Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. CK64010 Valerie Skeba, Juvenile Court Referee.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James Owens and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, J.
Javier D. appeals from orders made in the dependency proceedings concerning his stepdaughter Alba (he is Alba's presumed father) and son Justin. He contends that there was insufficient evidence for the order sustaining the Welfare and Institutions Code section 300 petition under subdivision (d), that the court erred when it denied oral argument at the jurisdictional hearing, and that it erred when it delegated the decision on appellant's visits with Alba. We reverse the order concerning visits and affirm in all other respects.
All further statutory references are to that code.
Facts
The dependency was initiated in September 2006, after a caller told DCFS that the children had been physically abused at a birthday party, resulting in an emergency room trip for Alba. On September 27, DCFS went to the family's home in Palmdale and spoke to eight-year-old Alba, her mother (Lucilia M.), and a tenant who lived in the home. (Appellant was not at home and Justin was only a year old.) DCFS was told that on September 26, Lucilia learned that appellant had brought a girlfriend into the house in her absence, and that Alba was aware of this. Lucilia sent Alba to her room. When one of the tenants checked on Alba, she discovered that Alba had lost consciousness. Paramedics were called and Alba was taken to the hospital, though doctors apparently found nothing.
During the September 27 interview, DCFS observed injuries on Lucilia's face and bruises on her body. She denied domestic violence. Appellant later admitted to pushing Lucilia during an argument about his infidelities.
The children were placed in foster care on September 28, 2006. On October 2, a section 300 petition was filed under subdivisions (a) and (b), on allegations concerning domestic violence between appellant and Lucilia.
During the September 27 interview, Alba told DCFS that her parents (she often referred to appellant as "daddy" or "dad") did not hit her and that her mother had not hit her on the day she went to the hospital, but during a subsequent interview, she said that her mother had hit her that day, and that "I was crying, I got so sad, then I had a hard time breathing." She said that Lucilia and appellant had fought and screamed in the car on the way home from the hospital, that she had seen them hit or scratch each other many times before, and that both of them had hit her and her brother many times.
At first, appellant and Lucilia visited the children in their foster placement with no complaints. However, in January, Alba's foster mother, Margarita E., reported the following to DCFS:
During a December visit, appellant asked Alba to sit on his lap. When she got up, he had an erection. Margarita told Alba that in the future she was not to sit on appellant's lap. Then, on January 6, at bedtime after attending a child's birthday party, Alba started to cry. She told Margarita that she had remembered that appellant did bad things to her, saying that he had fondled her private parts, underneath her clothes. Margarita, who believed that Alba had previously been molested by a family friend and "no one did anything about it," informed DCFS. Margarita also told DCFS that she had seen appellant play with Justin's genitals, while changing Justin's diaper.
Evidence in the record indicates that Alba told her mother about that incident, and that Lucilia and appellant reported the information to the police, but that the individual could not be found.
A social worker spoke to Alba, who said that appellant had touched her "cosita" and her "pompis" (translated by the social worker as "genital area") every time her mother was at work, on Thursdays and Fridays. She did not tell anyone because she was afraid that her mother would hit her. Alba and the social worker also discussed the earlier molestation.
Law enforcement was notified, and a sheriff's deputy interviewed Alba. She said that appellant touched her privates, underneath her clothes. It happened on several occasions when they lived in Palmdale, on Thursdays and Fridays when her mother was at work.
On January 12, Margarita again contacted DCFS. She said that Alba had made additional disclosures: appellant had "for real" abused her. He took off his clothes and told her to undress. He told her to touch his "part," which got hard. He put saliva in her buttocks and "cosita" (translated as "vagina") and penetrated her. She did not let him put all of his "part" inside, because it hurt.
The social worker talked to Alba on the phone, asking if she wanted to continue her visits with appellant. Alba said that she did not. When asked why, she said that he "did things" to her, then said that he had touched her "cosita," that is, her "front part," and her "bottom part" both over and under her clothes. This took place in her bed, in her mother's bedroom, while her mother was at work.
DCFS filed an amended petition which added allegations under subdivisions (b), (d), and (j), that both children were endangered because appellant had sexually abused Alba.
