Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK70592, Jacqueline Lewis, Juvenile Court Referee.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, Acting P.J.
Joseph A. (father) appeals from the judgment of February 26, 2008, declaring his seven-year-old daughter, C., a dependent of the court under Welfare and Institutions Code section 300. He contends substantial evidence does not support the sustained jurisdictional allegations or dispositional order removing her from his custody. As substantial evidence supports the findings, we affirm the judgment and orders.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
C. lived in her mother’s home and had visitation with father pursuant to a family law court custody and visitation order. Father lived in the home of the paternal grandparents. The paternal grandparents’ household included C.’s 11-year-old paternal cousin, K., who had been living there since June 2007.
Mother and father separated in 2005 and were divorced in July 2007. They had three children. C. was the youngest. Parents had joint physical custody of C. C. and the middle child lived with mother, and the oldest child resided with father.
On October 21, 2007, C., then six years old, disclosed to maternal grandmother that K. had tried to put his penis in her mouth at father’s house that weekend. After an investigation, the Department of Children and Family Services detained C. from father and filed a section 300 petition.
I. Evidence at the Hearing on the Petition
A. The Reports
The dependency court received into evidence the detention report, November 2, 2007 Information for Court Officer with attachments, jurisdiction/disposition report with attachments, November 27, 2007 Last Minute Information with attachments, December 21, 2007 Last Minute Information with attachments, and January 22, 2008 Interim Review Report. These documents revealed the following.
The dependency court ruled it would not consider specified material in the reports that was irrelevant or hearsay of a declarant who was not made available to testify.
The Department’s reports were before the court. The reports, and hearsay contained in them, were admissible under section 355, subdivision (b). To the extent specific hearsay evidence was objected to, the hearsay declarants either testified or were made available to testify and father declined to call them. At trial, the dependency court stated it read and considered the report. The trial exhibit chart indicates the detention report, November 2, 2007 Information for Court Officer, and November 27, 2007 jurisdiction/disposition report were received in evidence. Father recognizes the reports were properly before the court: in his petition or rehearing, he stated the dependency court had reviewed the reports and documents attached to the reports in adjudicating the petition; and, in his statement of facts in the opening brief, he cites the reports extensively.
Maternal grandmother told the social worker that when she picked C. up from school on Monday, October 22, 2007, C. whispered in her ear and asked if she could tell maternal grandmother a secret. C. told her, “‘K. put his wiener to my mouth and told me to suck on it.’ . . . [‘]I pushed him away and didn’t like him anymore.’” C. told maternal grandmother she hated K. and did not want to go over to father’s home. C. stated she was afraid father would be mad at her if she told mother.
Maternal grandmother called mother and told her what C. had said. Mother went to maternal grandmother’s house to investigate. Mother reported that, although initially reluctant to talk, C. told mother that K. took her by the hand, led her into his bedroom, and closed the door. K. then unbuttoned his pants and exposed his penis to C. He put his penis into C.’s mouth and told C. to suck on it. C. told him, “‘No, I don’t like you anymore!’ [and] turned away from [K.]” K. then told C., “O.K., then go.”
Mother recalled that on a prior occasion, C. returned from a visit at father’s home and reported she had “seen [K.’s] pee pee.” C.’s 16-year-old sibling stated C. always got upset and urinated on herself when in father’s home. Mother reported that C. has been wetting the bed during visits at father’s home and crying and refusing to visit father ever since K. moved into the home.
Mother told father what C. had told her. Father was furious and denied it happened. He told mother he would prosecute her for harassment if she reported it. Father went to the police department in Santa Fe Springs on October 23, 2007, to file a report pursuant to Penal Code section 653m [annoying phone calls] alleging that mother called him and stated K. asked C. if she “knew how to suck a dick and then K. exposed himself by revealing his penis to C.” He also filed a request for a restraining order against mother in the family law court. The request was dismissed for lack of evidence. Father believed mother contrived the claim. He did not ask K. or C. about the allegation.
C. was reluctant to be interviewed by the police on October 22, 2007. When Officer Brent Anderson asked C. if K. had put his “pee pee” in her mouth, C. replied, “I guess not[,]” and refused to talk further.
