Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SJ12270A, Garry G. Haehnle, Judge.
McCONNELL, P. J.
C.R. appeals a judgment declaring his minor daughter, Emily R., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (j), and removing Emily from parental custody based on findings C.R. sexually molested Emily's half sibling, Nancy G. C.R. challenges the sufficiency of the evidence to support the court's jurisdictional findings and dispositional order. We conclude there was no substantial evidence to support the court's finding Emily was currently at substantial risk of being sexually abused. Accordingly, we reverse the judgment.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
C.R. and J.G. are the parents of twins Emily R. and Ken R. (together, the twins). J.G. has two older daughters, Nancy G. and Diana M., each of whom has a different father. C.R., J.G. and the four children lived in various locations in California and Mexico. In October 2009, Desarrollo Integral de la Familia (DIF) took the four-year-old twins into protective custody in Tijuana when C.R. was arrested for sexually molesting 14-year-old Diana. Because the twins were United States citizens, they were repatriated to the United States, and DIF released them to the San Diego County Health and Human Services Agency (Agency). DIF also took Diana into protective custody, but placed her with relatives in central Mexico.
At the time the twins were taken into protective custody, C.R. was the custodial parent, having obtained an order for physical and legal custody of the twins in July 2009 from the Los Angeles family court.
In November 2009, Agency filed a petition in the juvenile court under section 300, subdivision (j), alleging Emily was at substantial risk of harm because C.R. had sexually abused Diana since she was eight years old, and he had also touched Nancy inappropriately sometime in 2007. The court detained Emily in out-of-home care.
Agency also filed a petition on behalf of Ken under section 300, subdivision (j), but the court ultimately dismissed that petition. Thus, Ken is not a subject of this appeal.
Reports prepared by the Mexican authorities included declarations and statements made by Diana during the investigation of the sexual abuse allegations against C.R. Diana described how C.R. molested her for about six years. These statements, however, were not considered by the juvenile court because Diana did not testify, could not be cross-examined and did not qualify as an unavailable witness within the meaning of Evidence Code section 240.
In its Respondent's brief, Agency claims the court erroneously excluded this evidence, but acknowledges it did not appeal this evidentiary ruling. Thus, the issue of whether Diana's statements were admissible at the jurisdiction and disposition hearing is not before us. Because the court based its findings only on evidence that Nancy had been sexually molested by C.R., we limit our recitation of the facts to that evidence.
Agency social worker Ana Martinez conducted a telephone interview of Nancy, who said that on one occasion in 2007, C.R. "touched her in her private areas and breasts while she was sleeping." Nancy also said C.R. tried to hug and kiss her. C.R. stopped this behavior when Nancy threatened to report him. Nancy denied ever seeing C.R. touch Diana.
According to reports prepared for the jurisdiction and disposition hearing, C.R. adamantly denied having sexually abused any of the children. He insisted Diana and Nancy fabricated the allegations, intending to ruin his life. J.G. refused to believe the allegations against C.R., saying Diana had lied.
At a contested jurisdiction and disposition hearing, the court received Agency's reports in evidence. Attached to the February 22, 2010, addendum report were several documents from Mexican officials generated during the course of investigating Diana's sexual abuse allegations. The court excluded all hearsay contained in those documents.
Martinez testified she believed the risk to Emily was high. Martinez based her opinion on the nature of the allegations, the investigation conducted by DIF and statements given by Diana's neighbor, the parents and Nancy. According to Martinez, Nancy's tone and affect during a telephone conversation made her statement about having been molested by C.R. seem credible.
Nancy testified she was now 18 years old and married. During the time Nancy lived with J.G. and C.R., she never saw C.R. act inappropriately toward Diana. Nancy admitted telling social worker Martinez that in 2007, C.R. had touched her private areas and breasts one time while she was sleeping, but Nancy now claimed that was not a true statement. She testified C.R. never touched her inappropriately, explaining she made the false accusation because she was angry with C.R. for having obtained custody of the twins. Nancy believed that if C.R. got in trouble, J.G. would regain custody of the twins.
Nancy also testified that when she was five or six years old, Diana's father began sexually molesting her. This occurred for several years before Nancy told J.G. Diana's father was prosecuted and sent to prison. Although this evidence is not relevant to whether C.R. sexually molested Nancy, C.R. refers to it in an effort to show Nancy's recantation of sexual abuse by C.R. was credible because she was capable of disclosing sexual abuse when it did happen.
