Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SJ12011A-B
APPEAL from orders of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
Angela V. appeals orders removing her children from her custody under Welfare and Institutions Code section 387. We affirm.
Further statutory references are to the Welfare and Institutions Code.
IRION, J.
FACTUAL AND PROCEDURAL BACKGROUND
Angela V. and Jose C. are the parents of Andres V., born December 2004, and Ashley C., born September 2006 (together, children). On April 27, 2008, Jose hit Angela in the face four to five times causing swelling and bruising (April incident). The children were screaming during the assault. Angela sought medical care. She told a police officer she was afraid of Jose. He beat her when she was pregnant. Angela declined offers of an emergency protective order and shelter. She did not want officers to arrest Jose. The matter was referred to the San Diego County Health and Human Services Agency (Agency).
Jose does not appeal.
When interviewed by a social worker, Angela said she loved Jose and wanted to continue their relationship. She minimized the April incident and said she and Jose yelled and argued two to three times a week. Jose moved out of their home immediately after the April incident and Angela did not know how to contact him. He telephoned her and told her he was sorry.
Family members said Angela's jaw was "busted up" on Christmas and she could not eat. Angela's sister (Aunt) believed Angela continued to see Jose after the April incident.
The social worker gave Angela a safety plan that required her to obtain a restraining order and seek full custody of the children through family court, and participate in domestic violence counseling. Angela's application for a restraining order was denied when she stated her injuries occurred accidentally.
On June 13, 2008, Agency filed petitions alleging the children were at substantial risk of serious physical harm due to repeated exposure to domestic violence. (§ 300, subd. (b).) The court did not detain the children on the condition Angela reside with a family member. On July 2 Angela submitted to jurisdiction and was required to participate in services. The court issued a one-year restraining order against Jose.
The Agency continued to search for Jose but did not locate him.
On February 4, 2009, Agency filed supplemental petitions under section 387 alleging the prior dispositional orders had not been effective in protecting the children because Angela did not readily disclose where she was living with the children, she was approximately seven months pregnant with Jose's child and she and Jose continued to expose the children to domestic disturbances. (§ 387.) The court detained the children in protective custody.
The jurisdictional and dispositional hearing was held in March 2009. The court heard testimony from the social worker and Angela, and admitted into evidence Agency's six-month status review report and its reports and addendums prepared for the section 387 proceedings.
Agency reported the following: Angela completed a domestic violence program and parenting class. She did not participate with in-home services, saying she was too busy to meet with the community services worker. The social worker had difficulties ascertaining the children's whereabouts. Angela and the children left Aunt's home at the end of July 2008 and with Agency's approval, moved in with Gina C., an extended family member. On September 15 Angela and the children left Gina's home. They initially stayed in shelter facilities and then moved from friend to friend. On several occasions Angela gave incorrect information about her residence to the social worker. Once confronted, Angela provided correct information and then moved the following day. Angela also gave incorrect information about the children's daycare to the social worker.
Beginning in September 2008 Agency received reports Angela was pregnant with Jose's child. Angela denied she was pregnant. Aunt told the social worker she suspected Angela was continuing to see Jose because Angela was secretive and avoided her family.
In mid-November Angela returned to Gina's home. The social worker made several unannounced visits to Gina's home but never found Angela and the children at the home. The social worker saw the children when Angela was required to appear in person to obtain necessities or gifts for the children.
The children appeared healthy, fed, bathed and happy to be with their mother. Ashley had screaming tantrums and attachment issues. The social worker believed a stable living arrangement would help her.
On January 27, 2009, the social worker met with the children for the first time without Angela. Andres told the social worker he saw Jose "at Alex's house." She asked Andres, "When did you see daddy?" Andres responded, "Too much." The social worker concluded Andres was oriented to place but not to time.
The social worker asked Andres what his mother and father did during the visits. Andres responded, "Daddy gets really mad and says bad words." When asked to explain, Andres covered his mouth with his hand and said, "He says 'shut up' and 'bitch' and then he spanks Mommy real hard like this." Andres raised his hand in the air and slammed it down on his bottom. He cried and felt sad when his father "spanked" his mother.
Andres first met Alex in September 2008.
Agency continued to search for Jose. Angela consistently stated she did not know where he was. Shortly before February 2, 2009, the social worker received an address for Jose at his mother's apartment. Jose's mother knew Angela was pregnant with her grandchild but would not talk about her son. She directed the social worker to contact Angela, stating Angela knew Jose's whereabouts.