C. was again reluctant to be interviewed by the police on October 26, 2007. She buried her face in mother’s lap and stated she was going to cry if the detective, Ralph Kremling, talked about K. When asked if she had ever seen K’s “wee wee,” she said she had seen it. When asked if K. had put his penis in her mouth, she said no. C. then started talking to mother, stating she needed to be protected from “K.’s pee pee. She said he holds his pee pee sometimes.” During the entire interview, C. was extremely reluctant to talk about the incident and stated repeatedly she was afraid of K. C. also stated she told K. he shouldn’t show his “wee wee” to people but he responded, “too bad, so sad.”
Detective Kremling reported that “while the child’s statement is inconsistent, she has disclosed to both himself and . . . Officer Anderson that [K.] has attempted to place his penis in her mouth while she was visiting at her father’s house.”
C. was extremely reluctant to be interviewed by the social worker. She “covered her head with a blanket and faced the corner. As the CSW attempted to question her about the allegations the child began to cry and continually stated she did not wish to talk about it.” After C. stopped crying, the social worker again tried to discuss the allegations. “The child again began to cry and repeated ‘I don’t want to’ in reference to talking about the alleged incident. The CSW questioned the child if [K.] has ever taken his pants off in front of her. The child stated he did not. The CSW then asked if the child [has] ever seen [K.] without his clothes on. The child again said no.”
C. was scheduled to visit father the evening of October 30, 2007. When informed she was to be taken to her father’s home, C. “began crying and sobbing [and] stated she did not want to go. . . . [She] stated she was afraid of [K.] . . . because he’s mean. The CSW asked her to explain what she meant by mean. The child again ceased to speak and ran to maternal grandmother[.] [Maternal grandmother] tried to comfort her and asked the child how is [K.] mean to you. The child then stated he wants me to touch his ding-ding, which the CSW heard.”
Since C. appeared to be comforted by the presence of maternal grandmother, the social worker re-interviewed C. in private with the maternal grandmother’s assistance. “The child at this point disclosed that [K.] tried to put his ding-ding in my mouth. The child was crying fitfully.”
Father stated to the social worker he did not believe C.’s disclosure. “[Father] stated he felt his daughter was being coerced by the mother to make the allegation so she could gain advantage in a custody dispute.” When asked to make a plan for that evening’s visit to mitigate any concerns about the child’s safety, father insisted the visit must take place at his home and refused to forego the overnight visit and have an evening visit instead.
As C. “shows signs of trauma including severe withdrawal, crying, and enuresis[,]” and father refused to collaborate in formulating an appropriate safety plan for visits with C., C. was detained from father’s custody in the home of mother on October 30, 2007. A section 300 petition was filed November 2, 2007.
Subsequent to the detention, although continuing to insist C. was making a “false accusation[,]” father stated he was willing to forego overnight visits in his home due to K.’s presence. C. did not want to go to father’s home because K. was there. Once visitation at paternal grandparents’ house ceased, C. stopped wetting her pants, but she still did not want to be left alone.
C. was even more reluctant to talk about the disclosure in the months after the petition was filed. When asked by a dependency investigator what K. did to her, she said she did not want to talk about it. She said “no” when asked if she had ever seen K.’s pee pee, if K. had pulled his pants down in front of her, and had tried to put his penis in her mouth. C. was friendly and talkative until asked about K., and then “she completely shut down and refused to talk further[]” until the subject was changed.
Father continued to state that C.’s report that K. tried to put his penis in C.’s mouth was completely false. He stated C. has been wetting her pants at his home since parents separated in 2005. Paternal grandmother agreed with father that C.s disclosure was untrue and mother wanted more money from father. She stated that C. had a very close relationship with father.
Father behaved in an aggressive, unreasonable, demanding, escalating, and threatening manner when his cooperation was needed to set a date and time for visitation.
Interviewed by Detective Kremling, K. denied the allegations and accused C. of making them up because she did not like him.
