Opinion
A151883
06-06-2018
In re D.E., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. D.E., Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on June 6, 2018, be modified as follows:
On page 24, add footnote 19 at the end of the last paragraph before the Disposition, which will read:
In his petition for rehearing, Father urges us to address his argument that the juvenile court erred in failing to order the Agency to conduct an ICWA inquiry. Father's bare assertions, without more to substantiate them, were insufficient to trigger the inquiry requirements of ICWA. (See, e.g., In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467 [mother's inability to identify tribe or nation and failure to provide any contact information to substantiate her unsupported belief insufficient to invoke ICWA; family lore alone is insufficient to give court reason to know a child is an Indian child].) However, because the juvenile court's duty to inquire whether D.E. is an Indian child is both "affirmative and continuing" (see In re Isaiah W. (2016) 1 Cal.5th 1, 9), if as this case progresses Father can identify a family member and a tribe or nation to support his belief he might have Indian
ancestry, the court should order the Agency to conduct and inquiry and/or issue adequate notice. Because the current record contains no information suggesting D.E. or any of his relatives is a member of a tribe or eligible for membership, we uphold the court's ICWA finding.
There is no change in judgment
The petition for rehearing is denied. Dated:
/s/_________
Dondero, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. JD-027488-01)
This is an appeal from Welfare and Institutions Code section 300 jurisdictional and dispositional orders entered against D.E., Sr. (Father). The juvenile court assumed jurisdiction over Father's son, D.E., Jr. (D.E.) and his son's three older half siblings after finding that Father had sexually abused them. The court removed D.E. from Father's custody and ordered the Alameda County Social Services Agency (Agency) to provide reunification services. Father contends the jurisdictional and dispositional orders are not supported by substantial evidence. He also asserts the orders are improper because the Agency did not comply with the Indian Child Welfare Act notice requirements. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Detention
On November 9, 2016, D.E., a 12-month-old boy, along with his three older half siblings, were taken into custody by officers with the Oakland Police Department and placed in foster care. D.E's siblings are L.M., then age nine, L.R., then age five, and I.B., then age two. The detention occurred after Y.H. (Mother) was arrested for domestic violence against Father, who was also arrested due to Mother's allegations that Father had sexually abused the children. II. Dependency Petition Filed
On November 14, 2016, the Agency filed a dependency petition under section 300 for D.E. and his three half siblings. The allegations under section 300, subdivision (b) alleged that Father sexually abused the children, and that Mother failed to protect them from his abuse. It was also alleged that she was arrested as the perpetrator of domestic violence against Father. Under section 300, subdivision (d), there were three allegations against Father, accusing him of sexually abusing the three older children, forcing them to watch the abuse and to touch one another inappropriately, and allowing six other individuals to abuse the children. Under subdivision (g), the Agency alleged Mother was incarcerated and that the ability of the alleged fathers of the three older children to care for their children was unknown. III. Detention Report and Hearing
The children have the same mother but different fathers. Neither Mother nor any of the alleged fathers are parties to this appeal.
Section 300, subdivision (b) permits jurisdiction when "[t]he 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 . . . ." (§ 300, subd. (b)(1).)
Section 300, subdivision (d) permits jurisdiction if "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused . . . by his or her parent or guardian or a member of his or her household . . . ."
On November 15, 2016, the Agency filed a detention report, recommending that the children be detained. Reportedly, Father had come to Mother's home when the minors were there and they all had fallen asleep in the morning. When Mother woke up in the afternoon, she noted Father had gone to the kitchen to get food. L.M. said that Father had been " 'doing more' " than going to the kitchen while Mother was asleep. Mother "said she had a camera set up to monitor [Father] with a motion sensor however there was 'a blind spot' in which she could not see [him]."
Mother said Father had " 'raped' " the children. The family had gone to Children's Hospital to get medical exams to determine "what had happened" between Father and the minors, but "they 'missed' their appointments." Mother said she and the children had previously made sexual abuse allegations against Father in July 2016, but " 'nobody believed us' " and Father had not been arrested. Father denied sexually abusing or molesting any of Mother's four children " 'especially my son.' " He stated that he did not feel his son should be with Mother because " 'she is unstable,' " and indicated that he had lost his job as a result of her allegations. He also said he had been released from jail and the district attorney had dismissed the charges stemming from the November 9, 2016 arrest.
There was an investigation of sexual abuse by Father in July 2016. L.M. and L.R. were interviewed by child abuse specialists and the allegations were reportedly deemed inconclusive.
