Opinion
A129097
08-09-2011
In re M.T. et al., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S.T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. Nos.
OJ09013828, OJ008010386)
S.T. Sr. (Senior), challenges the juvenile court's assertion of dependency jurisdiction over his two children, S.T. Jr. (S.T.) and M.T., and the court's decision to deny him reunification services. The dependency allegations and the denial of services were supported by hearsay statements from the children's half-brother, T.W., who said Senior pushed him from a second-story window. Senior contends this evidence was insufficient to support the juvenile court's orders. We disagree. We conclude that the critical hearsay statements were sufficiently reliable to prove the allegations. Thus, we affirm.
BACKGROUND
T.W., three years old, and his half-brother, 8-month-old S.T., were removed from their home in July 2008 after a caseworker responded to an anonymous complaint that the children were living in filth. The caseworker concluded the home was hazardous and uninhabitable for the children. The children were detained, and the Alameda County Social Services Agency (Agency) filed a juvenile dependency petition alleging that Senior and Mother failed to protect the children from harm or provide for their welfare. (Welf. & Inst. Code, § 300, subds. (b) & (g).) Two weeks after the children were removed, Mother and Senior had cleaned the apartment and promised to remedy the hazardous condition by locking or fixing the apartment windows so a child could not fall out of them. The children were returned home.
All further statutory references are to the Welfare and Institutions Code.
Both Mother and Senior submitted to the allegations of the petition at a hearing in late July 2008. The court sustained the allegation and ordered family maintenance services. The Agency's six-month report indicated that the home was in modest disarray and that Mother neither attended therapy nor made medical and dental appointments for T.W. Senior was on probation and required to attend a 52-week domestic violence program. The court continued the dependency, but allowed T.W. and S.T. Jr. to remain at home.
Before the next scheduled review hearing in July 2009, Mother gave birth to a daughter, M.T., in May. Senior had served time on a parole violation, but lived with Mother and the children from April until May 20, 2009, when he was arrested for a new violation. The physical condition of the home had improved, and Mother had participated in most services even though she had not yet secured the apartment windows. The case worker contacted the apartment manager and was told the windows were properly screened on July 1, 2009. The court continued the dependency.
Then, in November 2009, tragedy struck and T.W. was seriously injured when he fell from one of the apartment's second story windows. He was hospitalized with severe internal injuries, multiple skull fractures, and a fractured leg.
The Supplemental Petitions
Oakland police took S.T. and M.T. into protective custody because of T.W.'s fall and unsafe, unsanitary living conditions they found in the home. The apartment smelled strongly of smoke, the carpets were damp with patches of an unknown sticky substance, there were dirty-looking black and brown stains throughout the rooms, and the children's bed appeared sullied, as if the sheets had not been cleaned in some time. The bed was within inches of an open window without a screen. Screens in the dining and living room windows were torn and damaged and there was an exposed electrical outlet. Senior was arrested on a no-bail felony warrant for selling illegal substances. Mother was cited and released for willful cruelty to a child.
Based upon T.W.'s injuries, the condition of the apartment, and Senior's arrest, the Agency filed supplemental petitions on behalf of S.T. and T.W. and an original petition on behalf of the new baby, M.T., and recommended detention for all three children.
As of November 25, 2009, T.W. was in the pediatric intensive care unit at Children's Hospital Oakland and S.T. and M.T. were in foster care. Mother said T.W.'s accident happened when Senior was cooking breakfast and opened a few windows because the apartment was getting smoky. Senior said he called T.W. to come eat breakfast, and when the boy failed to respond he went into his room, looked out the window and saw him on the ground.
A case worker interviewed S.T., then two years old, on November 23, 2009. The boy was friendly, but his speech was somewhat difficult to understand. Before the case worker asked any questions, S.T. said "he fall from the window." Asked who had fallen from the window and how, S.T. repeated the sentence verbatim. When the case worker asked S.T. whether he saw someone fall from the window, he answered "no" and said he was told that "he fall from the window."
Subsequent Reports and Hearing
The court ordered S.T. and M.T. detained in foster care with supervised visitation for Mother. The Agency's report for the next jurisdiction and disposition hearing recommended foster care with the children's current foster parent, where they were doing well. T.W. had left the intensive care unit but remained at Children's Hospital Oakland, where Mother visited him daily.
Additional information surfaced about T.W.'s fall. After Senior visited him in the hospital, T.W. told a nurse that Senior had pushed him out of the window. When the nurse asked, "you mean your dad pushed you in the wheel chair?" T.W. repeated that Senior pushed him out of the window and said he was afraid of Senior.