B. Forensic Evaluation of C., Attached to the December 21, 2007 Last Minute Information
C. was evaluated by a forensic psychologist to determine if she had been sexually abused. C. pointed to the genital area of a female figure and stated that “K.’s hand goes in there” over her clothes. This occurred in K.’s room. C. indicated that no other part of K.’s body touched C.’s body. C. spontaneously drew a female image and a male image. “Both drawings had the correct genitalia. C. then drew a line and an arrow from the male genitalia to the female genitalia. . . . C. wrote the word ‘No’ between the arrows pointing from the male genitalia to the female genitalia. When the evaluator inquired why she wrote this, C. said, ‘I touched’ and then pointed to the penis on the anatomical drawing of the male figure. She went on to say ‘K. put my hands on his’ and then pointed to the penis of the male image she had drawn on the white board.” After meeting further questions with silence, “C. then spontaneously turned to the two anatomically detailed drawings of the boy and girl and made the statement, ‘that’s me’ pointing to the girl figure, and ‘that’s K.’s body’ pointing to the anatomical drawing of the boy.” When asked if she told anyone K. had placed her hands on his genitals, C. stated, “‘I told Joe (father) and mom.’” When asked how father responded, C. stated, “Joe smacked K.” The evaluator concluded that, although the allegation of oral copulation was not part of her responses during the interview, “the consistency of [C.’s] statements about the ‘touching in the genital area’ from the time of the initial allegation and the fact that she does not contradict or embellish her allegation, does raise concerns as to her being at risk of sexual abuse.”
C. Testimony at the Hearing
C. testified she did not like K., who was mad at her for telling father on him, but she testified she did not remember what she told father. She did not remember talking to any of the people who interviewed her. C. did not want to testify, stating “I want my mama.” When asked why she testified K. was mean, C. testified, “Because he is doing something to me. [¶] Q. What is he doing to you? [¶] A. I can’t say it anymore.” Questioning was pursued. She testified K. had touched her in a way she did not like, and when asked where, she stated on her hands. She testified she slept in bed with father when she visited his home. She testified it made her nervous to think another little girl might spend time with K. She testified she told a secret to maternal grandmother, but when asked what the secret was, she stated, “I don’t want to tell you.” She testified she was afraid what K. would do to her if she went back to father’s home, but when asked what she was afraid K. would do to her, she testified, “Like just touch me on my parts - - on my hand.” She stated she did not know what a pee pee or wee wee was. She did not want to visit father because K. was there. She testified she never went to father when she was scared, felt sick, or got hurt.
Father testified he did not believe K. molested C. “If anything happened to C., she would come to me right away.” When she is upset about anything or hurts herself she comes running to him. Nothing would convince him that K. molested C. If C.’s two older sisters told father they had been touched by K., he would believe them. Father asked K. “generically” if K. ever did anything to C., and K. told him no. K. had already been interviewed by the police and social workers. He testified that when mother told him about C.’s allegations, mother threatened to report that K. molested C. if he did not start giving mother more money for support, just as mother had threatened before. C. wet her pants at least once a week during visits with father. During and after the protracted divorce proceedings, father had more than 20 instances of problems trying to get C. to visit with him, and he contacted the sheriff’s department and social worker on numerous occasions. Father testified that when he was first interviewed by the emergency response worker about changing C.’s visitation, father was willing to change the visits to take place outside of the home, but the social worker was not responsive. Ever since K. began living in paternal grandparents’ home in June 2007, C. was by father’s side the entire time, every time she visited father, with father or C.’s siblings watching C. at all times. “[A]t no time is C. and K. ever alone.” They were always supervised by father or the paternal grandparents. Father had a very hard time believing anything mother told him.
The social worker testified that when he interviewed C. in maternal grandmother’s presence, maternal grandmother asked C. why C. was afraid of K. C. then spontaneously began talking about K.’s “ding-ding.” The social worker interviewed K., and K. denied the incident.
The Department argued that K. violated Penal Code section 647.6, annoying or molesting a child under the age of 18. K. and C. are both members of father’s household, as the family law order gave joint custody of C. to both parents.