L.M. told a social worker that the most recent incident of sexual assault by Father was the previous Sunday. Mother had installed cameras in the home and had noticed Father "suspiciously going into the children's rooms but had no proof." The incident on Sunday had occurred in the living room, and "there are no cameras in the living room." L.M. said Father had been " 'raping' " the children for more than a year, estimating this had occurred more than 90 times. He said that Father would "rape" them every time Mother went to work or to sleep. Father would put his penis and his fingers in L.M.'s butt. Father also would make him watch as he raped his brothers and sister.
L.M. also said that Father had allowed six other people to rape them while Father watched. He identified the other people as Father's god brother D., Father's own father, O.C., and Father's friends K.Y., W., and some other man that L.M. could not name. Father also took them to O.C.'s home in Stockton and raped them, and O.C. raped all of them in that house.
All four children were taken to Children's Hospital for SART exams; however, the only finding for any of the children was a slight small tear in the anus of D.E. The doctor said the tear could have been caused by a hard bowel movement.
"SART" stands for Sexual Assault Response Team.
At the detention hearing on November 15, 2016, D.E. and the other three children were detained. Father was elevated to presumed father status. IV. Jurisdiction/Disposition Reports
A. First Report
On December 1, 2016, the Agency filed its jurisdiction/disposition report, recommending that D.E. be declared a dependent and that services be offered to Father. Police officer Mark Douglas reported that L.M. and L.R. had participated in multiple CALICO interviews. He expressed concern that the Agency had allowed Mother to telephone the minors while in their foster placement. Douglas indicated that during the interviews both minors had disclosed that they were sexually assaulted by Father; however, their accounts did not corroborate each other, nor did either boy corroborate his own prior statements. Mother was reportedly "always trying to track" Father using his Google account, and had made " 'a bunch of accusations' " against him. Douglas concluded Mother had " 'no credibility,' " and opined that " 'the only thing [Father] is guilty of is poor judgment and going back to [Mother.]' " Attached to the Agency's report are the police investigation reports concerning the July 2016 and November 2016 allegations against Father, which we summarize below.
"CALICO" stands for Child Abuse Listening, Interviewing and Coordination.
L.M. reportedly stated that between 2:00 a.m. and 4:00 a.m. on July 8, 2016, he was in his bedroom with L.R. and I.B. Father was watching them while Mother was at work. L.M. woke up to find Father inside of the bedroom. He saw Father remove L.R.'s pajama bottoms and touch L.R.'s leg. When L.M. told him to stop, Father punched him once in the back with a closed fist. Father told him that if he told anyone about the incident he would take his brother away. He then removed L.M.'s pajama bottoms and his underwear and began touching his buttocks with his hands. He exposed his own genitals and began to masturbate and attempted to insert a finger into L.M.'s rectum. L.M. kicked Father and told him to stop. Father went to the bathroom and cleaned his hands with hand sanitizer. He also cleaned his genitals with a sanitary wipe. L.M. told Mother about the incident the next day. He stated this was the first time that anything like this had occurred.
L.M. also said that on November 6, 2016, he was in the living room with L.R. and I.B. watching TV when Father approached him as he sat on the couch. L.R. and I.B. went to the kitchen to get some cereal. Father then touched L.M.'s penis under his underwear. He rubbed L.M.'s penis with his hand for at least 30 seconds. He then made L.M. pull off his pants. Father got naked and told L.M. to stand up and to bend over. Father then put his penis inside L.M.'s anus. This went on for about 20 minutes. Father did the same thing to L.R., and also put his penis inside I.B.'s vagina. She was crying and Father covered her mouth with his left hand. After he was done, Father washed himself in the kitchen.
Regarding the July 2016 allegations, Douglas evaluated L.M.'s two July 2016 CALICO interviews and concluded the boy "did make disclosures; however, it appeared that [Mother] had influenced/coerced [him] into making a disclosure. Douglas came to the same conclusion regarding L.R.'s July 2016 CALICO interview. Douglas had searched Mother's cell phone with her permission, and "[u]pon looking at the data, I came across a video and an audio recording that appeared to reveal [Mother] coaching both [L.M. and L.R.] while asking them both a series of leading questions."
The physician who examined the children concluded the medical findings were consistent with the disclosure of inappropriate touching only. Douglas noted that Mother insisted the children had been sodomized, "which contradicts Dr. Crawford's medical notes."
The police investigation reports also stated that Mother had previously made a number of sex abuse allegations against other individuals, including accusing L.M. of having molested his younger sister, accusing various men of raping her children, and accusing her 10-year-old sister of molesting one of Mother's children. Each of the accused adults denied any involvement with the children. Mother had accused the man named W., a former friend of Father's, of molesting the children at his apartment. However, W. demonstrated that at the time of the alleged incident he no longer lived at the address where Mother claimed the molestation occurred. W. also said he had not spoken to Father since either September or December 2014. The mother of the accused 10-year-old (who is Mother's own mother) explained that she had cut off contact with Mother because she "is losing her damn mind."