Sara Maltzman, Ph.D., testified for Agency as an expert witness on the topic of child sexual abuse. Dr. Maltzman, who was familiar with the literature, consensus and best practices regarding potential risk in sexual abuse cases, had not read any of the reports in this case or spoken with the parents or children. Dr. Maltzman testified there was no way of telling which children, based on their ages, would be at risk of sexual abuse in the home without evaluating the client, and she did not directly evaluate clients. The probability that an offending parent will again engage in sexual abuse of either the same victim or a victim of a different age or gender can only be determined by a careful psychosexual risk assessment of the offender performed by an expert. However, she acknowledged there could be some risk if the nonoffending parent denied the abuse had occurred. Dr. Maltzman further testified children are often reluctant to disclose sexual abuse and they delay reporting it. Recantation is not uncommon.
Social worker Donna Reyes testified she made a risk assessment in this case and believed both Emily and Ken were at substantial risk of being sexually abused by C.R. Reyes stated that in determining risk of sexual abuse, it is very important to speak to the victim to get information and assess the victim's credibility. However, Reyes' many attempts to interview Diana and Nancy had been unsuccessful. Instead, Reyes' assessment was based on the reports from the Mexican authorities, statements Diana made to others, statements made by the parents, Diana's psychological evaluation and conversations Reyes had with the DIF social worker. The court reiterated its ruling that all hearsay statements contained in those documents and reports would be excluded for purposes of making jurisdictional findings.
After considering the evidence and arguments of counsel, the court excluded evidence regarding the molest of Diana but found the evidence of Nancy's sexual abuse by C.R. was sufficient to make a true finding under section 300, subdivision (j), with respect to Emily, but not Ken. In this regard, the court expressly found Nancy's recantation was not credible. The court declared Emily a dependent, removed her from parental custody and placed her in foster care.
The court amended the petition under section 300, subdivision (j), to provide that sometime in 2007, Emily's "half-sibling was touched on her breast and vagina by [C.R.]" and Emily is at substantial risk of being sexually abused within the meaning of section 300, subdivision (d).
The court dismissed the petition as to Ken, and gave Agency two days to file a new petition alleging Ken was at risk of harm due to domestic violence between the parents.
DISCUSSION
C.R. challenges the sufficiency of the evidence to support the court's jurisdictional findings under section 300, subdivision (j). He asserts Agency did not meet its burden of showing Emily was at substantial risk of harm as a result of the molestation of Nancy on one occasion several years earlier. Minor's counsel joins in this argument.
In the juvenile court, minor's trial counsel argued in favor of the court assuming jurisdiction of Emily, and submitted on Agency's dispositional recommendations, which the court adopted. However, minor's counsel on appeal now requests reversal of the court's jurisdictional findings and dispositional order.
A
We review the court's jurisdictional findings for substantial evidence. (In re David M. (2005) 134 Cal.App.4th 822, 829.) Under this standard, we consider the entire record to determine whether the evidence is " ' "reasonable, credible, and of solid value." ' " (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Substantial evidence, however, is not synonymous with any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) "A decision supported by a mere scintilla of evidence need not be affirmed on appeal." (Ibid.) Further, uncorroborated hearsay does not constitute substantial evidence. (In re Lucero L. (2000) 22 Cal.4th 1227, 1244-1245.) Although substantial evidence may consist of inferences, those inferences must be the product of logic and reason, and must be based on legally admissible evidence in the record. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198 [legally admissible evidence is required to support a finding under section 300].) Inferences that are the result of mere speculation or conjecture cannot support a finding. The ultimate test is whether, considering the entire record, a reasonable trier of fact would make the challenged ruling. (In re Savannah M., supra, 131 Cal.App.4th at pp. 1393-1394; accord In re David M., supra, 134 Cal.App.4th at p. 828.)
B
Under section 300, subdivision (j), a child may be adjudged a dependent of the juvenile court if 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. The court shall 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 [facts] the court considers probative in determining whether there is a substantial risk to the child."
"Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by [s]ection 300" at the jurisdiction hearing. (§ 355, subd. (a).) A jurisdictional finding under section 300, subdivision (j), requires both past abuse of a child's sibling and a current risk the child will be abused in the future. (In re Carlos T. (2009) 174 Cal.App.4th 795, 803; In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) Thus, to support a finding under section 300, subdivision (j), there must be some evidentiary basis tending to show another child is at risk. Although evidence of past conduct may be probative of current conditions, "the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) The past infliction of harm by a parent, without more, does not establish a substantial risk of harm. (Ibid.) There must be some reason beyond mere speculation to believe the acts may continue in the future. (In re Ricardo L., supra, 109 Cal.App.4th at p. 565; In re Jennifer P. (1985) 174 Cal.App.3d 322, 326.)
C
Here, the court found Emily's sibling Nancy had been sexually abused within the meaning of section 300, subdivision (d), and there was a substantial risk that Emily would also be sexually abused. The court based its finding of past abuse of a sibling on statements by Nancy to social worker Martinez that sometime in 2007, C.R. had sexually molested her. Although Nancy recanted those statements during her testimony, the court was entitled to find her recantation unconvincing, and we cannot interfere with the court's assessment of a witness's credibility. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53; In re S.A., supra, 182 Cal.App.4th at p. 1140.) Nevertheless, the court's jurisdictional finding under section 300, subdivision (j), required a further showing of a substantial risk that Emily will be sexually abused in the future. (In re Ricardo L., supra, 109 Cal.App.4th at p. 566.)
In reviewing the sufficiency of the court's findings as to whether Emily is currently at risk of being sexually abused, we are constrained by the record before us, which limits our consideration of the evidence to the sexual abuse of Nancy but not Diana. The circumstances of Nancy's abuse showed there was one incident of inappropriate sexual touching by C.R. three years earlier, when Nancy was around 15 years old, followed by some attempts to hug and kiss her. C.R.'s untoward behavior stopped when Nancy threatened to report him. The nature and duration of this abuse does not permit a reasonable inference of substantial risk to Emily, instead providing only speculation. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 399 [allegations that father, more than one year earlier, inappropriately touched minor was not sufficient to "now establish a reason for state interference with the family"]; In re Savannah M., supra, 131 Cal.App.4th at p. 1398 [one-time occurrence of neglect or abuse by caretaker or parent may not be sufficient to show substantial risk of future harm]; In re J.N. (2010) 181 Cal.App.4th 1010, 1022 [evidence of a single episode of parents' drinking and driving was insufficient to bring minors within the juvenile court's jurisdiction]; cf. In re Karen R. (2001) 95 Cal.App.4th 84, 90-91 [repeated acts of forcible incestuous rape of minor was so sexually aberrant as to place other siblings in home at substantial risk of sexual abuse]; In re Dorothy I. (1984) 162 Cal.App.3d 1154, 1157 [father's sexual abuse of sibling over prolonged period of time created present risk to minor].) Further, there was no evidentiary basis to connect C.R.'s sexual abuse of a 15-year-old to a risk of sexual abuse of four-year-old Emily. Under these circumstances, it is not enough that at some point in the future Emily might be subjected to the same type of acts committed against Nancy.
Moreover, the expert testimony did not show Emily was at substantial risk of sexual abuse by C.R. The risk assessments provided by social workers Reyes and Martinez were based primarily on hearsay statements that were ultimately excluded from evidence, and did not form the basis of the court's findings. Even the testimony of Dr. Maltzman provided little support for a finding of current risk to Emily. Dr. Maltzman had not read any of the reports in this case or spoken with the parents or children. Her opinion was based on the literature, consensus and best practices regarding potential risk in sexual abuse cases. In the absence of a psychosexual evaluation, Dr. Maltzman was unable to give an opinion on the probability of whether a parent who has sexually abused one child in the home will sexually abuse another child in the home. At most, Dr. Maltzman believed there could be some risk if the nonoffending parent denied the abuse had occurred. It is unclear from the record what facts, beyond the sexual abuse of Nancy, the court considered probative in finding Emily was at substantial risk of sexual abuse by C.R.
It was Agency's burden at the hearing to present evidence of the necessity for juvenile court jurisdiction. (In re Ricardo L., supra, 109 Cal.App.4th at p. 569.) The record we are presented with simply does not provide sufficient evidence to support a finding that past sexual abuse of Emily's sibling Nancy on one occasion placed Emily at current substantial risk of sexual abuse within the meaning of section 300, subdivision (j). Accordingly, we reverse both the jurisdictional findings and dispositional order. (In re James R. (2009) 176 Cal.App.4th 129, 137.)
DISPOSITION
The judgment is reversed.
WE CONCUR: HALLER, J., IRION, J.