Opinion
NOT TO BE PUBLISHED
APPEAL from findings and orders of the Superior Court of San Diego County No. NJ14019D Michael Imhoff, Commissioner.
McINTYRE, J.
Rocio G. and Juan G. appeal an order adjudicating their son, Adrian G., a dependent of the juvenile court. (Welf. & Inst. Code, § 300, subd. (j).) (Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.) They also appeal findings and orders removing Adrian from Rocio's custody. (§ 361, subd. (c)(1).) We affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Rocio G. and Juan G. (together, the parents) have four children: Efrain, Aracely, Luis and Adrian. Adrian is the subject of this appeal. He is now 15 months old.
Efrain, Aracely and Luis (collectively, the siblings) are now ages 10, nine and seven years old, respectively, and have been under the protection of the juvenile court since October 2008. Their dependency proceedings are described in this court's unpublished opinion, In re Efrain G. (Mar. 29, 2010; D055399), affirming the findings and orders of the trial court. (We grant Juan's request for judicial notice of Efrain G. (Evid. Code, § 452; Cal. Rules of Court, rule 8.1115(b).) We briefly review the circumstances that led to the siblings' dependency cases, as relevant to this appeal.
In October 2008 Rocio noticed that Aracely was scratching her vaginal area on a daily basis, complaining it itched. Rocio took Aracely to see a physician. Aracely told the physician Juan had touched her vaginal area with his finger. During the ensuing investigation, in the second of two forensic interviews, Aracely said Juan had touched her under her clothes in her vaginal area on one occasion. She said it hurt. Aracely's hymen was abnormally thin for a seven-year-old girl. The examining doctor concluded the medical findings were abnormal but nonspecific, and could have been caused by sexual abuse or other mechanisms.
Juan and Rocio denied that Juan had sexually abused Aracely.
The San Diego County Health and Human Services Agency (the Agency) initially left the siblings in Rocio's care on condition Juan remain out of the home and he have no contact with Aracely. When Rocio allowed Juan to return, the Agency detained the siblings. While in protective custody, five-year-old Luis mistreated animals and displayed sexualized behaviors. He masturbated daily and simulated a sexual act on his older brother Efrain, who was submissive to his younger brother.
In May 2009 the court found that Juan had sexually abused Aracely. The court also found that Efrain and Luis were at risk of harm because of sibling sexual abuse and that Luis suffered from severe emotional damage, and ordered a plan of family reunification. Juan and Rocio participated in therapy and other services. On the advice of counsel, Juan did not take part in a court-ordered psychosexual evaluation. The parents continued to deny Juan had sexually abused Aracely.
The Agency detained Adrian at birth and filed a petition alleging he was at substantial risk of abuse or neglect because Juan had sexually abused Aracely, and Juan and Rocio had not made any progress with their court-ordered case plan. (§ 300, subd. (j).) Because the appeal of the judgment in the siblings' cases was pending at the time of the jurisdiction hearing in Adrian's case, the trial court denied the Agency's request to take judicial notice of the sexual abuse findings in Aracely's case, ruling instead the parties could litigate the allegations in Adrian's petition.
At the jurisdiction and disposition hearing, the court admitted the Agency's reports prepared for the siblings' dependency proceedings and Adrian's case, and the recordings and transcripts of Aracely's two forensic interviews. The court also admitted the siblings' transcripts from their testimonies at the earlier jurisdiction hearing at which Aracely denied her father had touched her vaginal area. The court heard testimony from Johanna Firth, who was the primary social worker for all the children, Christina Schultz, a medical social worker who had conducted the forensic interviews of Aracely, and Dr. Arlys Norcross McDonald, a clinical psychologist who was qualified as an expert witness in interviewing children in sexual abuse cases.
