Opinion
A165525
04-12-2023
In re S. M., a Person Coming Under the Juvenile Court Law. v. MIGUEL G., Defendant and Appellant. SAN FRANCISCO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. JD21-3233
BURNS, J.
Miguel G. (Father) appeals after the juvenile court found that he had sexually abused then six-year-old S.M. The juvenile court took jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (b)(1) and (d), granted Susana M. (Mother) sole legal and physical custody of S.M., and then dismissed the dependency petition. Father challenges the sufficiency of the evidence to support the court's jurisdictional findings. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
Background
A.
Father and Mother are the parents of S.M. At the time the dependency petition was filed, they shared joint custody of S.M., having separated when she was three years old.
Six-year-old S.M. came to the attention of the San Francisco Human Services Agency (Agency) in October 2021, when she reported Father touched her private parts. The Agency filed a dependency petition on her behalf, pursuant to section 300, subdivisions (b)(1) and (d). The Agency alleged, in relevant part, that S.M. had been sexually abused by Father and that Mother failed to protect S.M. by failing to immediately report S.M.'s disclosures.
The Agency noted, in its detention report, that a social worker (Taryn N.) interviewed S.M. (alone) at school shortly after the referral was made. After S.M. agreed to tell the social worker the truth, S.M. was asked "if anyone had touched her in a way that made her feel worried, scared, sad, or confused[?]" S.M. answered," 'yes.'" When asked what happened, S.M. stated that Father touched her at night. When asked where on her body he touched her, S.M. said she was" 'nervous'" to talk about it. S.M. agreed to draw instead, and then drew a picture of Father. When asked again where on S.M.'s body her father touched her, S.M. pointed to her vaginal area and pointed to the crotch on her drawing.
S.M. was asked whether her father touched her or S.M. touched him, and she clarified that Father touched her private part. S.M. stated that this happened multiple times but most recently "yesterday." S.M. also reported sharing a bed with Father and then offered contradictory information, stating that Father does not touch her.
S.M. was taken to a hospital for a forensic medical exam. During the exam, while Mother was not present, S.M. told the examining physician's assistant that Father touched her private parts (without clothes on) and that the last time he did so was the night before. Mother reported the allegations to police later that day.
When the social worker interviewed Mother later the same day, Mother reported that, after a bath one week earlier, S.M. started playing with her breasts and Mother told her to stop. S.M. started crying and, when Mother asked her why, S.M. stated "[Father] plays with her like that." Mother stated that S.M. also disclosed Father put his hand in her pants to touch her bottom. Mother added that when S.M. came back from a weekend visit with Father, S.M. said Father touched her vaginal area. Mother was unsure if S.M. had clothes on at the time. Mother told S.M. to tell her teacher or her therapist about what happened.
When the social worker asked Mother why she did not immediately contact authorities, Mother responded that S.M. had said something similar once (a few years earlier when she was a toddler), and Mother talked to an employee at S.M.'s daycare about it. The daycare employee thought it was a misunderstanding and that a report was unnecessary.
The social worker also spoke with Mother's boyfriend, who reported that S.M. had recently disclosed to him that Father touched her private parts.
At the detention hearing, Father was declared S.M.'s presumed father. S.M. was detained outside of Father's custody and released to Mother, pursuant to a safety plan.
B.
The Agency's combined jurisdiction and disposition report advised that Father denied the allegations and told a social worker that he only used baby wipes to wipe his daughter's genital area (when she came to his house unbathed). Father also cried and stated that "he does not have a problem" and just wanted to care for S.M. Father accused Mother of trying to keep S.M. from him and told the social worker that Mother made similar sexual abuse allegations three years ago (in family court) but never reported the allegations to authorities.
Mother believed S.M.'s allegations were true. She told the social worker that S.M. was taking a shower when she suddenly became sad and stated Father touched her private parts. When asked how, the child disclosed she was sitting on the sofa with Father when he put his hand on her bottom. Mother also indicated that she herself had been sexually abused once (by a male relative) when she was around S.M.'s age. Mother acknowledged that she did not immediately know what to do when S.M. disclosed Father's inappropriate touching. She spoke to S.M.'s therapist about it, who guided Mother to report the allegations.