The trial court suspended appellant's visits and ordered a forensic medical exam for Alba. The exam could neither confirm nor negate sexual abuse. The doctor's notes reflected that Alba told him that appellant touched her private part and "back part" with his hand and with his private part, that it happened at home while appellant was babysitting, and that it happened when she was eight years old. (Alba's birthday was in December, and she was by then nine years old.)
In March, a new social worker spoke to Alba and Margarita. This time, Margarita said that Alba made her initial disclosure while they were in the car. Alba cried so hard that Margarita pulled over to the side of the freeway.
The social worker asked Alba if anything stood out in her mind, about what appellant had done to her. Alba said that appellant told her that he would hit her if she told her mother, and that he used saliva on her, and "some stuff like the stuff that you put on salad." The social worker asked Margarita whether she had taken Alba to the store to see if she could point anything out. Margarita said that she had not.
A jurisdictional hearing was held on June 13, 18, and 19. The court heard testimony from Alba, appellant, and Margarita E.
Throughout, Alba also testified that appellant and Lucilia hit her, but most of that testimony is omitted here, because it is not relevant to any issue on appeal.
On examination by DCFS, Alba testified that appellant had "touched her in a bad way," in that "he touched me with his hand in my private parts." She pointed to a toy bear, indicating the vaginal area. He had also touched her bottom. He did not take his clothes off, and she did not remember whether her clothes were off. She liked Margarita and liked being with her because "I'm safe," and because "she helps me with what Javier did to me." Alba also testified that she wanted to see appellant and wanted to stay with her mother.
On examination by her own lawyer, Alba testified that she had told Margarita that appellant touched her private parts. It was a long time ago, when she was six or seven, and she didn't tell anyone because she was afraid they would take her away and "I won't see my mommy any more." He touched her with his hand and with his private part when she had clothes on, and put his private part inside her.
Appellant's lawyer examined Alba about her statements to DCFS social workers, and to the hospital nurse and social worker. She answered "I don't know," or "I don't remember," to most of the questions. On this examination, Alba also testified that she went to the hospital because she could not breathe. She testified that she was upset because her mother hit her, and that she was upset because "my dad brought another lady in the house that my mom doesn't like."
Regarding the lap-sitting incident, Alba testified that she remembered sitting on her daddy's lap. She was not afraid or sad. She remembered Margarita telling her not to do that anymore, but did not know why Margarita had said that.
She answered "I think so," when asked whether she remembered a time when Margarita pulled over to the side of the freeway because "someone was upset," but did not remember anything about the incident, or crying in a car because she was upset. She did not remember being sad after a birthday party. When asked about her initial communication with Margarita about being molested, Alba testified that she didn't remember what started the conversation, that she did not bring it up, and she did not know whether Margarita had, and didn't remember.
Regarding the molestation, Alba testified that it happened on a Friday or a Thursday, in her mother's room, right after breakfast. The family's tenants (Alba testified to seven of them) were at home. She testified that appellant touched her private parts and her bottom with his hand and his private part, and that she was wearing pants and underwear, and that this happened a long time ago, when she was six or seven. She also testified that it happened "right before" she moved from her mother's house.
When counsel returned to the subject later in the examination, Alba testified that she did not have clothes on when appellant touched her, and answered "yes" when she was asked whether appellant's private part went inside.
Alba answered "no" when she was asked whether Margarita had told her that appellant touched her private parts, and "yes" when she was asked whether Margarita had asked whether appellant had put his hand in her private parts, or put his private part inside her.
She testified that she was "a little bit" afraid of appellant because he hit her. She was asked about visits in which she had run up to appellant and hugged and kissed him. She testified that she hugged and kissed him because she wanted to, that she was excited to see him, and she liked having him visit and was not afraid of him.
She never told anyone anything about saliva. She did not remember ever using the word "cosita," but did use the word "pompa" for "your sitting part." She was mad at appellant because he brought another woman into the house and would like it if he did not live with her mother anymore, but would not say bad things about him so that he would not come home.
Margarita E.