Juan sought a ruling concerning the use of a psychological evaluation conducted by Dr. Raymond Murphy (evaluation) to challenge social worker Firth's conclusion that Juan's sexual abuse of Aracely presented a substantial risk of harm to Adrian. In an unreported chambers conference, later summarized on the record by the court, the court stated it understood the evaluation was offered to show that Juan did not fit a profile for pedophiliac or incestuous proclivities or that he had a profile that was sexually aggressive, predatory or deviant (collectively, profile). The court ruled the evaluation was not deemed probative unless Juan laid a foundation to show any profile was accepted within the discipline's scientific community and assuming a profile was valid, Dr. Murphy was qualified to render an opinion on whether Juan met that profile.
Later in the proceedings, Juan indicated he would call Dr. Murphy to testify and sought clarification of the court's ruling. The court tentatively ruled Dr. Murphy could testify about his opinion concerning any Axis 1 or Axis II diagnoses, including any of the DSM-IV paraphilia diagnoses. With respect to any specific profiling issues, the court required Juan to establish the profile was accepted within the scientific community.
Juan did not call Dr. Murphy to testify.
Johanna Firth's testimony centered on Aracely's disclosures of sexual abuse and medical findings, as detailed above. She stated in addition to Aracely's disclosures to the physician and the forensic interviewer, Aracely spontaneously told her caregiver on two occasions that Juan had touched her, indicating her vaginal area. Firth believed the boys in the family were at risk of sexual abuse because seven-year-old Aracely was not pubescent. She explained Aracely's physical characteristics, with the exception of the sexual organs, were similar to her brothers' physical characteristics. Further Luis's sexualized behaviors raised concerns that Juan did not differentiate between his children on the basis of their sex.
Christina Schultz testified she followed guidelines for interviewing children who were alleged to have been abused. Those guidelines had been in use at her program for 15 to 20 years. Schultz's role was as a neutral fact finder. She first tried to establish a rapport with a child to assess the child's expressive and receptive language skills, and the child's response to general questions.
Schultz stated that at the first interview, Aracely said she scratched herself with her finger, indicating her vaginal area, and denied anyone else had touched her there. At the follow-up interview, Aracely said she told her physician her father had touched her, indicating her vaginal area.
Dr. McDonald testified it was important for the interviewer to abide by established rules when conducting forensic interviews of children who may have been sexually or physically abused. Dr. McDonald stated Aracely's forensic interviews did not meet the expected standard for assessment of child abuse and violated the American Psychological Association's prohibition against the use of repetitive, leading questions when interviewing children. Dr. McDonald stated if an assessment did not meet those standards, the credibility of the child was not reliable.
Dr. McDonald stated Schultz did not establish rapport with Aracely, who did not look comfortable. Schultz was controlling and demanding, and the atmosphere was more like an interrogation than a safe, comfortable conversation. During the second interview, when Aracely did not disclose sexual abuse, Schultz said, "I want you to tell me about what it was that you told the doctor, " and repeated this question 11 times before Aracely responded. Schultz did not ask Aracely whether she had told her physician the truth. Dr. McDonald did not believe Aracely's response to Schultz was a reliable disclosure of sexual abuse.
The trial court found that although some of Dr. McDonald's criticisms of the forensic interviews were valid, the totality of the evidence showed Juan had sexually abused Aracely. The court stated there was not a logical connection between Juan's sexual abuse of Aracely and the conclusion that Adrian, a baby boy, was at risk of sexual abuse. However, other evidence showed Luis had an obsessive fixation on masturbation and harming animals, and Juan and Rocio were unable to recognize the possibility that one or more of their children had been abused. The court found Adrian was at substantial risk of abuse or neglect under section 300, subdivision (j). The court removed Adrian from parental custody and ordered Juan to undergo a psychosexual evaluation.