S.M. was in therapy, at the time she disclosed sexual abuse, because S.M. experienced frequent crying spells when transitioning to Father's care. She also verbally expressed not wanting to visit him. S.M.'s school also reported that, when the school year began, S.M. said she did not want to go home with Father. S.M.'s therapist reported a change in S.M.'s mood after contact with Father ceased.
When a social worker asked S.M. about visiting Father, S.M. stated that she never wanted to think about or see him again. When asked why, S.M. told the social worker" 'he touched my private parts in the night he would touch my private parts.'" Accordingly, the Agency recommended no visitation between Father and S.M.
C.
Shortly before the combined contested jurisdiction/disposition hearing, the Agency filed an amended dependency petition, which eliminated the allegations against Mother and alleged simply that Father touched S.M. on her private part and bottom.
The Agency filed an addendum jurisdiction and disposition report, which noted Mother "has been nothing but protective" with S.M. and "has met her needs both physically and emotionally." Accordingly, the Agency recommended the juvenile court sustain the petition, grant Mother sole custody of S.M., and thereafter dismiss the petition. Visitation with Father was not recommended because S.M. continued to insist that she did not want to see him.
S.M.'s therapist continued to report improvements after S.M. ceased contact with Father. The frequency of S.M.'s therapy had been decreased, and then terminated, because S.M. met her therapeutic goals.
D.
At the contested hearing, a recording of S.M.'s forensic interview was admitted into evidence. The forensic interview began with exercises that explored S.M.'s ability to tell the truth. S.M. promised to tell the truth.
When asked why she came to talk to the interviewer (Kelly L.), S.M. said "so I can [tell] you the true [sic] what happened." The interviewer then asked S.M. to "[t]ell . . . the truth about what happened." S.M. responded, "[m]y dad did something I don't like. He touched . . . my private parts. And that was terrible. He touched me here. [¶] . . . [¶] . . . And he touched me here and here." As she says this, the recording shows her gesturing to her crotch and to her chest.
S.M. said the touching happened on the couch. When asked to tell the interviewer more about the touching on the couch, S.M. initially responded, "Uh, . . . I don't know. I don't." But, in response to further questions, S.M. said the touching happened at night, more than once (but she did not remember when), that Father used his hand, that he touched her in the area she uses "to pee" underneath her pajamas (on her skin) "like I like him," and that the touching made her uncomfortable. Almost 20 minutes into the interview, S.M. stated she was tired, began to pretend to be a cat, and responded to the interviewer almost exclusively with "meow."
The social worker (Taryn N.) testified that she followed Agency protocol for sexual abuse referrals-by first interviewing S.M. alone (reducing any opportunity for parental coaching), by asking S.M. only open-ended questions, and by leaving more indepth questions for forensic interviewers. When she was interviewed, S.M. agreed to tell the truth and the social worker believed she understood the difference between the truth and a lie. The social worker testified that she had no reason to believe that Mother was coaching S.M.
Taryn N. explained that S.M.'s emotional response (along with the corroborating statements provided by Mother and the physician's assistant) factored into her belief that S.M.'s disclosure-that her father touched her private parts-was credible. S.M. was nervous at the beginning of the interview, did not want to talk about the touching, and only wanted to draw it. This led the social worker to conclude the conversation was difficult for S.M.
The nurse practitioner, Kelly L., who conducted S.M.'s forensic interview, testified that she followed a 10-step investigative interview protocol, which begins with instructions to help the child understand the need to clarify any misunderstandings and their obligation to tell the truth. This also allowed the interviewer to assess S.M.'s developmental stage. Kelly L. testified that S.M. acted in a developmentally appropriate manner, appeared to understand the questions, was consistent in her repeated statements of what happened, and that none of S.M.'s answers raised reliability concerns.
The Agency also called another social worker (Leticia B.F.) who repeatedly asked S.M. about visiting Father. When asked why S.M. refused to see Father, S.M. would either respond that she had already told Leticia B.F. or would say" 'because he touched my private parts.'" Leticia B.F. testified that, in these circumstances, it would be detrimental to S.M. to force her to visit Father.
Leticia B.F. also testified that she found S.M.'s disclosures credible. The social worker had no reason to believe that Mother coached S.M. to say Father touched her private parts.