Father provided a statement in which he explained that Mother had previously accused him of molesting the children as she held a pair of scissors to his throat while asking L.R. if Father had abused him. Father did not understand why Mother kept exposing him to her children if she thought he had molested them. He explained that the only reason he continued to have contact with Mother was so he could see his son.
On or about July 9, 2016, the head of security at Mother's apartment complex witnessed Mother and an unknown male "punching and beating" Father. Father was left unconscious, and was hospitalized. The witness had "dragged [Father] into his apartment and then called the police." Mother had worked for the witness's security company, but the witness had to fire her because "she appeared to be unstable and paranoid."
The Agency's report indicated that a mental health counselor had seen L.M. and L.R. for a few sessions. She described them as " 'great, resilient kids' " in need of "long term therapy to address trauma." L.M. was described as " 'very depressed.' " L.R. had previously been described as "depressed" and presenting with " 'suicidal ideation.' "
B. First Addendum Report
On March 1, 2017, the Agency filed an addendum report. The Agency stated that Mother's visitation with the children was concerning. During a recent visit, she questioned the boys about being hit by the foster mother and told them they would be moved to another foster home if they did not "start behaving." She later accused L.M. of hitting L.R. and called the foster mother to advise that she send L.M. to juvenile hall. That same week, she said she would not visit with the children if L.M. was present. In the weeks that followed, Mother became upset with the visitation staff and her visits were placed on hold.
In contrast, Father's visits with D.E. were going well. Father played with D.E., held him, changed his diaper, and fed him a bottle. The child was described as "calm and comfortable" with Father. During one visit, D.E. "slept peacefully and took a nap on [Father's] chest." Other than some missed visits, no problems were reported. The therapeutic visitation supervisor wrote, "Father appears to care for and remains engaged with minor throughout their time together" and "I have not seen any evidence of any abuse."
Mother's other children continued to receive mental health services. L.M. and L.R. were diagnosed with PTSD, and L.R. also showed signs of anxiety. Both boys were wetting the bed at night. They also said that they had been hit by their foster mother, though the allegation was investigated and determined to be unfounded. The boys' clinician recommended that they receive therapy for such behaviors as lying, as well as for their PTSD symptoms of enuresis, nighttime hypervigilance, dissociative behavior, numbing, fighting, anxiety, and drinking water at night.
C. Second Addendum Report
On June 30, 2017, the Agency filed another addendum report. The Agency recommended the children be declared dependents and that services be offered to Mother and Father. Reportedly, the children had been placed with their maternal great-grandmother, E.H. E.H. had been supervising visits with Mother, but stated that she would no longer be able to so due to Mother's behaviors. These behaviors included videotaping the condition of E.H.'s home, sending the police to her home, and using foul language.
L.R. had told Mother that L.M. had been on top of I.B. L.R. later said he made the story up because he was mad at his brother and was jealous of him. Sometime after that, L.M. assaulted his caregiver by punching her in the eye. Meanwhile, Father had missed several visits with D.E. V. Contested Jurisdiction/Disposition Hearing
At the contested jurisdiction/disposition hearing, four videotaped CALICO interviews were played in the courtroom without objection. Transcripts of the interviews were provided. The videos were from L.M.'s interviews on July 13, 2016, July 15, 2016, and November 16, 2016, as well as an interview of L.R. that occurred on November 16, 2016. Additionally, Douglas and the Agency's social worker testified at the hearing.
At the March 2, 2016 hearing, after stating his position that Father had not engaged in any sexual abuse, Father's counsel stated: "My understanding is that we're hearing CALICO interviews, or watching CALICO interviews today. I'm happy to do that."
A. L.M.'s July 13 , 2016 CALICO Interview
L.M. stated that he was at the interview because Father "was touching us inappropriately." He said the last time Father touched him was on July 9, 2016. He said he remembered the date because that was the day his twin sisters were born. When asked for the details of what occurred, he began by stating that Mother had a phone that was recording in his room, but it kept unplugging and went dead. When it was charging, the recording was activated and there were little chunks of recording. He then related that he had been in his bed watching TV and trying to fall asleep. L.R. and I.B. were sleeping in the room with him. Father came into the room and said "[d]on't tell" or he would hurt Mother and take D.E. away. He then pulled down L.R.'s pants and "started touching him inappropriately" by placing his hand on the boy's penis.