II. The Dependency Court’s Findings and Orders
On February 26, 2008, C. was declared a dependent of the court based on sustained allegations under section 300, subdivisions (b) and (d) that “On prior occasions [K.] inappropriately touched six-year old C. [C.] is extremely afraid of [K.], does not wish to have contact with [K.]. Further, . . . father failed to protect [C.] from [K.] and continues to refuse to protect the child. Such inappropriate touching by [K.] and father’s refusal to protect [C.] endangers the child’s physical and emotional well-being and creates a detrimental home environment.” Father declined to be present in court to hear the dependency court’s judgment. The dependency court found, “[C. was] one of the most reticent witnesses we have ever had. It took many continuances to get her to talk to us at all and when she finally did she was still very anxious about saying certain things, but what was clear to me from her testimony was that she feared K., that he had done something to her. I mean, she didn’t want to tell me more about that. [¶] Looking at the statement she’s made to other persons, I think it’s relatively clear that something sexually inappropriate happened. Exactly what, when and how is not so clear, again, given the age of the child as well as her own personal - - she’s very, very shy and the record I think bears that out. . . . [I]t is not unusual for a child this age to not want to share and not have a hundred percent recall of everything that happened, but her overall disclosure I find consistent. [¶] . . . I frankly was, in spite of the fact that I’ve been doing this case for a while, shocked at the father’s testimony and it wasn’t the words. It was the demeanor. One of the angriest witnesses I have seen in a long time. Not only did he not believe C., but nothing was going to make him believe C. He has never even asked to see the reports, her disclosure. I don’t know if he thinks it’s his job. [¶] I frankly am . . . just shocked by his complete disregard of wanting to know what happened to this child. I found his statements that he would protect her completely—I didn’t believe him because he has shown no desire to even know what happened to C., never mind protect her, and[,] . . . based upon his demeanor on the witness stand I couldn’t handle cross-examination by him. I can’t even imagine a six-year-old trying to tell this man that something happened to her. [¶] Regardless of how bad things are between the mother and the father, I’m not downplaying them. His total unwillingness to even consider that somebody could be hurting, his six-year-old daughter, is unbelievable and unacceptable and he really needs to reexamine his priorities because, clearly, his desire to protect K., from his demeanor on the witness stand, not only outweighs but far outweighs his desire to protect his own child.”
Custody was taken from father, and C. was placed in home-of-parent-mother. Father was ordered to attend conjoint counseling with C. when deemed appropriate by C.’s therapist, individual counseling to address case issues and sex abuse awareness, Parents Beyond Conflict or other approved parenting-together class, and a sex abuse awareness class. Father was granted at least twice weekly, unmonitored visits outside of father’s home, with K. not to be present. Monitored visits at father’s home were not allowed. The dependency court found that father’s progress toward alleviating or mitigating the causes necessitating placement was minimal. The dependency court found that before father can reunify, he must demonstrate an ability to meet C.’s physical and emotional needs and to provide stable, appropriate housing.
Father filed a request for rehearing of the referee’s judgment and orders. The request was denied. This timely appeal followed.
DISCUSSION
I. Substantial Evidence of the Allegations of the Petition
Father contends the evidence does not support finding C. comes within subdivisions (b) and (d) of section 300 because there was no evidence that: (1) father refused to protect C.; (2) K’s conduct was motivated by abnormal sexual interest, as required by Penal Code section 647.6; or (3) K. knew the wrongfulness of his conduct at the time he committed the acts, as required by Penal Code section 26. We disagree.
II. Substantial Evidence Standard of Review
“In reviewing the jurisdictional findings and the disposition [challenged on substantial evidence grounds], we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] 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. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “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.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
III. Statutes
Section 300, subdivision (b) provides in pertinent part: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child[.]”
Section 300, subdivision (d) provides: “The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his 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.”
Penal Code section 11165.1 provides in pertinent part: “As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following: (a) ‘Sexual assault’ means conduct in violation of one or more of the following sections: . . . 647.6 (child molestation). [¶] (b) Conduct described as ‘sexual assault’ includes, but is not limited to[:] [¶] . . . [¶] (2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person. [¶] . . . [¶] (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.”
