well as a Spanish language interpreter, and a social worker from the Agency. There were eight adults in all, including the judge, five of them men. The juvenile court observed that N. was frightened and nervous, sometimes even shaking her head no when saying yes, and speaking so softly her court interpreter had to lean in to hear her and ask her to repeat herself. As one of the attorneys later described it, "[i]t was a terrifying situation for her . . . everybody sitting there staring at her, a bunch of men, couple of women. It was horrible, and so she clammed up."
At the outset, N.'s truth-competence was established. She confirmed she understood the difference between the truth and a lie, confirmed she understood the need to tell the truth, displayed her understanding of the difference by accurately answering questions about whether various statements were the truth or a lie, and promised to tell the truth.
After that, her testimony was halting and inconsistent. She was asked first whether she remembered talking to a lady in San Francisco about things that happened in her house with her stepfather, which prompted her to respond that her mother had hit her in the head. After repeated attempts to ask the question another way, she was asked directly, "Did Luis ever touch you in a bad way?" to which she responded, "Yeah." (Italics added.) In response to follow-up questioning, she testified that he had touched her with his hand, only in the area of her stomach and not anyplace else. She shook her head "no" when asked if she used the word "panito" for a part of her body, but then confirmed with a shake of the head, when the judge inquired, that she was feeling afraid. After some gentle words of encouragement and reassurance from the judge, questioning resumed.
When asked specifically whether father ever touched her with his hand between her legs, she testified inconsistently: "A. Only with the hands. [¶] Q. When he touched you with his hands was it between your legs? [¶] A. (Witness nods head.) [¶] . . . [¶] THE COURT: She shook her head no. [¶] . . . [¶] Q. Where did he touch you? [¶] A. I don't know. [¶] Q. Do you know the difference between a good touch and a bad touch? [¶] A. (Witness nods head.) No." (Italics added.) Counsel for the minors then stopped questioning the child, commenting, "I don't think this is productive or, frankly, putting her through this is going to accomplish much at this point."
N. was then briefly examined by counsel for the Agency. She denied that father ever touched her on her "little bread," could not recall ever telling someone he did that, testified that "panito" meant the body parts between her legs (contrary to her denial on direct examination that the term had any anatomical meaning), and answered "no" when asked whether father ever touched her there.
No further witnesses were called, and father declined to testify on the advice of counsel. After entertaining argument from counsel, the juvenile court made a number of observations on the record about N.'s demeanor and the evidence, found true the petitions' sexual abuse allegations, and adjudged the children to be persons described by section 300, subdivision (d).
Subsequently, after a contested disposition hearing, the court ordered reunification services only for the two minor boys. The court ordered father to undergo sexual abuse treatment as part of his case plan, a requirement to which father objected to preserve his appellate rights. Father then initiated this timely appeal from the disposition order.
The court bypassed reunification services between mother and her two daughters, due to the severity of the physical violence mother had inflicted on her younger daughter which had been profoundly damaging to both girls. Our colleagues in Division Four upheld that ruling. (See In re G.G. (Aug. 15, 2017, A151495) .)
The Juvenile Court's Finding Father Sexually Abused His Stepdaughter
Is Supported by Substantial Evidence.
Father advances several reasons why the finding he sexually abused his young stepdaughter is unsupported by substantial evidence. However, it is unnecessary to consider most of his arguments because they are merely attacks on the juvenile court's reasoning. In conducting substantial evidence review, we disregard the court's reasoning because "the decision of the juvenile court, if correct, will be upheld even if the stated reasons for the decision are erroneous or incomplete." (In re Lucero L. (2000) 22 Cal.4th 1227, 1249-1250 (Lucero).) The sole argument we address is father's contention that there is insufficient evidence that the hearsay statements made by N. during the forensic interview, recounted in the social worker's reports, were reliable to support the jurisdictional finding. We disagree; the court's finding is supported by substantial evidence.