The case worker clarified the status of the apartment windows in a December 2009 report. "[Mother] failed to replace the screens on her own, so the Agency contacted the landlord directly and it was reported that the screens were replaced. However, in October 2009, the Agency noticed that the screens had in fact never been replaced. The home was visited on two separate occasions in November 2009, the last time being November 16, 2009 to check on the status of the home and the screens. At one point the Agency went so far as to offer to pay for the screens to be replaced if the family was experiencing difficulty with their landlord. [Mother] never followed through. Additionally, two attempts were made to schedule a Team Decision Making meeting in hopes of keeping the home in tact [sic], but [Mother and Senior] failed to show for both meetings. [T.W.] fell from the open window a few days following the last scheduled Team Decision Making meeting." Neither parent had adequately complied with the case plan, and the case worker felt it was not safe for the children to return home in light of T.W.'s disclosure that Senior pushed him out of the window and Mother's failure to secure and maintain suitable housing. Senior objected to hearsay statements in the reports, and demanded that all hearsay declarants be made available for cross-examination.
The Amended Supplemental Petitions
On January 27, 2010 the Agency filed amended supplemental petitions for M.T. and S.T. adding a new allegation that T.W. had disclosed that Senior had pushed him out of the window and also told him to "suck on my dick bitch" and "suck on my nuts," farted in his face, and hit him on his face and back. In an addendum report filed February 26, 2010, the Agency recommended that the court continue the two boys as dependents, declare baby M.T. a dependent child, and continue all three children in foster care with reunification services for Mother and Senior. The two younger children had supervised visits with Mother and Senior, while T.W. had visits only with Mother. On one of those visits Senior tried to approach T.W. Although the foster mother intervened, T.W. saw Senior and became distressed.
The Agency also reported on potential witnesses and their anticipated trial testimony. Dr. L. Kaleb Friend would testify that on December 6, 2009 T.W. told a nurse his dad pushed him out of the window and that he was afraid of his dad. The Agency and parents' counsel later stipulated that Dr. Friend's testimony would not address the cause of T.W.'s fall because Dr. Friend did not hear T.W.'s statement. The property manager at the apartment building would testify that the window screens had been replaced at least twice, but that Mother and Senior removed them so they could dump cooking oil and garbage out of the window. A maintenance worker would also testify that she often saw T.W. at the window with no screens in place and saw Mother remove the screens to throw out cooking oil. Mother and Senior objected to hearsay evidence in the reports, and specifically to T.W.'s hearsay statements, on the basis that they lacked sufficient indicia of reliability to support dependency jurisdiction.
A police report dated December 6, 2009 identified the nurse who reported it to him as Jenny Zuniuga. The police report was appended to the Agency's April 26, 2010 addendum report.
The March 5, 2010 Hearing
At the jurisdiction/disposition hearing on March 5, 2010, the court, parents and counsel viewed CALICO (Child Abuse Listening, Interviewing, & Coordination Center) tapes of interviews of T.W. conducted in January 2010. T.W. told the interviewer that Senior hit his face, his head and his back, made him cry, and gave him a bloody nose. Senior also said to him "suck these balls bitch," "suck these nuts," "bitch," "fuck you," and "motherfucker." T.W. said he fell out of the window, but would not say how it happened. The interviewer asked him if Senior said anything when he pushed him out of the window. T.W. said "mmhmmm," nodded, and slapped his own head repeatedly, but would not talk about the incident and left the interview room. T.W. also told the interviewer that his mother told him not to talk about some things.
The foster mother testified that on December 31, 2009 she was driving with T.W. in the back seat of her car when T.W. blurted out, "Suck my balls, bitch." The foster mother told T.W. not to say that. T.W. then said "[S.T.] says 'suck my balls, bitch.' He said that I was nasty; and when I didn't do it, he farted in my face and pushed me on my back out the window." T.W. repeated the same statement numerous times over the following days to a number of people, including the foster mother's cousin, her daughter, and her daughter's friends. At church T.W. began to tell the story into a microphone, but his foster mother took the microphone away before he could finish. Then T.W. told a church member that he was pushed out of the window.
Although T.W. referred to Senior as "S.T.," later on he started calling him "Big [S.T.]," apparently to differentiate him from S.T., Jr.
Later, when T.W. was being prepared for a surgical procedure, the nurses asked him what had happened. He said "I was pushed," but Mother gave him a mean look from the end of the bed and he stopped talking. The foster mother said T.W. appeared to be frightened by the look and that he stopped talking because of Mother. T.W. also told his foster mother that Mother was there when Senior pushed him, and that she was crying.