Penal Code section 647.6, subdivision (a) makes criminal annoying or molesting a child under the age of 18. “[S]ection 647.6, subdivision (a), does not require a touching . . . but does require (1) conduct a ‘“normal person would unhesitatingly be irritated by”’ (citation omitted), and (2) conduct ‘“motivated by an unnatural or abnormal sexual interest in the victim”’ [citation].” (People v. Lopez (1998) 19 Cal.4th 282, 289.)
Penal Code, section 26 provides in pertinent part: “All persons are capable of committing crimes except those belonging to the following classes: [¶] One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.”
IV. Section 300, Subdivision (b) Allegation
A. Allegation Father Failed and Continued to Refuse to Protect C.
We reject father’s contention that substantial evidence does not support the finding father failed and continued to refuse to protect C. from K.’s inappropriate touching. The inappropriate touching took place at father’s home during visits under his supervision. At the time C. disclosed to maternal grandmother, C. felt she must keep the inappropriate touching a secret because she was afraid of how father would react to disclosure of K.’s conduct toward her. Father’s attitude toward C.’s complaint—essentially rejecting it out of hand without investigation—combined with C.’s fear of telling father, constitute substantial evidence that father failed to protect C. from K.’s inappropriate touching.
Regarding father’s continued refusal to protect C., father refused to acknowledge K. inappropriately touched C. At one point, C. told father, but when C. disclosed the touching to the maternal family, father denied knowing anything about it. Despite the fact that C. was extremely fearful of K., father denied that C.’s welfare required modifying his visits to exclude contact with K. Although he subsequently agreed not to have C.’s visits in his home, father never waivered from his insistence that C.’s disclosure was false or from his belief that mother engineered the disclosure. He tried to squelch investigation of the incident by seeking injunctive relief and criminal penalties against mother. At no time did he appear concerned about C.’s extreme fear of K. Father did not understand that C. never sought help or nurturance from father when she was afraid, felt sick, or got hurt. C.’s reluctance to visit father in his home because K. was there indicates she did not believe father would protect her from K. Father acknowledged that nothing would convince him that K. molested C., and he did not believe anything mother told him. Father displayed an angry, aggressive, threatening, escalating, demanding, and unreasonable demeanor when addressing the subject of K. molesting C. He did not ask K. specifically about the incidents. He never read the reports to find out what C. alleged and what information the investigations produced. These facts support a finding that father had no desire to learn what happened, ability to meet C.’s emotional needs, regard for C.’s welfare, inclination to believe any future disclosure, or understanding of the need to protect C. from K. The foregoing is substantial evidence father continued to refuse to protect C.
B. Father’s Remaining Contentions Regarding Section 300, Subdivision (b) Are Incorrect as a Matter of Law
Father does not contend the evidence is insufficient to support the factual findings under section 300, subdivision (b), that K. inappropriately touched C. on more than one occasion, and C. is extremely afraid of K. Nor does father contend that the evidence is insufficient to support the finding that father’s failure to protect creates a risk of physical harm under section 300, subdivision (b).
Father does argue that in order to establish jurisdiction under section 300, subdivision (b), the allegation of inappropriate touching requires evidence that K. appreciated the wrongfulness of his conduct and was “motivated by an unnatural or abnormal sexual interest. [Citation.]” Father is mistaken. He cites no authority for this proposition. Section 300, subdivision (b) focuses on the parent’s neglectful conduct in the face of a risk of harm to the child, not the mental state or criminal culpability of the perpetrator. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 820 [§ 300, subd. (b) consists of three elements: neglectful conduct by the parent; causation; and risk of serious physical harm or illness].) “[T]he paramount concern [of dependency proceedings] is the child’s welfare.” (In re Malinda S. (1990) 51 Cal.3d 368, 384.) The jurisdictional definitions of abuse and neglect in section 300 focus on the risk of harm to the child created by the parent’s conduct. (Sen. Select Com. on Children and Youth Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes and Child Welfare Services (1987-1988 Reg. Sess.) pp. 2, 5 [hereafter Sen. Select Com. Rep.].) Risk of harm to the child can result from the parent’s failure to adequately supervise the child. (Sen. Select Com. Rep. at p. 5.) “[T]he purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.) The risk of harm to C. from father’s failure to protect exists without regard to K’s mental state.