Father said, "I'll be back," and went into Mother's room (Mother was away at work at the time) and brought some baby wipes to the room to clean himself. Then he pulled down L.M.'s shorts and underwear and sprayed the underwear with water in the bathroom. Father came back and tried to touch L.M., who kicked him. L.M. was lying on his stomach. Father rubbed L.M.'s butt and tried to get his finger "up the middle." L.M. kept clenching his butt so Father could not go inside, but some of his fingers went inside and it hurt. Father also flipped the boy over on his back to reach his penis. He rubbed and pulled on L.M.'s penis. Father then went over to I.B. and touched the girl's vaginal area after taking off her diaper. Afterwards, Father used the baby wipes to wipe his hands and L.M.'s butt and penis in order to take off the smell of his cologne. Father gave L.M. back his underwear. Later that night L.M. saw Father playing with D.E.'s penis while he was changing a diaper.
L.M. claimed that Mother had set up the phone to record the incident because she "had a feeling in her gut that something was going down like that." After the incident, he and Mother listened to the recording, which only had heavy breathing on it. Mother asked L.M. to tell her the truth about what had really happened. He told her what had happened to him that night, but did not tell her about Father touching the other children because he was scared Father was going to take the baby. Later that day, Mother and L.M. went to Father's mother's house and L.M. told her what had happened. He told her because Mother said everybody needs to know. He was scared because he thought Father's mother would not believe him, but she did. He also told his cousin.
During the interview, L.M. stated that Father had touched him inappropriately on five prior occasions, starting when he was eight years old. A few months before the July 9 incident, L.M. had just gotten out of the shower and only had on his underwear when Father told him to come into Mother's room and sit with him on the bed to watch a Star Wars movie. He put his hand in L.M.'s underwear and rubbed his hand in a circle around his penis. During this time, he was feeding D.E. with a bottle in his other hand. When L.M. tried to get away, Father dropped the bottle and grabbed him and kept touching him. L.M. did not tell anyone because Father said he would hurt Mother if he did.
B. L.M.'s July 15 , 2016 CALICO Interview
L.M.'s second July 2016 CALICO interview occurred after Mother reported the incident involving Father and multiple other men in W.'s apartment. L.M. stated that Father had taken him to get a haircut, after which he took the children to W.'s and K.Y.'s house, where "they started messing with us." L.M. said this incident had occurred on November 7, 2015, when Mother was in the hospital for D.E.'s birth.
L.M. stated that D., who is Father's brother, had cut L.M.'s and L.R.'s hair, after which D. accompanied them to W.'s house. When they arrived, W., K.Y., and Father went into a room and did something, and then they came out into the living room and started bothering the children. However, at another point during the interview L.M. also stated that after the men came out of the room, Father and the children left. He also said that rather than having come from the barbershop, they went to W.'s house from their home after they had changed their clothes following a water fight in the park.
L.M. further described exiting W.'s bathroom to find the men touching L.R. on his bottom. They then took off L.R.'s pants and "put their private in his butt." W. had done this while Father and K.Y. held L.R.'s arms. Afterwards, they took off I.B's diaper and started touching her. L.M. tried to push K.Y. off his sister, but K.Y. punched him in his stomach. After that, K.Y. started touching L.M.'s butt. L.M. then said that K.Y. "did the same thing he did to my brother, he did the same thing to me." Father and W. held him up while K.Y. "put his private in my butt." Afterwards, L.M. had pain on the inside of his bottom. His stomach was hurting and he threw up. Then they put their clothes back on and left after W. kicked them out because L.M. had thrown up on the couch. L.M. later recounted a different version of the same story, saying Father had pulled on L.M.'s penis before the men went into the room.
L.M. also stated that the family went camping with Father's father the next day. Mother had to leave to get baby diapers and Father's father "started to touch us inappropriately." They were in a cabin at that time, and Father's father rubbed L.R. and L.M. next to their penises.
L.M. said he did not discuss the incident at W.'s house during his prior CALICO interview because they had threatened to harm Mother. He said Mother recently asked him if anyone else had bothered him, and he told her about what happened at W.'s house. This conversation occurred in the car while they were on the way to this second CALICO interview. When questioned about the timing of his disclosure, he said the reason Mother brought him to the second interview was not because of the incident at W.'s apartment. It was "[b]ecause she was still remembering some more stuff that um, I didn't tell." He also said he had wanted L.R. to be with him during the interview because L.R. would remind him of all the names of the people. He had forgotten the names when he was with Mother in the car, but L.R. had remembered: "He said [W.], [K.Y.], [Father], and his dad and his brother."