The foster mother also testified that T.W. calls his little brother "PJ," calls Senior "[S.T.]," calls Mother "Tiffany," and calls his grandfather (who lived in the same apartment) "Daddy." T.W. told the foster mother that both Senior and Mother whipped him with belts, that Senior also whipped S.T. and M.T., and that Senior "hits Tiffany all the time."
The foster mother testified: "One day we were at the store and there was a lady that worked there. She said, 'You are so cute. Will you be my little boyfriend?' He said 'okay.' When we walked outside he said 'I will do her like this.' [gesture] And then he said, 'Boys do their girlfriends like that.' And I was, like, 'What do you mean by that? That's not nice.' He goes, '[Senior] hits Tiffany all the time just like this' [gesture], and he did the same motion of the hand." To demonstrate T.W.'s hand motion, she made her hand into a fist and brushed it across her chin.
During a phone conversation between T.W. and Mother, the foster mother heard T.W. say "Let's talk about [Senior]." Mother responded "Not now" and changed the subject. When T.W. accidentally encountered Senior during a visit, the boy's eyes filled with tears and he looked upset and afraid.
Mother and Senior moved for a directed verdict on the ground that the Agency's case was based on unreliable hearsay. The court found the challenged hearsay was sufficiently reliable and denied the motions for a directed verdict and to exclude hearsay.
The May 14, 2010 Hearing
The Agency filed an addendum report on April 26, 2010. It recommended that T.W. and S.T. be continued as dependents, M.T. be declared a dependent, and services be terminated as to T.W. and S.T. and bypassed as to M.T. Mother was being held on child endangerment charges related to T.W.'s fall. When the jurisdiction/disposition hearing resumed on May 14, 2010, Senior made two offers of proof: first, that Mother would testify T.W. referred to S.T., Jr. as "[S.T.]," called Senior "Pops" or "Twan," called M.T. "PJ" and called his grandfather "dad"; and second, that on December 6, 2009 a doctor said T.W. was not ready to be interviewed and was not credible at the time because of his brain injury. Mother made an offer of proof that T.W. learned foul language from an older cousin. The Agency and T.W.'s counsel stipulated to the offers of proof.
Mother submitted on the petitions in exchange for an offer of six additional months of family reunification services. Senior submitted on the petitions, except for the new allegation about T.W.'s fall. The court found clear and convincing evidence supporting all of the allegations and denied reunification services for Senior. The children were continued in foster care. Mother was ordered to cooperate with the case worker and to participate in all aspects of her case plan. Senior filed a timely appeal.
DISCUSSION
Senior argues that hearsay evidence in the Agency's reports was inadmissible because it lacks sufficient indicia of reliability to support the court's finding that he pushed T.W. out of the window or its decision to bypass reunification services on the basis of that finding. We disagree.
I. Standard of Review
We review the challenged findings to see whether they are supported by substantial evidence, contradicted or uncontradicted. "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 we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) If the juvenile court's decision is correct on any basis, we will uphold it even if the stated reasons are erroneous or incomplete. (In re Lucero L. (2000) 22 Cal.4th 1227, 1249-1250 (Lucero L.).)
II. Analysis
Our assessment of Senior's argument is controlled by a qualified hearsay exception specific to juvenile dependency jurisdictional hearings codified in section 355, subdivisions (b) and (c), as explained by our Supreme Court in Lucero L.
Section 355, subdivision (b) provides: "A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d)." Hearsay statements made admissible by section 355, subdivision (b) are admissible whether or not the child is "truth competent" or, in other words, able to distinguish between truth and falsehood. (Lucero L., supra, 22 Cal.4th at p. 1243, 1246.) However, "the hearsay statement . . . shall not be admissible if the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence." (§ 355, subd. (c)(1)(B).) Moreover, if a party makes a timely objection, the hearsay "shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based" unless the agency establishes that one or more listed exceptions apply. (§ 355, subd. (c).) The exception that makes T.W.'s statements potentially sufficient here is expressed in subdivision (c)(1)(B), which applies when the hearsay declarant is the subject of the jurisdictional hearing and is less than twelve years old.