Father concedes the juvenile court "properly considered" the hearsay evidence of the statements N. made during the forensic interview, but offers a confusing explanation as to why that evidence was not of sufficient weight by itself to support a finding of sexual abuse. We will address father's argument next, but the first reason we are unpersuaded is that his premise is wrong. The forensic interview was not the only evidence that N. had been sexually abused. Although N. was nervous and frightened when she testified, and eventually even denied that father had touched her between her legs, her first response when asked about this sensitive and obviously uncomfortable topic in front of a room full of strangers was that father had touched her "in a bad way." And when first asked specifically if he had touched her between her legs, she testified "only with the hands." It was only follow-up questioning both times that yielded inconsistent answers. One could reasonably infer that it became quickly apparent to this frightened five-year-old child that the more she acknowledged, the more questions she would have to face, whereas the more she denied, the less talking she would have to do and the faster her excruciating ordeal would be over. Father's briefing does not discuss these portions of her testimony, however, which came out before N. essentially "clammed up" and which specifically corroborated the statements contained in the reports of her forensic interview. Viewing the record as a whole, including her discomfort on the witness stand, these portions of her testimony together with the forensic interview constitute substantial evidence that father sexually abused N.
We also would uphold the juvenile court's finding on this point even if that finding rested solely on the hearsay evidence of the forensic interview. As father acknowledges, section 355 governs the use of hearsay evidence at the jurisdictional hearing. Subdivision (b) states that hearsay evidence contained in an agency's report "constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d)." (§ 300, subd. (b).) In turn, subdivision (c), which is at issue here, makes such hearsay evidence insufficient "by itself" to support a jurisdictional finding if two requirements are met: a party "raises a timely objection to the admission of specific hearsay evidence" contained in the report, and thereafter the agency fails to establish that one or more exceptions set forth in subdivision (c) apply. (Id., subd. (c)(1).) Father contends that two exceptions are relevant here, apparently agreeing that they apply (see id., subds. (c)(1)(B), (D)). However, he apparently contends that even where an exception applies, Lucero, supra, 22 Cal.4th 1227 requires that hearsay evidence "must provide sufficient indicia of reliability before being used as the basis for taking jurisdiction in a dependency matter if the child is incompetent as a witness because of an inability to at the time of the statement to understand the need to tell the truth and/or to distinguish between truth and falsehood." Citing I.C., supra, 4 Cal.5th 869 in his reply brief, the Supreme Court's most recent application of Lucero, he argues that viewing the record as a whole, there is not substantial evidence that N.'s hearsay statements are sufficiently reliable to support the jurisdictional finding. (See I.C., at p. 892.)
The first problem with this analysis is that father has not shown he raised a "timely objection to the admission of specific hearsay" contained in the reports of the forensic interview, which is required by the statute. Citing the objection his counsel interposed at the jurisdiction hearing, he argues his counsel "objected to the hearsay statement," however the objection he cites does not satisfy the statute for two reasons. First, it was not timely. Section 355 states that, for purposes of subdivision (c), "an objection is timely if it identifies with reasonable specificity the disputed hearsay evidence and it gives the petitioner a reasonable period of time to meet the objection prior to a contested hearing." (§ 355, subd. (c)(2), italics added.) His counsel's objection at the hearing was not "prior to" the contested hearing. The other reason the objection didn't trigger subdivision (c)'s limitations is because it was not a hearsay objection. Counsel objected to admitting the report of the forensic interview solely on the ground that N. hadn't yet been qualified as a truth-competent witness. That was all. Father's characterization of the record is inaccurate.
Second, it is unnecessary to analyze at any length the reliability standard announced by Lucero and applied more recently by I.C., because those cases involved hearsay statements made by children who were truth-incompetent and unavailable to testify. As the Supreme Court in Lucero held, "section 355 notwithstanding, the out-of-court statements of a child who is subject to a jurisdictional hearing and who is disqualified as a witness because of the lack of capacity to distinguish between truth and falsehood at the time of testifying may not be relied on exclusively unless the court finds that 'the time, content and circumstances of the statement provide sufficient indicia of reliability.' " (Lucero, supra, 22 Cal.4th at pp. 1247-1248.) N. was neither truth- incompetent nor was she unavailable for cross-examination, difficult and of limited utility though her examination proved to be.
Finally, even if the Lucero reliability requirement applied, it was satisfied here. First, as the Agency argues, N.'s statements in her interview were "detailed, specific and age appropriate": she was in the living room of their home, and every time it happened she was alone with father while her sister was at school, when he touched her with his hand in her vaginal area, sometimes under her clothes and sometimes without clothes. In addition, N. was truth-competent, able to distinguish fact from fiction. (See Lucero, supra, 22 Cal.4th at p. 1247 [a child's truth-incompetence "detracts from the [child's] reliability"].) Her statements in the forensics interview were not confused or confusing, and they contained no inconsistencies. Another hearsay statement attributed to her during the interview was indisputably true: that "He hit me." (The court sustained the allegation, which nobody contested, that father had hit the children on multiple occasions as a form of physical discipline.) N. also said, "I told him not to but he touched me anyways." Father does not argue N. had any motive to lie and we discern none. Unlike the three-year-old in I.C., N. did not make statements during the forensic interview that were demonstrably untrue. (Compare I.C., supra, 4 Cal.5th at pp. 893-896.) And finally, N. gave a reason for not telling her mother about father's inappropriate touching that, sadly, was in this case entirely plausible: "I didn't want her to hit me again." We conclude, based on the time, content and circumstances of N.'s statements in the forensics interview (see I.C., at p. 890), that her out-of-court statements were sufficiently reliable to sustain a finding father sexually abused her.