C. L.M.'s November 16 , 2016 CALICO Interview
During his November 16, 2016 interview, L.M. said that Mother had let Father back in the house and he had raped them last Sunday. Mother had kicked Father out before, but he kept calling and then came over with his stuff and asked if he could move in. He moved back in October around Halloween. He had been fired from his job, so he just stayed home. L.M. did not want him there because of what he had done.
After Father moved back in, there was an incident in the living room. L.M. was watching TV on the couch. Mother was sleeping. Father sat next to him on the couch and touched L.M.'s privates. L.M. was trying to go to his room, but Father was holding him with his arm. Father pulled down his pants and L.M. tried to leave but Father grabbed him by his shirt. L.M. did not call out to Mother because she would have started hitting Father and then she would have gone to jail. Father pulled down L.M.'s pants and pulled him close to him and put his private in L.M.'s butt. He also put a balloon on his private. L.M. had seen this kind of balloon before when Father's father raped him at his house in Stockton. When Father put his private inside L.M.'s butt, it hurt. He did it for about 10 minutes. When Father was done he threw the balloon in the garbage.
Then Father called for L.R. to go into the living room. L.M. did not know what had happened to L.R. Father called I.B., and as she went to him the brothers grabbed her and told her not to go but she went out of the room. Later she ran back into L.M.'s room and she was crying and she said, "[Father] did it." The next day Mother found out because she kept looking at her camera. She saw footage of them running back into his room and she knew Father was there. She asked if Father had raped them and L.M. said yes. Then they went to the hospital. Mother and Father argued because he kept denying what L.M. had told her.
L.M. then said he had told the police he actually saw Father raping his siblings because Father had also abused them that morning. At this point the interviewer stopped him and asked him why he had not mentioned that incident of abuse before. L.M. responded that the abuse had happened "once," but it was during the whole day. It actually happened two times, in the morning and in the evening. Father had sat next to them on the couch and touched all of the children's privates. L.M. did not tell Mother because Father said he was going to hurt them.
L.M. also reported that Mother had recently whooped him with a belt. Mother thought L.M. had raped his little sister. This made him feel really bad because he did not do it. L.R. had lied and said that he raped the younger children, but L.M. told his mother he did not. Later L.R. admitted L.M. did not really do it and Mother asked L.R. why he had lied.
D. L.R.'s November 16 , 2016 CALICO Interview
During his interview, five-year-old L.R. said that he had seen pictures and videos of a boy raping a boy. Mother and/or L.M. had played the video for all the children because Mother said if his little brother's dad did that to them, they could kill him or she could put him in jail. L.R. said the last time he got raped was 20 months ago by Father, whom he identified by his full name. When told that L.M. had said something had happened in the living room, L.R. said, "I don't know that time." Then he said one morning when Mother was asleep, Father had "raped" him in the living room by putting "his winkie inside my butt." Then L.M. got raped too. This happened on the couch. When he was told that L.R. had told a different story, he became quiet.
L.R. said if he were to tell the interviewer certain things, Mother would get mad and "she would just whop us." When asked if he had told Mother that L.M. had done something, he denied it. He said Mother would yell at him and whop him when he wet the bed. He also saw Mother "almost choke [Father]" and he saw her "put scissors to his throat." She did this because Father had raped them in the hotel while Mother was outside.
E. Douglas's Testimony
Douglas testified that an audiotape and a video of Mother speaking to L.M. was taken from Mother's cell phone on July 21, 2016. On the video, Mother interviews L.M. and asks him leading questions. When he says that that Father did "nothing else," she responds multiple times saying "what else." When he says "that was it," she asks: "[W]hy are you acting like you're scared to tell me? [W]hat did he say . . . he was going to do to you or to me or to your brother?" The audiotape was of Mother questioning L.R. while L.M. was giving his second CALICO interview. When L.R. states that he does not remember something, she threatens three times not to get him a promised video game player. Douglas's impression was that Mother had influenced L.M. and L.R. into making disclosures.
Douglas had asked Mother to refrain from asking the boys any questions about the abuse, but there were instances when she did question both of them. She had also driven L.M. to the address of the apartment where the children had allegedly been abused by multiple men, including K.Y. and W. Douglas presented the case to the district attorney, but it was not charged "due to insufficient evidence," and the investigation is now closed.