Father called Mother to testify. Mother testified that S.M.'s first disclosure about inappropriate touching occurred when she was about two and one-half years old. At that time, all she said was that Father touched her private parts. Because S.M. was so young, Mother did not probe further.
Mother also confirmed that, in 2019, Father sought joint custody of S.M. In May 2021, their custody exchanges became complicated because S.M. did not want to go with Father. During these transitions, S.M. cried, ran away, said "no," and held onto Mother. It was these difficult exchanges that prompted Mother, in August 2021, to initiate therapy for S.M. Mother denied that she ever told a family court judge that Father sexually abused S.M.
Father testified that he never touched his daughter inappropriately. He stated that he and Mother do not get along well and that he sought joint custody (in 2019) because, after their separation, Mother did not allow him to spend enough time with S.M. Father remembered having to call the police during a custody exchange, in early 2021, when S.M. was crying and did not want to go with him. Later in 2021, Mother unsuccessfully sought sole custody based on an allegation that S.M. was dirty in Father's care.
E.
The juvenile court sustained the Agency's amended petition. In doing so, the court observed that the forensic interview video was particularly compelling evidence. The court also granted Mother sole legal and physical custody of S.M., declared visitation with Father detrimental, issued a restraining order prohibiting Father from contacting S.M., and then dismissed the dependency petition.
Discussion
A.
Father argues that the juvenile court's jurisdictional findings are not supported by substantial evidence because they were based solely on S.M.'s unreliable out-of-court statements. (See In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.) [juvenile court's jurisdiction findings reviewed for substantial evidence].) We disagree.
1.
At a jurisdictional hearing, the social services agency bears the burden of proving, by a preponderance of the evidence, that the minor is a dependent of the court as defined by section 300. (§ 355, subd. (a); I.J., supra, 56 Cal.4th at p. 773.) Section 300, subdivision (d), provides (in relevant part) that a child comes within the juvenile court's jurisdiction when "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused" by their parent or a member of the child's household.
Section 355, subdivision (b), provides that hearsay evidence contained in an agency's social study "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)." Section 355, subdivision (c)(1) makes such hearsay evidence insufficient "by itself" to support a jurisdictional finding "[i]f a party to the jurisdictional hearing raises a timely objection" and the agency thereafter fails to show an exception applies. One such exception, found in section 355, subdivision (c)(1)(B), is provided for when the hearsay declarant is a child under age 12 who is the subject of the jurisdictional hearing. In that instance, the child's statement is admissible unless the objecting party establishes it "is unreliable because it was the product of fraud, deceit, or undue influence." (§ 355, subd. (c)(1)(B).)
2.
Father did not raise a hearsay objection below and, on appeal, he does not challenge the admission of S.M.'s out-of-court statements. Instead, he argues they were insufficient to support the juvenile court's jurisdictional finding because they were uncorroborated and unreliable, considering Mother's and Father's custody dispute. We disagree.
Father's argument relies on two opinions from our Supreme Court- In re I.C. (2018) 4 Cal.5th 869 (I.C.) and In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.)-in which our Supreme Court imposed additional requirements (beyond those imposed by section 355) on hearsay statements of abuse made by truthincompetent children-i.e., those who are too young to testify due to their inability to distinguish truth from falsehood. (I.C., supra, at p. 875; Lucero L., supra, at pp. 1244-1248 (plur. opn. of Mosk, J.); Lucero L., at pp. 1250-1251 (conc. opn. of Kennard, J.).) "[A] child's out-of-court reports of parental abuse are admissible in evidence [at a jurisdictional hearing] regardless of whether the child is competent to testify in court," pursuant to section 355, subdivision (b). (I.C., at p. 875.) However, our Supreme Court held that a jurisdictional finding may not be based solely on such a truth-incompetent child's hearsay statements without violating due process, unless" 'the time, content and circumstances of the statement'" bear sufficient indicia of reliability. (Id. at pp. 886887, 890; Lucero L., at pp. 1231, 1244-1248 (plur. opn. of Mosk, J.); Lucero L., at pp. 1250-1251 (conc. opn. of Kennard, J.).)