On February 3, 2009, Aunt contacted the social worker. She stated Angela brought the children to see them on Christmas day. Andres told Aunt he saw his daddy that day. Angela had told her she was hiding her pregnancy from Agency until January 6, 2009, when she expected the case would be dismissed. Angela said once the case was dismissed, it did not matter whether she saw Jose
When questioned by the social worker on February 3, Angela confirmed her pregnancy. She said she first learned she was pregnant in November 2008. She was due in April 2009. Her last contact with Jose occurred in June 2008. Angela said she lived with Gina but stayed four or five days a week at the home of Alejandra, who was Alex's aunt.
The social worker believed the children's placement with Angela was not sufficient to protect them because Angela was allowing the children to see Jose. Her conclusion was based on Andres's statements as well as Angela's pregnancy, her elusiveness, the family's frequent moves and Angela's reluctance to allow the social worker to see the children alone. In view of Jose's violent criminal history and his unwillingness to address issues of domestic violence, there was no reason to believe violent acts of the type that had led to the children's dependency proceedings would not continue.
Angela testified Andres did not have any contact with Jose. When Andres said his daddy called his mommy a "bitch" and hit her, he was referring to the past. Angela acknowledged Andres told her he played video games with Jose at Alex's house. Alejandra was Angela's and Jose's former roommate. Angela acknowledged she and the children frequently stayed at Alejandra's home without the social worker's knowledge.
The court found that Andres's statements about seeing Jose at Alex's house, his statements about Jose's use of the term "bitch" with Angela and his demonstration of how Jose hit her were clear and corroborative to the point they were reliable. The court also considered Angela's deceit about her living arrangements, including staying at a nonapproved residence in violation of a court order, her misrepresentations about her pregnancy, and information from family members corroborating the children's contact with Jose. The court sustained the section 387 petitions and placed the children in foster care.
DISCUSSION
A. The Parties' Contentions
Angela contends the section 387 orders removing the children from her custody are not supported by substantial evidence. She asserts Andres's statements to the social worker, while admissible under section 355, are not reliable because Andres was not oriented to time and his statements were not corroborated by any other facts or circumstances, as required by In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.) and In re Cindy L. (1997) 17 Cal.4th 15 (Cindy L.).)
Cindy L. and Lucero L. concerned children who were incompetent to testify because they were unable to distinguish between truth and falsehood. (Lucero L., supra, at pp. 1240, 1247-1248; Cindy L., supra, at pp. 32-33.) The issue of whether Andres was competent to testify was not raised at trial or on appeal. The parties did not dispute the truth of Andres's statements, only the time frame in which his contact with Jose occurred. The trial court applied Lucero L. and spoke in terms of the reliability of Andres's statements.
Agency asserts Angela asks this court to reweigh the evidence and disregard the trial court's finding that Andres's statements were reliable. It acknowledges the issue of the reliability of Andres's statements may have been difficult at trial. Agency maintains Angela does not demonstrate reversible error under the deferential standard of appellate review. Minors' counsel joins with Agency's arguments.
B. Statement of Law and Standard of Review
If Agency concludes that a previous disposition has not been effective in the protection of a dependent child and seeks a more restrictive level of custody, it must file a petition under section 387. (Cal. Rules of Court, rule 5.565(e)(1).) Agency has the burden to show, by a preponderance of the evidence, that the factual allegations alleged in the petition are true. If the court finds the factual allegations are true, the court determines whether the previous disposition is no longer effective in protecting the child. (§ 387; In re H.G. (2006) 146 Cal.App.4th 1, 11.) If the court finds the previous dispositional order is no longer effective, then, in a separate dispositional phase, the court must determine, by clear and convincing evidence, whether removal of the child from his or her placement is required. (Rule 5.570(e); In re H.G., supra, 146 Cal.App.4th at p.12; In re Paul E. (1995) 39 Cal.App.4th 996, 1003.)
All further rule references are to the California Rules of Court.
We review the evidence in the light most favorable to the trial court's determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court's findings. We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. The burden is on the appellant to show there is no evidence of a substantial nature to support the challenged finding or order. (In re H.G., supra, 146 Cal.App.4th at pp. 12-13; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
C. Analysis
Angela argues there was not sufficient, reasonable and credible evidence to support the court's order removing the children from her care. Angela reviews the evidence in the light most favorable to her position and concludes Andres's statements to the social worker were not corroborated and do not provide special indicia of reliability. (Lucero L., supra, 22 Cal.4th at pp. 1231, 1247-1248; Cindy L., supra, 17 Cal.4th at p. 29.)