F. Social Worker's Testimony
The social worker testified that she had spoken to Douglas. He had not provided any additional information regarding any other evidence of assaults against the children. The Agency conducted its own investigation, but she did review his investigation and took it into consideration. During her investigations, she did not uncover anything that contradicted Douglas's investigation. VI. Juvenile Court Ruling
On July 10, 2017, the juvenile court issued its ruling. The court acknowledged that this "is a really difficult case." The court noted the children's physical exams indicated that "there wasn't really any evidence of the type of sexual abuse that the children talked about." However, after carefully considering the boys' CALICO interviews ("I have gone over and over the children's CALICO interviews") the court concluded: "I mean, it's very clear that — at least in my mind that the children had these experiences, and that [Father] was involved in those experiences that the children had." The court found all of the petition's allegations to be true. The children were declared dependents of the court and removed from the custody of their parents. Family reunification services were ordered for Mother and Father. Father's appeal followed.
DISCUSSION
I. Standard of Review
A parent may seek review of both the jurisdictional and dispositional findings on an appeal from the disposition order. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.) When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, all conflicts are to be resolved in favor of the prevailing party and issues of fact and credibility are questions for the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.)
"It is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citation.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
"However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, '[w]hile substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].' [Citation.] 'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' " (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) II. Substantial Evidence Supports the Juvenile Court's Jurisdictional Finding
A. Contentions on Appeal
Father contends the Agency failed to prove by a preponderance of the evidence that any sexual abuse occurred. His principal argument on appeal is that the juvenile court erred when it relied on hearsay statements made by L.M. and L.R. to support jurisdiction. In addition to emphasizing evidence that conflicts with the boys' accounts, he asserts their statements did not meet the evidentiary requirements of In re Cindy L. (1997) 17 Cal.4th 15, 28-29 (Cindy L.). We address that assertion first.
Father does not contest the Agency's domestic violence allegations. An appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) When, however, "the outcome of the appeal could be 'the difference between father's being an "offending" parent versus a "non-offending" parent,' a finding that could result in far-reaching consequences with respect to these and future dependency proceedings, [it is] appropriate to exercise our discretion to consider the appeal on the merits." (In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)
B. Cindy L. Does Not Apply to This Case
It does appear that the juvenile court's jurisdictional finding regarding Father rests almost entirely on the arguably uncorroborated out-of-court statements of L.M. and L.R., primarily the accounts related by L.M. The Cindy L. court acknowledged that a child's hearsay statements (in that case, contained in the social workers' reports) are admissible during dependency proceedings. However, if the child is unavailable to testify, then a heightened showing of reliability is required before those statements can be allowed in evidence: (1) the court must find that the time, content, and circumstances of the statement provide sufficient indicia of reliability; (2) if the child is not available for cross-examination, there must be corroborating evidence of the abuse; and (3) advance notice must be given to other interested parties so they have a chance to contest the evidence. (Cindy L., supra, 17 Cal.4th at pp. 29-30.) Thus, Cindy L. requires either corroboration or availability of the child for cross-examination. Father does not argue that either child was unavailable for cross-examination, yet he chose not to call the boys as witnesses. Thus, he has forfeited any argument that the lower court was required to apply a heightened standard of reliability in evaluating their statements. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 [" 'possible theories not fully developed or factually presented to the trial court cannot create a 'triable issue' on appeal' "].)
Among the factors a court may look to in determining the reliability of a hearsay statement are "(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." (Cindy L., supra, 17 Cal.4th at p. 30.) The minor's ability to understand the duty to tell the truth is also a factor a court may consider in determining the reliability of a hearsay statement. (Id. at pp. 30-31.) These factors are not an "exhaustive" list. (In re Lucero L. (2000) 22 Cal.4th 1227, 1239 (Lucero L.).)
In any event, we need not undertake an extensive analysis under Cindy L. (or its progeny Lucero L., supra, 22 Cal.4th 1227 and In re I.C. (Apr. 26, 2018, S229276) ___ Cal.5th ___ because Father never objected to the boys' statements as hearsay. He may not do so now on appeal. (Evid. Code, § 353.) Father "failed to object to the hearsay . . . and is now precluded from predicating error on its admission. [Citation.] Moreover, his arguments go to credibility determinations and weighing of the evidence, functions reserved to the juvenile court." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113 (Tracy Z.).) As Father did not make a timely and specific objection to the hearsay statements of L.M. or L.R., the juvenile court could properly base its ruling on this hearsay evidence.
We asked the parties to brief In re I.C., which was published after briefing in this case was completed.
In his reply brief, Father contends the viewing and admittance of the CALICO tapes were procedurally improper. "Arguments presented for the first time in an appellant's reply brief are considered waived." (Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6.)
Even were we to conclude the hearsay evidence fails to meet the standards set forth in Cindy L., in judicial proceedings "under . . . [a] long-standing rule, 'incompetent hearsay admitted without objection is sufficient to sustain a finding or judgment.' " (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268.)