I.C. identified a nonexclusive list of factors courts may consider in determining whether a child's hearsay statements satisfy the reliability standard, "including: '(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate.'" (I.C., supra, 4 Cal.5th at p. 891.)
Although it is not determinative," 'the child's ability to understand the duty to tell the truth and to distinguish between truth and falsity'" is another factor that may be considered. (Ibid.) The overarching consideration is" 'whether the child declarant was particularly likely to be telling the truth when the statement was made.'" (Ibid.)
Here, the I.C. and Lucero reliability requirements do not apply. First, our Supreme Court's indicia of reliability test applies only to hearsay statements made by children who are unavailable to testify because the children were truth incompetent. (I.C., supra, 4 Cal.5th at pp. 877, 879, 888-889 &fn. 5 [respondent conceded that three-year-old not qualified to testify]; Lucero L., supra, 22 Cal.4th at pp. 1231, 1234, 1247-1248 (plur. opn. of Mosk, J.) [parties stipulated that three-and-one-half-year-old incompetent to testify].)
S.M. was about twice the age of the children involved in I.C. and Lucero L. (I.C., supra, 4 Cal.5th at pp. 881-882; Lucero L., supra, 22 Cal.4th at pp. 1231-1232 (plur. opn. of Mosk, J.).) And the juvenile court did not find (nor is there any evidence) that S.M. was unable to distinguish truth from falsehood. Given that Father did not call S.M. to testify at the jurisdictional hearing, much less question her competence to differentiate truth from falsehood, the record does not support his claim that her out-of-court statements were subject to additional scrutiny under I.C. and Lucero L.
Second, S.M.'s out-of-court statements that Father molested her are not the sole support for the juvenile court's finding. Her statements are corroborated by other evidence. (See I.C., supra, 4 Cal.5th at p. 875 [absent indicia of reliability "juvenile court may not base its findings solely on the hearsay statements of a truth-incompetent child"], italics added; In re Dorinda A. (1992) 10 Cal.App.4th 1657, 1660-1664 [four-year-old child's communication of her fear of father when closed in a room with him, along with evidence of unusual sexualized behavior, constituted substantial evidence of father's sexual abuse].)
Here, it is undisputed that (just a few months before disclosing Father's inappropriate touching) S.M. complained-not just to Mother but also to her school-of not wanting to visit Father. It was also undisputed that S.M. experienced significant distress when transitioning to his care. Father suggests S.M.'s distress was fabricated as part of Mother's plan to disturb the family court's custody arrangement. However, there are other reasonable inferences to be drawn-especially when considering S.M.'s rapid improvement (and discharge from therapy) shortly after she was detained from Father's custody.
Although S.M.'s account of Father's abuse varied somewhat (in the details of what body parts were touched) from Mother's account of what S.M. disclosed, S.M. herself consistently told the forensic interviewer, the medical examiner, and two social workers essentially the same thing-that Father touched her vaginal area or "private parts." In repeatedly stating this during her forensic interview, S.M. was responding to open-ended questions by a trained interviewer. She also demonstrated by gesturing to her genitals and to her chest.
There is conflicting evidence-Father's denial of the allegations; evidence that Father and Mother had a poor relationship in which custody was fiercely contested; and the fact that S.M. told Taryn N. that Father had not touched her (at the end of the initial interview). And Father argues that he was set up by Mother, who planted false allegations to obtain sole custody. However, the record contains no evidence of any actual coaching by Mother. And both Mother and Father testified before the juvenile court. The juvenile court did not find Father's testimony credible. The weight to be accorded conflicting evidence was a determination for the juvenile court to make. It is not our role to reweigh the evidence. (I.J., supra, 56 Cal.4th at p. 773.)
Father has not met his burden to show that the juvenile court's jurisdictional finding, pursuant to section 300, subdivision (d), is not supported by substantial evidence. (See In re A.M. (2010) 187 Cal.App.4th 1380, 1388.) We need not consider whether substantial evidence also supports the juvenile court's alternative finding under section 300, subdivision (b). (See In re M.W. (2015) 238 Cal.App.4th 1444, 1452.)
Disposition
The judgment is affirmed.
SIMONS, ACTING P.J., LANGHORNE, J. [*]
[*] Judge of the Napa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.