V. Section 300, Subdivision (d) Allegation
Father contends substantial evidence does not support the finding that C. comes within the jurisdiction of the court under section 300, subdivision (d) (sexual abuse). We need not address this issue, because we have concluded substantial evidence supports the jurisdictional finding under section 300, subdivision (b). Jurisdiction having been properly established, the sufficiency of the evidence of an alternative basis for jurisdiction is not necessary to resolution of this appeal. (In re Shelly J. (1998) 68 Cal.App.4th 322, 330; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)
VI. Substantial Evidence Supporting Removal From Father’s Custody
A child may not be taken from parental custody absent a finding by clear and convincing evidence that “[t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from [parental custody].” (§ 361, subd. (c)(1).) Father contends the finding that there were no reasonable means to protect C. is not supported by substantial evidence, because there was evidence father was cooperative about having visits outside his home, willing to participate in family counseling, and able to have overnight visits with C. in paternal uncle’s home. He contends the finding reasonable efforts were made to prevent removal is not supported by substantial evidence, because there was no evidence the Department looked into having visits in the home of the paternal uncle.
Father’s contentions are but a request to reweigh the evidence. This we will not do. (In re Matthew S., supra, 201 Cal.App.3d at p. 321.) Father was adamant nothing inappropriate happened. He did not believe C. and believed K, without having read the statements, interviews, or forensic evaluation in the reports. This supports the finding that father would not protect C. from K. The dependency court judged father’s credibility and concluded his claim he would protect C. was not believable. It is reasonable to infer from C.’s great anxiety about disclosing the abuse, C.’s history of not looking to father for help or nurturance, and father’s angry, bullying demeanor, that C. would not disclose to father if K. molested her again. There is evidence that, if C. disclosed to mother and mother tried to tell father, he would not believe her. This evidence amply supports the order removing C. from father’s custody.
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
I concur: MOSK, J., ARMSTRONG, Acting P.J.
I respectfully dissent.
In my view, the evidence is insufficient to support the findings that C. had been sexually abused as that term is defined in section 300, subdivision (d) or was at a substantial risk of such abuse, or that she had suffered, or there was a substantial risk that she would suffer, serious physical harm or illness as a result of Father's failure to adequately protect her. (§ 300, subd. (b).)
The evidence was that (at worst) C.'s 11-year-old cousin touched her over her clothes and put her hand on his penis. This was deemed "sexual abuse." Father did not immediately accept as true hearsay accusations which were ultimately found untrue by the dependency court and which were made by people hostile to him. This was deemed "denial," denial was deemed a failure to protect, and the serious physical harm element of section 300, subdivision (b) was ignored.
DCFS, which has a duty to act as an impartial arm of the courts and to gather all the facts (In re Valerie A. (2007) 152 Cal.App.4th 987, 1011-1012) instead set out to gather evidence to support Mother's and Grandmother's accusations. This is a dependency which never should have happened.
In his very first conversation with the social worker, Father said that he had supervised C. throughout the day in which the incident was alleged to have occurred. He had a full account of the day, in which he picked C. up at daycare and picked her sister K. up at school and took them to the dentist. Because the reports include medical information, we know that C. and K. were at the dentist that day, but the social worker made no attempt to talk to C. or K. or the adults in the house to verify or disprove Father's account.
The reports do include statements by C.'s sisters and K.T.'s grandmother that they had never observed anything improper in K.T.'s behavior, C.'s oldest sister's statement that C. had a tendency to make things up, and evidence of rivalry between C. and K.T., but the social worker had apparently decided to disbelieve Father's account of the children's day. We do not know why.
After C. twice told police that K.T. had not put his pee-pee in her mouth, and told the social worker that she had never seen K.T.'s pee-pee, the social worker left C. alone with Grandmother, then had Grandmother conduct an interview with C., both contrary to proper practices designed to prevent an adult from influencing a child. It was only then that C. said that K.T. had "tried to put his ding-ding" in her mouth.
The social worker testified that this deviation from proper practice was the reason for the forensic evaluation. In other words, DCFS did not believe that C.'s statements in this interview were reliable. How can they constitute substantial evidence for a finding?