In Lucero L., supra, a plurality of the Supreme Court held that due process considerations require that any reading of section 355 be qualified. "Although there is nothing unconstitutional about allowing the minor's hearsay statements to be admitted in a jurisdictional proceeding, subject to exclusion only on grounds of fraud, deceit, or undue influence, a serious due process problem is raised by permitting, as section 355, subdivision (c)(1)(B) does, sole reliance on such statements without any particular indications of the statements' reliability." (22 Cal.4th at pp. 1245-1246.) Therefore, to survive constitutional scrutiny, hearsay statements by the minor may not be relied on exclusively to establish jurisdiction unless, in application of section 355, the court finds that " 'the time, content and circumstances of the statement provide sufficient indicia of reliability.' " (Id. at p. 1249, quoting In re Cindy L. (1997) 17 Cal.4th 15, 29 (Cindy L.); Lucero L., supra, 22 Cal.4th at p. 1251 [conc. opn. of Kennard, J. & and Brown, J.].)Relevant factors include (but are not limited to): "(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." (Lucero L., supra, at pp. 1239; Cindy L. supra, at pp. 29-30.) A child's ability to understand the duty to tell the truth and to distinguish between truth and falsity is also a factor in determining reliability of extrajudicial statements, but is not a "categorical bar." (Lucero L, supra, at p. 1240; Cindy L., supra, at p. 34).
Justice Chin, joined by Justice Baxter, also concurred with the plurality's result, but wrote separately to state his disagreement with its view that hearsay may not serve as the sole basis for a jurisdictional finding unless the court finds special indicia of reliability. (Lucero L., supra, 22 Cal.4th at pp. 1252-1253.)
Thus, the question here is whether T.W.'s hearsay statements were sufficiently reliable to support the finding that Senior pushed him out of the window. Preliminarily, Senior's claim that the court failed to consider factors bearing on the reliability calculus is completely without merit. Senior's attorney argued vociferously that those factors, including spontaneity, repetition, consistency, motive to lie, and use of developmentally inappropriate language weighed against a finding of reliability. The court disagreed, expressly referenced Cindy L., and noted that every one of the factors identified as relevant weighed in favor of reliability. The court conducted the appropriate inquiry.
Moreover, the court was well within its discretion when it found T.W.'s hearsay statements were sufficiently reliable. T.W. repeated his statement about Senior pushing him out of the window on numerous occasions — to his foster mother, to her daughter and her daughter's friends, to her cousin, to a nurse, and to at least one church member. His statements appear to have been unprompted and spontaneous. The language he used and attributed to Senior would most certainly not be expected from a four year old. T.W.'s visible fear of Senior when he accidentally encountered him during a visit lends additional support to the likely truth of his description of abuse, as does his reaction when the CALICO interviewer asked whether Senior said anything when he pushed him out of the window. On the other hand, the record discloses no evidence that T.W. was coached or had a motive to lie. Senior's mere speculation that the boy might have resented Senior's relationship with Mother is not evidence. The trial court reasonably gave it little, if any, credence. We will not interfere with the court's credibility determination. (See In re Heather A., supra, 52 Cal.App.4th at p. 193.)
Senior also argues that T.W.'s statements were insufficiently reliable because he had suffered a head injury. He says the boy "may" have been medicated or sleepy at the time; that one of his doctors said in December that he was not credible because of his head injury; and that when T.W. said that "[S.T.]" and his "dad" pushed him out of the window, he might have meant his little brother or his grandfather. But the question for us is not whether the court could have assessed the evidence differently and reached a different conclusion. The only question before this court is whether the conclusion reached by the juvenile court - that T.W.'s hearsay statements were supported by sufficient indicia of reliability - is supported by substantial evidence. It is.
Finally, Senior cites Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839 (Tyrone W.)to argue the evidence was insufficient to establish that he pushed T.W. intentionally, rather than by accident. Not so. Tyrone W. addressed the application of section 361.5, subdivision (b)(6) when one parent neither knows nor has reason to know that the other parent is abusing their child. In that context, it held that "[t]he Legislature did not intend subdivision (b)(6) to apply to deny reunification services to a negligent parent; rather, the parent must have been complicit in the deliberate abuse of the child." (Id. at p. 843.) Here, however, there is ample evidence that Senior actively and deliberately abused T.W. by beating him, verbally abusing him, and pushing him out of a second story window. There can be no question but that the abuse was deliberate. Senior's contention, essentially that the evidence fails to prove he actually meant for the child to fall out of the window when he pushed him, is without merit.
Reunification services may be bypassed under 361.5, subdivision (b) if the court finds by clear and convincing evidence that "the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." (§ 361.5, subd. (b)(6).)
DISPOSITION
The orders of the juvenile court are affirmed.
Siggins, J. We concur: Pollak, Acting P.J.
Jenkins, J.