Rocio and Juan filed timely notices of appeal. They join in and adopt each other's arguments and briefs. We review the evidence in the light most favorable to the judgment. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 582, citing Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
DISCUSSION
A
Rocio and Juan contend the trial court erred when it ruled Dr. Murphy's testimony as to whether Juan presented as a sexual deviate was not probative in the absence of proof a sexual predator profile was accepted by the discipline's scientific community. They contend the proffered psychological evidence was character evidence admissible under section 300, subdivision (j), which allows the court to "consider the propensities or predispositions of the parent" to determine whether the parent is likely to abuse or neglect another child, and Evidence Code 1100, which permits evidence in the form of an opinion, reputations or specific instances of conduct when the parent's character is the central issue. (In re Mark C. (1992) 7 Cal.App.4th 433, 442-443 & fn. 5 (Mark C.); see Evid. Code, § 1101, subd. (a).)
Rocio and Juan further assert the court erred when it required Juan to meet the requirements of the Kelly test. (People v. Kelly (1976) 17 Cal.3d 24 (Kelly); see Frye v. United States (D.C. Cir. 1923) 293 F. 1013, superseded by federal statute as stated in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)509 U.S. 579, 586-589.) Under Kelly, the proponent of the testimony must make "a preliminary showing of general acceptance of the new technique in the relevant scientific community." (Kelly, supra, at p. 30.) The parents contend Kelly does not apply to expert psychological testimony offered to prove the defendant was not likely to commit certain acts in the future. (People v. Stoll (1989) 49 Cal.3d 1136, 1158-1159 (Stoll).)
A trial court's decision concerning the admissibility of evidence is subject to review for abuse of discretion, especially where the evidence comprises expert opinion testimony. (People v. Rowland (1992) 4 Cal.4th 238, 266.) A court's conclusion Kelly does or does not apply is examined independently to determine whether the purported error resulted in a miscarriage of justice. (Ibid.; Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 203.)
The court ruled Dr. Murphy could testify about his opinion concerning any Axis 1 or Axis II diagnoses, including any of the DSM-IV paraphilia diagnoses. We interpret the court's reference to DSM-IV as indication the court allowed the admission of any expert opinion based on standardized psychological tests. With respect to the admissibility of any expert opinion based on profiling, the court required Juan to establish the profile was accepted within the scientific community. While the court did not explicitly refer to Kelly, the court's language indicates it intended to exclude expert opinion evidence based on sexual profiling unless that evidence met the requirements of the Kelly test. (Kelly, supra, 17 Cal.3d at p. 30.)
Dr. Murphy's testimony was admissible as opinion evidence in a proceeding under section 300, subdivision (j), subject to rules regarding expert testimony and required foundation. (Mark C., supra, 7 Cal.App.4th at p. 443; see Stoll, supra, 49 Cal.3d at pp. 1153-1155; Evid. Code, § 801, subd. (b).) Accepted psychological tests may be admitted as character evidence to show whether an individual was likely to have committed a particular act, and the admissibility of such evidence need not be tested under Kelly. (People v. Ruiz (1990) 222 Cal.App.3d 1241, 1243-1244.) "Profile evidence" is "inadmissible only if it is either irrelevant, lacks a foundation or is more prejudicial than probative." (People v. Smith (2005) 35 Cal.4th 334, 357.)
Evidence Code section 801, subdivision (b), requires the matter underlying an expert's opinion be "of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates." (Ibid.) Although there is no need for a Kelly showing of scientific reliability concerning psychological testimony based on standardized written personality tests and patient interviews, the trial court may require a foundation to show the scientific community has developed a standard profile of a pedophile before it permits an expert to render an opinion whether the defendant meets that profile. (Mark C., supra, 7 Cal.App.4th at p. 445, citing Stoll, supra, 49 Cal.3d at pp. 1154-1157; People v. Ruiz, supra, 222 Cal.App.3d at pp. 1245-1246.)