Our high court has "identified certain factors courts may consider in determining whether a child's hearsay statements satisfy this standard of reliability, including: '(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate.' [Citation.] [In re Cindy L. (1997) 17 Cal.4th 15] also cited 'the child's ability to understand the duty to tell the truth and to distinguish between truth and falsity' as a factor—albeit not a determinative one—in determining the reliability of her out-of-court statements. (Cindy L., at p. 30.) A court's determination is not limited to these factors, however; 'any factor bearing on reliability may be considered.' [Citation.] '[T]he unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.' " (In re I.C, supra, 5 Cal.5th at p. 891.) --------
The Juvenile Court Did Not Abuse Its Discretion in Ordering Sexual Abuse
Counseling in Light of Father's Sexual Misconduct Toward His Stepdaughter.
Father's next argument is that even if there is substantial evidence he sexually abused his stepdaughter, there is insufficient evidence his own sons were at "substantial" risk of being sexually abused within the meaning of section 300, subdivision (d).
This second issue presents a close question. However, our conclusion that the juvenile court did not err in finding father sexually abused N. makes it unnecessary to decide it. That is in part because, as we understand it, father's sole argument (clarified at page 18 of his reply brief) is that there would be no evidentiary basis for the counseling requirement if we vacate the findings he engaged in sexual misconduct. Since we have affirmed that finding, his argument that the disposition order was not appropriate is moot.
Moreover, even if father were trying to make the broader argument that any abuse of N. was not alone sufficient to justify the sexual abuse counseling component of his case plan, we would reject it. Father did not contest the exercise of dependency jurisdiction over his sons under section 300, subdivision (b) based on allegations of his and mother's physical abuse of the children. Given this acknowledged basis for dependency jurisdiction over father's young children, it was not an abuse of the court's discretion, after finding that he sexually abused his five-year-old stepdaughter in the same family home where he and his sons resided, to order him to participate in sexual abuse counseling as a condition of reunifying with his sons. This is so even if there were insufficient evidence to support a finding that the boys were themselves at "substantial" risk of sexual abuse sufficient to independently support the exercise of dependency jurisdiction over them. The court has wide latitude to fashion disposition orders that are appropriate to serve a child's best interests (In re Briana V. (2015) 236 Cal.App.4th 297, 311), a point no party disputes. A juvenile court could reasonably conclude it is in a child's best interest for their father to undergo sexual abuse counseling in such circumstances. That a child is not at "substantial" risk of suffering sexual abuse in such circumstances does not mean the child is at no risk. Furthermore, in the course of raising young children, parents inevitably come into contact with many other young children, in endless ways and in many settings. Left untreated, a parent with a history of sexually abusing a young child might well offend again if the opportunity arose. It is not in a child's best interest for his parent to molest another child, no matter the circumstances and no matter the victim. If the parent were to reoffend with another child, there could be a significant emotional and psychological impact on the parent's own child even if that child was not the victim of the sexual abuse. In such a circumstance, the child could again end up a dependent ward of the juvenile court, and the parent could end up in prison. When a juvenile court is aware of parental problems that pose a potential risk to a dependent child, it may order appropriate services designed to ameliorate them if there is an evidentiary basis to do so. (See Briana V., at p. 312.) The court would be remiss if it turned a blind eye, even if such problems do not presently affect a parent's ability to care for his or her child. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) Like other courts before us in similar circumstances, we have no trouble affirming this dispositional order. (See id. at pp. 1006-1008 [affirming order requiring reunification services relating to father's alcohol abuse despite that evidence was insufficient to base dependency jurisdiction on risk to child from his alcohol abuse]; Briana V., at pp. 311-312 [affirming order requiring sexual abuse counseling for father who was registered sex offender, despite no evidence his children came under section 300, subdivision (d)].)
The disposition order is affirmed.
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________