Margarita was asked about appellant's visits prior to early December. She testified that everything was good between Alba and appellant, but that on occasion, she and appellant "had problems." On one visit, appellant told her not to answer questions that he had directed at Alba. This did not make her angry, she just told him that he could not say that. She testified about the lap sitting incident, consistent with her report to DCFS.
Regarding Alba's disclosures, Margarita testified that on January 11, in the car on the way home from a visit, Alba began to cry. She cried so much that Margarita pulled over. Alba said that she was sad because she could not be with her mother, then said that when her mother was not at home, appellant would touch her, undress, and tell her to undress, and that he would have an erection and make her touch it, and would put saliva on her and on himself, and penetrate her. Alba also said that appellant had bought something to use on her. Margarita had a bottle of teriyaki sauce with her in court, and testified that Alba had asked her to buy it, because it was what appellant had used. Later, she testified that Alba reported that appellant used cooking oil.
Margarita was asked whether there was "a party day when you got home and Alba went to bed that she was sad and reported sexual abuse," and answered that she did not remember.
Margarita also testified that Alba said that appellant would hit her when she did not do what he wanted, that the abuse happened on Thursdays and Fridays, that it happened when Alba was six or seven, and that appellant touched her with his hands and his private part. Alba told the same story over and over again, four or five times. She had asked Alba whether appellant had touched her private parts, but only after Alba raised the subject.
Margarita testified that the foster family agency had told her about the earlier molestation: a family friend had touched Alba. Appellant wanted to fight him, but Alba was angry because her mother did not call the police.
Regarding the incident with Justin, Margarita testified that appellant was changing Justin's diaper and touched Justin's private parts.
She had no training in interviewing children about allegations of wrongdoing, and no sex abuse training.
Appellant
He testified that he and Alba had a healthy father-daughter relationship. Until December 12, his visits with her were very good. Alba was affectionate, and would greet him with an embrace. She often sat on his legs or lap, on her own initiative. He never had an erection after Alba sat on his lap.
On December 12, he asked Margarita not to answer questions he had addressed to Alba. She appeared to be angry, and soon thereafter told Lucilia that "no one makes me shut up" and that she was extremely bothered. After that, Margarita was "more strict" in the visits. She stayed close to Alba, and would not let her play.
Before Alba was detained, he sometimes cared for her on Thursdays and Fridays when her mother was at work. There were six to eight renters in the Palmdale home the family lived in before the children were detained. He described that home, and the previous home in Los Angeles, and was cross-examined on the descriptions.
Appellant testified that his girlfriend had come to the house in Palmdale 10 times. Alba knew what was going on, and was very angry.
He had never touched Alba's private parts or abused her in any way.
Regarding the incident with Justin, appellant testified that he only cleaned Justin's penis with a towel.
The ruling
After the close of evidence, the trial court informed counsel that "I'm not going to hear closing arguments in this case. I heard all the same evidence that you all did, and I really don't need to have it repeated. It's not helpful to the court in this case." Counsel for appellant objected, but the court did not change its ruling.
The court found Alba and Margarita's testimony more convincing than appellant's, finding that Alba was shy and sad while testifying, affects appropriate for the subject matter, and that in many instances her testimony that she did not remember meant that she did not want to talk about it. As to the medical report, the trial court found that it suggested that there was no actual penetration, but that Alba had not described that much penetration, and that the medical exam was not conclusive. The court found that Margarita had no motive to lie, and that neither Alba nor Margarita had fabricated the account of abuse.
The court sustained the petition under subdivision (b), on allegations concerning appellant and Lucilia's violent confrontations; and subdivisions (d) and (j), on allegations concerning appellant's sexual abuse of Alba.
The court ordered reunification services, including monitored visits for Lucilia and visits for appellant with Justin and "with respect to Alba, with her consent only."
Discussion
1. The jurisdictional finding
Appellant challenges the sufficiency of the evidence for the finding under subdivision (d). He contends that Alba's out-of-court statements about molestation were so unreliable that they should have been excluded, and that her testimony in court was insufficient to support the finding.
Factually, he cites Alba's motive to fabricate (her anger at him because he brought his girlfriend home) and the inconsistencies between her statements to Margarita (or Margarita's accounts of those statements) to the social worker, and at trial.