The testimony of a psychologist who assesses whether a defendant displays signs of deviance or abnormality is not subject to Kelly unless the expert's opinion is based on a new scientific device or process. (Mark C., supra, 7 Cal.App.4th at p. 445; Stoll, supra, 49 Cal.3d at pp. 1154, 1157-1159; People v. Ward(1999) 71 Cal.App.4th 368, 373 (Ward); Wilson v. Phillips (1999) 73 Cal.App.4th 250, 254; People v. Therrian (2003) 113 Cal.App.4th 609, 615-616.) Thus, Dr. Murphy's testimony was not subject to Kelly unless his opinion was based on a new scientific device or process. (See, e.g., Stoll, supra, at pp. 1159-1160, fn. 21 [penile plethysmograph subject to Kelly analysis]; In re Amber B. (1987) 191 Cal.App.3d 682, 691 [practice of detecting child sexual abuse by observing child's behavior with anatomically correct dolls and analyzing the child's reports of abuse subject to Kelly]; In re Sara M. (1987) 194 Cal.App.3d 585, 594 ["child molest syndrome" did not meet Kelly test].)
The record is inadequate to show the expert testimony was based on a new scientific technique or process requiring proof of its reliability. (Kelly, supra, 17 Cal.3d at p. 30.) The burden is on the party seeking admission of the evidence to make an offer of proof and provide meaningful information about the standardized test or tests used in the evaluation. (Mark C., supra, 7 Cal.App.4th at p. 444.) When a trial court denies a defendant's request to produce evidence, the defendant must make an adequate offer of proof to preserve the issue for consideration on appeal. (Evid. Code, § 354.) The record must show the "substance, purpose and relevance of the excluded evidence was made known to the court." (Ibid.; People v. Foss (2007) 155 Cal.App.4th 113, 126; Mark C., supra, at p. 445.) Juan did not make any significant effort to make that showing.
While the purpose and relevance of the expert's opinion concerning whether Juan met a deviant sexual profile may be discerned from the record, the substance of any profiling evidence is not. The record does not reveal the processes used to develop any profile, nor does it show whether the expert's opinion concerning the application of that profile to Juan was based on standardized test results or novel devices or processes. (Ward, supra, 71 Cal.App.4th at p. 373.)
We conclude the court's ruling permitting Dr. Murphy to testify about the results of Juan's standardized psychological tests was correct. With respect to the court's ruling Kelly applied to any profile used as a basis by Dr. Murphy to form his opinion, because of the uncertainty in the record concerning the nature of the proffered evidence, we cannot conclude the court erred in excluding it. (Mark C., supra, 7 Cal.App.4th at p. 445.)
B
Rocio and Juan contend the jurisdiction findings are not supported by substantial evidence. They argue the court was presented with new evidence undermining the finding that Juan sexually abused Aracely because (1) Aracely's statements alleging sexual abuse lacked reliability; (2) Dr. Murphy's excluded testimony would have shown Juan did not present as sexually deviant or predatory; and (3) the Agency failed to link the alleged sexual abuse of Aracely to a defined risk of harm to Adrian in view of his age and sex. The parents further contend Luis was not a child alleged to be abused or neglected as defined in section 300, subdivision (a), (b), (d), (e) or (i), as required by subdivision (j), and the court improperly relied on Luis's behaviors to sustain jurisdiction.
At the jurisdiction hearing, under section 300, subdivision (j), the Agency must show the "child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." In determining risk, the court should consider "the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." (§ 300, subd. (j); see In re Maria R. (2010) 185 Cal.App.4th 48, 62-65 (Maria R.).)
We review the record to determine whether there is substantial evidence that supports the trial court's findings. We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) For this reason, we do not consider the parents' argument that Dr. Murphy's testimony would have been favorable to Juan.
Accepting the trial court's finding that some of Dr. McDonald's criticisms of the forensic interview techniques were valid, we conclude there is substantial evidence in the record to support the conclusion Aracely was sexually abused. Aracely told her physician that her father had touched her in her body with his finger, indicating her vaginal area. Approximately six months later, during a discussion about body privacy with the foster mother, Aracely indicated her father had touched her. On another occasion, Aracely told the foster mother "only my daddy touches me there, " indicating her vaginal area. Aracely's hymen was abnormally thin for a seven-year-old girl. Medical examiners concluded this was a result of sexual abuse or other mechanism. While not conclusive of sexual abuse, the medical findings were consistent with Aracely's statements.