In another example of the problems in the investigation of this case, the evaluator was given the wrong information about C.'s age. The evaluator believed that C. was five years old. She was almost seven.
Perhaps most troubling, the reports include almost no information about K.T. No social worker ever spoke to his sister or his grandfather, with whom he lived. On the sole occasion on which a social worker spoke to K.T., K.T. denied the incident. The social worker testified that he did not include that information in his report because he did not think it was relevant. When asked why it was not relevant, the social worker testified that "I would have expected K. to deny the incident." Again, we do not know why the social worker had this expectation, or why (other than bias) he had decided to disbelieve any denial by K.T.
This attitude toward K.T. has another aspect. Police asked Mother whether K.T.'s acts could have been innocent child play, she said that it could have been, but DCFS showed no awareness of possibility of childhood sexual play, a fact of child development which the law recognizes. (See People ex rel. Eichenberger v. Stockton Pregnancy Control Medical Clinic, Inc. (1988) 203 Cal.App.3d 225, 233-234.) Instead, DCFS wrote that K.T. had "sexually abused" his little cousin, thus treating him like a pedophile, that is, an adult with an abnormal sexual interest in children, rather than as the child he was.
No attempt was made to find out why an 11-year-old was a child abuser. Nor was there any attempt to help him, except for the almost unbelievable recommendation that Father "encourage and assist" him to enroll in a sexual abuse education program for predators. K.T. was 11 years old. Could the social worker spare no thought for him?
The dependency court was not much better, finding that Father had to "re-examine his priorities," because his "desire to protect K.T." outweighed his desire to protect his "own child." K.T. was not Father's "own child," but he was nevertheless a child in Father's home, and in my view, Father should be applauded if he treated K.T. as his own, especially considering the fact that K.T.'s mother was on active duty in Iraq.
Now to the evidence, or rather the lack thereof.
The majority errs when it writes that DCFS's November 2, November 27, and December 6 reports were in evidence at the section 300 hearing. They were not. DCFS asked to mark the reports for identification, and the court made that order. DCFS then asked to move the reports into evidence. They were rife with triple hearsay (Mother said that Grandmother said that C. had said that K.T. had said and done various things) and Father made hearsay objections. The court deferred argument and rulings on those objections until it had determined whether C. could testify. C. did testify (inconsistent with all that hearsay) and DCFS never again sought to move the reports into evidence. Father never had a chance to argue his hearsay objections. Because it is unfair, and a violation of Father's due process rights, we cannot consider those early reports as evidence in support of the judgment.
I must say, however, that even if those reports had been in evidence, I would reverse. Mother's statements about Grandmother's statements about C.'s statements include so many layers of hearsay as to be unreliable, especially in light of the fact that when asked, C. repeatedly said that K.T. did not put his pee-pee in her mouth. She said that to police, to the social worker, and to the evaluator. The only time she said anything to the contrary was when her grandmother questioned her.
The hearsay must also be put into context: Mother and Father had a highly contested divorce and police had been involved in enforcing custody orders. Grandmother did not like Father, or the custody arrangement – she said that to DCFS. Nor were Mother or Grandmother always accurate reporters. For instance, they both told DCFS that C.'s older sister A., who had chosen to live with Father, was angry and withdrawn and needed psychiatric evaluation. DCFS interviews with A. give no indication that this is true, and the record reflects that her grades were excellent and her teachers described her as an outstanding student who was a pleasure to have in class.
Dependency jurisdiction may be asserted under subdivision (b) if "The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . ." The majority finds a failure to protect in Father's "refusal to believe" C. – but Father did not refuse to believe C. He testified that he wanted to believe C., but was not allowed to talk to her. He "refused to believe" hearsay, a position with which the law has great sympathy.
After an evidentiary hearing, the dependency court dismissed an allegation that C.'s sisters were endangered because K.T. exposed his penis to C. and attempted to put it in her mouth, and found that it "was not so clear" what had happened. Yet, the court also faulted Father for wanting to talk to his child before he accepted as true the accusation Mother and Grandmother made.