Appellant also makes arguments based on Margarita's testimony. He points to evidence that he and Margarita had an argument prior to the time Alba first spoke about molestation, and contends that Margarita had a reason to fabricate, and further contends that this makes the timing of Alba's disclosures suspect. He also points to the fact that Margarita had no training in childhood sexual abuse and argues that the fact that Margarita had been told that Alba was molested by someone else may have led her, with all good intentions, to suggest to Alba that appellant had molested her. He also argues that, if Margarita was credible, the trial court would have limited his visits with Justin, based on Margarita's observation that he had inappropriately touched Justin's penis.
We see no problem in the admission of the multiple-layered hearsay statements in the DCFS reports. Under section 355, subdivision (b), "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). . . ." Subdivision (c) concerns hearsay testimony to which there was an objection, and there was none here. Subdivision (d) concerns the right to subpoena a witness and present evidence, again not relevant here.
Appellant complains that Alba's statements did not meet the reliability standards set out in In re Lucero L. (2000) 22 Cal.4th 1227, but that case concerned admission of statements by children who were incompetent to testify. Alba testified, and there is no need for a Lucero analysis.
As to the merits of the finding, our review is for substantial evidence (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649) and we find such evidence.
It is true that there was evidence that Alba was angry at appellant for reasons unrelated to molestation, and evidence that Margarita disliked appellant and was untrained in discussing molestation with children. And, as appellant argues, it does not appear that the trial court believed that Margarita was correct in her perception of appellant's conduct with Justin. It is also true Alba's testimony differed in some respects from the earlier statements, at least as they were recounted by Margarita and social worker. Margarita's testimony and statements also varied.
None of this compels a finding of lack of substantial evidence. A trial court could properly find that Margarita misperceived appellant's conduct with Justin, and also find her credible in her accounts of her conversations with Alba. Alba and Margarita might have had motives to fabricate, but that does not mean that they did so. After hearing and seeing all the witnesses, this trial court found that Margarita and Alba were credible, and appellant less so. It is the trial court's role to assess the credibility of the witnesses and to weigh the evidence, not ours. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Most importantly, despite any variations, the essence of Alba's account did not change. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 195.) Her statements, both in and out of court, that appellant touched her and penetrated her constitute substantial evidence for the trial court's findings.
2. Closing argument
The court decided not to hear oral argument on the jurisdictional issues. Appellant concedes that he had no statutory right to closing argument, and that there is no due process violation when closing argument is denied in a noncriminal bench trial such as the hearing here, so that the decision is one for the court's discretion. He argues, however, that given that this hearing took place over a longer period of time, closing argument would have benefitted the court, so that it was unfair and an abuse of discretion to deny closing argument.
We see no abuse of discretion, and no unfairness. The hearing did take place over a number of days, but nothing indicates that the trial court was other than fully conversant with the evidence and the legal standards, so that, as that court ruled, closing argument was not necessary.
3. Delegation of visits
The juvenile court has the sole power to determine whether visitation will occur and may not delegate its power to grant or deny visitation to any agency, person, or entity. (In re S.H. (2003) 111 Cal.App.4th 310, 317; see In re James R. (2007) 153 Cal.App.4th 413, and the cases collected therein.) This includes a delegation to the child. "In no event . . . may the child's wishes be sole factor in determining whether any visitation occurs . . . ." (In re S.H., supra, 111 Cal.App.4th at p. 319.) Thus, an order such as this one, which "essentially delegated judicial power to the children [is] an abdication of governmental responsibility." (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) The order must be reversed.
DCFS's argument on this point is that the court did not delegate the visits decision, but merely continued the order suspending visits, which it made after Alba first spoke of abuse. We cannot so read the record. The trial court ruled that appellant could have visits with Alba "with her consent only," and thus improperly delegated the decision.
Disposition
The jurisdictional finding is affirmed. The order concerning appellant's visits with Alba is reversed, and the case is remanded for further proceedings consistent with this opinion.
I concur: MOSK, J. Turner, P.J.