The parents argue there is not a sufficient link between the sexual abuse of Aracely and a defined risk of harm to Adrian. The trial court agreed, stating it did not find a logical connection between the sexual abuse of a young girl and the risk of sexual abuse to her baby brother. We accept that proposition. (See Maria R., supra, 185 Cal.App.4th at pp. 67-69 [parent's sexual abuse of a daughter, without more, is not sufficient to establish her brother is at risk of sexual abuse from that parent].) Here, in addition to Juan's sexual abuse of Aracely, the record shows Luis exhibited aberrant behaviors, including animal cruelty and excessive masturbation, Efrain submitted to Luis's sexualized behaviors and the parents continued to deny the children had been harmed in any way.
The trial court properly considered Luis's sexualized behaviors and the family's other problems as probative factors to determine whether Adrian was at substantial risk of abuse or neglect, as allowed under the second prong of section 300, subdivision (j). (Maria R., supra, 185 Cal.App.4th at pp. 64-65.) The court could draw the reasonable inference that Adrian, like Luis, was at risk of substantial harm from Adrian's dysfunctional family circumstances, which included sexual abuse, animal cruelty, sexual acting out, submission to inappropriate behavior and parental denial. We conclude substantial evidence supports jurisdiction under section 300, subdivision (j).
C
Rocio and Juan argue the trial court's order removing Adrian from Rocio's custody is not supported by substantial evidence. They contend Rocio was capable of providing appropriate and loving care to Adrian despite her belief Juan did not sexually abuse Aracely.
The court considered Adrian's status in the home under section 361, subdivision (c)(1), which requires the court to maintain the child in a parent's physical custody unless it finds by clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being in the home, and there are no reasonable means to protect the child's physical health without removing the child from the parent's physical custody. (Ibid.; In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288; see also § 361, subd. (c)(4) [removal on grounds of child sexual abuse].)
In determining whether a child may be safely maintained in the parent's physical custody, the court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) The court must also consider whether there are any reasonable protective measures and services that can be put into place to prevent the child's removal from the home. (§ 361, subd. (c)(1); see §§ 202, subd. (a), 16500.5, 16501, 16501.1; 42 U.S.C. §§ 629, 629a).
In reviewing the court's findings and orders under section 361, subdivision (c), we employ the substantial evidence test, bearing in mind the heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
As discussed in part B, ante, the trial court's jurisdictional findings support the finding there was a substantial danger to Adrian's physical health, safety, protection, or physical or emotional well-being in the home. There is substantial evidence to support the findings there are no reasonable means to protect Adrian's physical health without removing him from Rocio's physical custody. (§ 361, subd. (c)(1).) Rocio knew Aracely had been rubbing her vaginal area on stuffed animals and chairs for approximately one year before she took her to a physician. She did not seek help for Luis after he harmed the family's pets and did not intervene to prevent his sexualized behaviors with Efrain. When the Agency left the siblings in her care, Rocio allowed Juan to return home and have contact with Aracely, violating the plans she had agreed to follow to protect the siblings.
By the time of the disposition hearing in Adrian's case, Rocio had been participating in services for more than a year. She refused to acknowledge even the possibility Juan had harmed Aracely. A psychologist concluded Rocio was unable to keep Aracely safe. Rocio's therapist reported Rocio was unable to independently parent her children. She had not been able to develop a sexual abuse safety plan because she insisted Juan did not abuse Aracely. The court reasonably concluded Adrian would not be safe from harm, including sexual abuse, if left in Rocio's care, and there were no other reasonable means to protect his physical health without removing him from parental custody. (§ 361, subd. (c)(1).)
DISPOSITION
The findings and orders are affirmed.
WE CONCUR McDONALD, Acting P. J.AARON, J.