Orders that a parent and child not discuss the dependency have an obvious purpose, protecting the child from coaching or harassment, but they have an obvious drawback, too. They prevent a parent and child from communicating.
The court essentially ruled that a parent in Father's position has only one choice, which is to immediately and automatically believe the worst accusations, whatever their source, without speaking to his child, and to immediately and automatically disbelieve the child who is alleged to have committed the offensive act, and to change the custody arrangements. The parent is not allowed to be angry about the situation, either.
The dependency court excoriated Father for his anger, and scolded him for being an uncaring father. The record establishes that Father exercised care and concern for all his children. He made a home for his 16-year-old daughter and sought joint custody of his younger girls. He paid child support. He spent time with his children and cared for them, picking them up at school and taking them to the dentist. When he heard these accusations, he went directly to the police, believing that C. had been coerced by Mother, and seeking to protect her from that coercion. Although he disbelieved Mother's allegations, he almost immediately agreed that he would see C. outside the home and offered to go into counseling with the children. His relationship with C. was such that she wanted to see him. Even Mother described him as a good father.
He did not deserve the scorn the dependency court heaped on him. I find that court's comments intemperate, unfair, untrue, and inappropriate. The law gives dependency courts enormous power over parents and children. In my view, such power should be exercised with courtesy and restraint.
There is another problem with the finding of a failure to protect, one which is not addressed in the majority opinion: what is it that Father is supposed to have failed to protect C. from? The majority says that Father did not raise the issue. In my view, he did, when he contended that the evidence was insufficient to show that he failed to protect C. "Failure to protect" and the serious harm which a parent must protect a child from are inextricably intertwined. Where is the evidence that C. had suffered or would suffer such harm? There is none.
Nor does the majority address the question of jurisdiction under subdivision (d). The majority believes that the question is irrelevant, given that the finding under subdivision (b) means C. would be in dependency regardless of subdivision (d). That analysis ignores this family's reality. A sustained finding that a child was sexually abused in Father's home or was at risk of such abuse could have enormous future ramifications for Father, for his other children, and for K.T. and his sister, who share a home with Father while their mother is serving her country. There is no substantial evidence for the finding, and I believe that we should say so.
Under section 300, subdivision (d), a child can be made a dependent child of the court only if "The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household . . . ." Penal Code section 11165.1, defines sexual abuse as sexual assault (or sexual exploitation) and defines sexual assault as conduct in violation of specified criminal statutes, or as conduct which is described in the statute or is similar to that conduct.
DCFS's theory below was that the inappropriate touching violated one of the listed criminal offenses, Penal Code section 647.6, annoying or molesting a child. That statute requires proof that the conduct is motivated by an unnatural or abnormal sexual interest in the victim. (People v. Lopez (1998) 19 Cal.4th 282, 289.) There is no evidence here that K.T. had such motivation. Without such evidence, there is no proof of violation of Penal Code section 647.6.
Nor is there evidence of violation of any of the other statutes referenced in Penal Code section 11165.1, or any evidence that any of the listed conduct, or any similar events, took place. There is no evidence of penetration or oral-genital contact was admitted. (Pen. Code, § 11165.1, subd. (b)(1)(2)(3).) There was no violation of Penal Code section 288, subdivision (c), which concerns lewd or lascivious acts on a child committed by a person at least 10 years older than the child. "[I]ntentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child," is on the list, but only when done "for purposes of sexual arousal or gratification." (Pen. Code, § 11165.1, subd. (b)(4).) Again, I see no evidence.
Nor do I see evidence that C. was at substantial risk of sexual abuse in the future. Given the complete lack of information about K.T., it cannot be said that he is substantially likely in the future to be motivated by an abnormal sexual interest in C., or to commit any of the listed crimes or acts.
Father was not present when the dependency court made its rulings. His lawyer said that he was at work. The court believed that his absence meant that he did not care about this case, though as far as I can tell, the evidence is that he cared very much.
Father will, at any rate, be able to read the rulings in this opinion. It will be clear by now that I find the court's comments unnecessarily harsh. This is not a father whose conduct should make him subject to the dependency system.