I respectfully dissent from the reversal of the visitation order which gives the child, Alba G., who was eight and one-half years old at the time the order under review was issued, the authority to decide whether to visit with her stepfather, Javier D.
The stepfather cites two cases which, on separation of powers grounds, disapprove of the juvenile court, as part of its visitation order, granting to a child the right to reject visits with an offending parent. The first opinion, authored by the late Associate Justice Thomas F. Crosby, held that the separation of powers doctrine prevented the juvenile court from allowing a child to determine whether there would be visits with an offending parent. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) The second opinion, authored by Presiding Justice Dennis M. Perluss, likewise held that allowing a child to determine whether visits would occur with an offending parent violated the separation of powers doctrine. (In re S.H. (2003) 111 Cal.App.4th 310, 318.)
The separation of powers rule is specified in article III, section 3 of the California Constitution: “The powers of state government are legislative, executive and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” The purpose and effect of the separation of powers rule is to: limit the authority of one of the three branches of government to arrogate to itself the core functions of another branch; define a governmental system in which the powers of the three branches are to be kept largely separate; recognize the existence of common boundaries between the legislative, judicial, and executive zones of power; protect any one branch against the overreaching of any other branch; maintain an interdependent system of government; and permit actions of one branch that may materially affect those of another branch. (In re Rosenkrantz (2002) 29 Cal.4th 616, 662; Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297-298.) This case does not involve one branch of government exercising the core functions of another branch—rather a child has been given the option of deciding she will not subject herself to being in the presence of a serial molester who happens to be her stepfather.
Further, nothing in the dependency law prohibits the juvenile court, in exercising its discretion over visitation, from permitting a child to refuse visits with an offending parent. Visitation is governed by Welfare and Institutions Code section 362.1, subdivision (a)(1) which requires visitation occur as frequently as possible, consistent with the child’s well-being. But Welfare and Institutions Code section 362.1, subdivision (a)(1)(B) expressly states, “No visitation order shall jeopardize the safety of the child.” Nothing in the language of Welfare and Institutions Code section 362.1, subdivision (a)(1)(B) prohibits the juvenile court from conditioning visitation with an offending parent on a child’s consent.
This case closely parallels our Supreme Court’s decision in the case of In re S.B. (2004) 32 Cal.4th 1287, 1291, 1295-1296. In S.B., the mother argued it was improper for visitation to be conditioned on the consent of the guardian. While the case was pending before our Supreme Court, Welfare and Institutions Code section 366.26, subdivision (c)(4)(B) was amended to state in part, “The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” (Stats. 2003, ch. 813, § 7.) Our Supreme Court observed, “Thus, under the Legislature’s amendment to section 366.26(c)(4), a juvenile court is not precluded from delegating to the appointed guardian the determination whether visitation is to occur between the parent and the child.” (In re S.B., supra, 32 Cal.4th at p. 1296.) The same is true here. The language in Welfare and Institutions Code section 362.1, subdivision (a)(1) does not preclude the juvenile court from delegating to the child the determination whether visitation is to occur.
Finally, the juvenile court did not abuse its judicial discretion in delegating to the child, who was eight and one-half years old when she testified at the adjudication hearing in chambers, the determination whether visitation is to occur. There is substantial evidence the stepfather: repeatedly molested the child; beat the child with a belt; and assaulted the mother in the presence of the child. Incredibly, the stepfather molested the child during a court ordered monitored visit. The child was afraid of the stepfather because of the prior violence and molestations. The foregoing factual scenario explains why the child’s best interests may be served by allowing her to determine whether visitation is to occur. One thing is certain, court ordered visitation hurt the child—she was molested during a court ordered visit. The juvenile courts are not instituted to issue visitation orders which are hurtful to young boys and girls. Government must help and nurture children—not hurt them. Without abusing its discretion, the juvenile court could have reasonably concluded that visitation should occur only when the child was ready, if ever, to be in the presence of her stepfather. To deprive the child of the option of determining whether a visit will occur pursuant to a court order when it is hurtful to her is not a course the Legislature had in mind when it adopted the visitation language in Welfare and Institutions Code section 362.1, subdivision (a)(1).