Further, In re I.C., Lucero L., and Cindy L. all concern very young children who were not qualified to testify and who therefore could not have been cross-examined. Here, both children were older than the children who were the subject of the three Supreme Court opinions, with L.M. being significantly older. We have viewed the four CALICO tapes, and it is apparent that L.M. is a very intelligent, articulate child who would have been qualified to testify. Even L.R.'s interview shows the child was able to understand and meaningfully respond to questioning.
The Lucero L. court determined that corroborating evidence was not absolutely required by due process before a juvenile court could rely on a truth-incompetent, non-testifying child's hearsay statements at the jurisdictional phase of a dependency proceeding. (Lucero L., supra, 22 Cal.4th at pp. 1248-1249.) However, the court held that "section 355 notwithstanding, the out-of-court statements of a child who is subject to a jurisdictional hearing and who is disqualified as a witness because of the lack of capacity to distinguish between truth and falsehood at the time of testifying may not be relied on exclusively unless the court finds that 'the time, content and circumstances of the statement provide sufficient indicia of reliability.' " (Lucero L., at pp. 1247-1248.) Quoting the United States Supreme Court, it concluded: "At least in the case of a truth incompetent minor, the court may rely exclusively on these out-of-court statements only 'if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility . . . .' " (Id. at p. 1249.) There is nothing in the record to indicate that either L.M. or L.R. were ever evaluated as, or deemed to be, "truth-incompetent" witnesses.
Nothing in the record suggests that the children were unavailable for testimony or cross-examination. Moreover, it was not the Agency's burden to provide these witnesses for cross-examination without Father first having made a specific objection. Father had a statutory right both to subpoena and cross-examine the boys. (See § 341.) But he did not invoke either of these rights. As the United States Supreme Court has observed, "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge . . ., the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness." (Davis v. Alaska (1974) 415 U.S. 308, 316, italics omitted; see In re Brenda M. (2008) 160 Cal.App.4th 772, 777 [father improperly precluded from cross-examining the preparer of an agency report as a sanction after he refused to testify].)
The boys' hearsay statements, while at times contradictory and inconsistent, were not inherently improbable or impossible of belief, and the trial court was entitled to give them credence. While there is evidence that Mother had attempted to influence her sons, the boys' credibility was for the court to resolve. (Tracy Z., supra, 195 Cal.App.3d at p. 113; see In re Ricardo L. (2003) 109 Cal.App.4th 552, 564 ["issues of fact and credibility are questions for the trier of fact"].) L.M.'s statements, on which the court relied, provide support for the result reached here. Evidence from even a single witness, such as L.M., is sufficient to support a court's findings, even if the court might have reached a contrary result if it had credited other evidence. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Hearsay that is not objected to may constitute substantial evidence. (See People v. Panah (2005) 35 Cal.4th 395, 476 [" ' "[i]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding" ' "]; see Cal. Law Revision Com. com, 29B Pt.1A West's Ann. Evid. Code (2011 ed.) foll. § 140, p. 27 ["when inadmissible hearsay or opinion testimony is admitted without objection, this definition makes it clear that it constitutes evidence that may be considered by the trier of fact"].)
C. Contradictory Evidence
While we must uphold the juvenile court's ruling under the standard of review that we are bound to follow, we acknowledge that the vast majority of the allegations that the juvenile court sustained as to Father were factually specific, yet the court did not address them comprehensively in its findings. The allegations include: (1) "[t]he minors were sexually abused by [Father]" (allegation b-1); (2) "[Father] put his penis and his fingers in [L.M.'s], [L.R.'s] and [D.E.'s] 'butts' " . . . [and] put his penis in [I.B.'s] butt and vagina" (allegation d-1); (3) "[Father] forced the minor [D.E.] to watch the sexual assaults on his siblings. [L.M.] was forced to watch [Father] put his penis in [I.B.'s] butt and vagina and put his hand over her mouth to silence her. [L.M.] was forced to touch [L.R.'s], [I.B.'s] and [D.E.'s] 'private parts' with his hands while [Father] watched" (allegation d-2); (4) "[Father] allowed six other people to put their penises in [L.M.'s], [L.R.'s] and [D.E.'s] butts and [I.B.'s] vagina" (allegation d-3).
Significantly, almost all of the allegations appear to reference penetration, yet the children's SART exams state that none of the children's bodies had signs of any penetration. The only evidence suggesting penetration was a small tear in D.E.'s anus, which the doctor opined could have been caused by a hard bowel movement. However, the SART exam results do not prove that no touching occurred.