Applying the correct standard of appellate review, we determine there is ample evidence to support the court's finding that "the time, content and circumstances" of Andres's statements provide sufficient indicia of reliability for jurisdiction under section 387. (Lucero L., supra, 22 Cal.4th at pp. 1239, 1247-1248 quoting Cindy L., supra, 17 Cal.4th at p. 29; see also Idaho v. Wright (1990) 497 U.S. 805, 821-822 [nonexhaustive list of factors relevant to the reliability of hearsay statements made by child witnesses include spontaneity and consistent repetition, use of unexpected language for a child of similar age and lack of motive to fabricate].) Simply stated, the court found Andres's statements to be credible.
Andres had no motive to fabricate the statements. Although he was unable to state when he saw Jose, Andres consistently described the location of their visits and the nature of their activities. When asked, he reluctantly repeated Jose's "bad words." Andres demonstrated how Jose hit Angela and said it made him cry and feel bad. Andres's lack of motivation to lie, his consistent statements, his use of age-appropriate language to describe Jose's statements and his demonstration of Jose's actions are sufficient indicia of reliability. (Idaho v. Wright, supra,497 U.S. at pp. 821-822; Cindy L., supra, 17 Cal.4th at p. 29; Lucero L., supra, 22 Cal.4th at pp. 1231, 1247-1248.)
In addition, Andres's statements are corroborated by his time oriented statement to Aunt on Christmas day 2008, when he told her he saw Jose, and by his references to Alex, whom he met for the first time in September 2008, and his video game activities with Jose. In Angela's handwritten account of the April incident, she stated Jose was playing video games while Andres watched.
"Corroborating evidence is 'evidence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point.' (Black's Law Dict. (5th ed.1979) p. 311.) In this context, corroborating evidence is that which supports a logical and reasonable inference that the act described in the hearsay statement occurred." (In re B.D. (2007) 156 Cal.App.4th 975, 984, quoting In re Cindy L., supra, 17 Cal.4th at p. 35.)
Further, even if we were to determine Andres's statements to the social worker were unreliable because Andres was not oriented to time, there is substantial evidence to support the court's findings and orders under section 387.
Angela denied and minimized Jose's violence toward her. She told the social worker she loved him and wanted to have a relationship with him. Angela told Aunt that after dependency jurisdiction was dismissed, it did not matter whether she saw Jose. Jose did not participate in the dependency proceedings and took no steps to ameliorate his behavior. The court could reasonably infer Angela did not appreciate the severity of Jose's violent behaviors and could not protect herself or her children from his abuse. Angela's pattern of isolating herself and the children from family members, which was ongoing after she left Aunt's home in late July 2008, increased the risk to the children in Angela's care.
On Christmas day 2008 Andres told Aunt that he saw Jose that day. This statement was oriented to time. Jose's contact with Andres constitutes a violation of the court's protective orders and further supports the findings that the previous dispositional orders were not effective in protecting the children.
Finally, Angela's pattern of concealing her whereabouts and moving when the social worker learned of her location, and providing incorrect information about the children's daycare to the social worker, also increased the risk to the children. It allowed Angela to avoid unannounced social worker visits and to limit the social worker's contact with the children. Further, Angela's refusal to provide a consistent and predictable environment for her children, when one was available to her, was contrary to the children's well-being, particularly to Ashley, who was beginning to demonstrate attachment issues and needed more stability in her life.
The record also permits the reasonable inference Andres was or had been subjected to corporeal punishment in Angela's care. Andres said he liked the foster father because the foster father did not hit him and only gave him "a little time-out." Corporeal punishment on a three or four-year-old child increases the protective risk to a child, especially if a parent has participated in child protective services, as did Angela, or has a history of unameliorated violent behavior, as does Jose.
We conclude there is substantial evidence to support the court's findings that the prior dispositional orders were not effective in protecting the children and it was necessary to remove the children from Angela's care. (§ 387; rule 5.570(e); In re H.G., supra, 146 Cal.App.4th at p.12; In re Paul E., supra, 39 Cal.App.4th at p. 1003.)
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.
On appeal, without analysis, Angela notes Andres's lack of orientation to time and assumes he is incompetent to testify. We believe the issue raised on appeal concerns the child's credibility, not his competence as a witness. However, in view of the arguments raised on appeal, we discuss Cindy L. and Lucero L. only to the extent they may assist the trial court in determining the credibility of a child's statement, and do not intend to extend their holdings to cases in which the child's competency is not at issue.