The juvenile court appeared to accept that no penetration occurred, stating: "Whether or not they were fully penetrated, not necessarily of consequence to me." Other than acknowledging the contrary physical evidence, the court did not expressly address the factual inconsistencies that Father raises on appeal. Instead, the court stated it had a "gut" feeling that there were "a few things that had the ring of truth to them." One was "the very graphic description of—I think it was [L.M.] who was talking about [Father] cleaning himself and using a wipe and all of those other details about that experience." The other was "when [L.M.] said that he felt pain in the area of the sexual abuse, and that he threw up after." Ideally, the court would have specifically addressed each allegation in the petition, expressly stating the evidence that it viewed as supporting the Agency's petition. However, "[t]he decision of the juvenile court, if correct, will be upheld even if the stated reasons for the decision are erroneous or incomplete." (Lucero L., supra, 22 Cal.4th at pp. 1249-1250.)
Father cites no authority indicating that medical corroboration is a necessary prerequisite for a finding of sexual abuse.
In addition to noting the inconsistencies in the boys' testimony, Father points to other contradictory evidence, including the medical evidence, Douglas's finding that W. had already been evicted from the apartment where the children were allegedly assaulted by him and others, and Mother's apparent coaching of the boys. He also contends evidence that the children suffered from some trauma and anger issues does not demonstrate that they were sexually abused.
Essentially, Father asks us to take an end run around the juvenile court by conducting a de novo review of this case even though he chose not to object to the admission of the hearsay evidence below that the juvenile court ultimately credited, and after he elected not to call either boy to the witness stand under circumstances indicating that at least the older boy would have been qualified to testify. This course of action would be contrary to the well-accepted rules regarding the substantial evidence rule. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968 [under substantial evidence rule, we must view the evidence in the light most favorable to the prevailing party, resolving all conflicts in favor of the judgment, even when the testimony is justifiably suspicious].) Because substantial evidence of Father's sexual abuse supports the findings under section 300, subdivisions (b) and (d), dependency jurisdiction was established.
D. The Dispositional Order
In pertinent part, section 361 authorizes removal of a minor from the parent's physical custody as follows: "A dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . [¶] (1) [that] [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor . . . and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents' . . . physical custody. . . . [or] [¶] . . . [¶] (4) [that] the minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent . . . and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent . . . ." ( § 361, subds. (c), (c)(1), (c)(4).)
Although a removal order thus requires a higher standard of proof than a finding of jurisdiction, "the juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion. [Citations.] The court's determination in this regard will not be reversed absent a clear abuse of discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) On appeal from a judgment required to be based on clear and convincing evidence, we must uphold the judgment if it is supported by any substantial evidence. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
Father's challenge to the dispositional order removing D.E. from his custody is essentially based on the ground that the juvenile court's assumption of jurisdiction was improper. Because substantial evidence supports those jurisdictional findings, the dispositional orders will not be disturbed on appeal. II. Indian Child Welfare Act
Father also contends that the juvenile court committed reversible error by failing to state on the record the facts on which it based its removal decision. (§ 361, subd. (e].) The court's failure to state the facts on the record was error. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218, citing In re B. G. (1974) 11 Cal.3d 679, 699.) However, the failure to make findings required by section 361, subdivision (e) is deemed harmless when " 'it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.' " (In re Jason L., at p. 1218.) Father was not prejudiced. The juvenile court's disposition order was supported by clear and convincing evidence and so it is not probable, even had the court stated the facts on the record, that he would have retained custody of D.E.
Father contends reversal is required for failure to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) 25 U.S.C. § 1901 et seq. We disagree.
At the outset of the case, Father indicated that he was inquiring as to whether he had Indian ancestry and he completed the "Parental Notification of Indian Status" form. On the form, Father checked the box next to the statement, "I may have Indian ancestry," listing the tribe as "unknown." No further information, such as identification of any tribe or of any family member who either was associated with a tribe or had further information on the family's Indian status, appears on the form.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) These interests are protected by providing notice of pending proceedings that could affect the status of the Indian children with respect to the tribe. Notice to the Indian tribe is triggered if the court "knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2; Cal. Rules of Court, rule 5.481(b).)
Nothing in the vague response by Father, which consisted solely of checking a box on a form with no further information, would give the juvenile court reason to know an Indian child was involved in the dependency case. There is nothing in the bare statement on the printed form to lead anyone to have reason to know Father has Indian ancestry and no suggestion there is any tribal affiliation or family tradition of such affiliation. Father's belief that he may have Indian ancestry is too speculative to require notice. (In re J.D. (2010) 189 Cal.App.4th 118, 124-125.) In the absence of information that would have given the juvenile court reason to know an Indian child was involved, there was no requirement that notice of the proceedings be sent to any entity.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.