From Casetext: Smarter Legal Research

In re Jessica

Court of Appeals of California, Second Appellate District, Division Seven.
Nov 19, 2003
No. B164222 (Cal. Ct. App. Nov. 19, 2003)

Opinion

B164222.

11-19-2003

In re JESSICA L. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TAYDE L. et al., Defendants and Appellants.

Michael A. Salazar, under appointment by the Court of Appeal, for Tayde L. Lori A. Fields, under appointment by the Court of Appeal, for Luciano L. Lloyd W. Pellman, County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Respondent. Kimberly A. Knill, under appointment by the Court of Appeal, for minor Vanessa L.


The juvenile court found that Luciano L. had sexually abused his 16-year-old daughter Jessica L. over a four-year period and that Jessicas mother Tayde L. was unable to protect her, declared both Jessica L. and her 15-year-old sister Vanessa L. dependent children of the court under Welfare and Institutions Code section 300, subdivisions (b) and (d), placed the children in the home of their mother under the supervision of the Los Angeles County Department of Children and Family Services (Department) and ordered Luciano L. not to reside in the home. Both parents have appealed, contending, in light of Jessicas subsequent recantation of her accusations against her father, there was insufficient evidence to support the juvenile courts jurisdictional findings. We affirm.

All statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

On September 3, 2002 Jessica reported to three Los Angeles Police Department officers that her father had sexually molested her on six or seven occasions during the past four years. Jessica provided detailed descriptions of several of the incidents, including the original episode of forcible oral copulation that had occurred when she was in the seventh grade. Jessica also told the officers that she had told her mother about her fathers behavior in April 2002 and explained that she did not report the abuse earlier because her father had threatened that if she told anyone the family would be destroyed.

The officers also interviewed Vanessa, who said she had never been sexually abused by Luciano, but stated Jessica had told her about four years ago that their father had molested Jessica. Vanessa told the officers she believed her sister was telling the truth about their father.

Tayde L. confirmed to the officers that Jessica told Tayde L. in April 2002 that Luciano had sexually abused her. Tayde L., however, said that Jessica subsequently recanted her story and that Tayde L. believed Jessicas original accusation was untrue and that Jessica was attempting to manipulate her parents so she could spend more time with her boyfriend. Accordingly, Tayde L. did not take Jessica to a doctor for examination and, although she had intended to enroll Jessica in therapy, never actually did so. Luciano denied sexually abusing any of his children.

Megan L., Jessicas and Vanessas five-year-old sister, initially told police officers that Luciano L. had inappropriately touched her. All allegations regarding Megan and Luciano L. and Tayde L.s son James were ultimately dismissed by the juvenile court and are not at issue in this appeal.

Upon being notified of the situation by the police, the Department detained the children, placed them in a foster home and filed a petition with the juvenile court under section 300. Prior to the detention hearing, Jessica recanted her accusations in a telephone conversation with one of the Departments investigators and indicated she had not realized she and her siblings would be removed from their home because of her charges.

At the detention hearing Vanessa and her two younger siblings were released to Tayde L. upon confirmation that Luciano L. was not residing in the home. Jessica, who had previously stated she did not want to return home unless she would be safe from her father, remained in foster care. Tayde L. was ordered to attend sexual abuse awareness counseling and Luciano L. was ordered to attend sexual abuse counseling for perpetrators.

In an interview summarized in the Departments jurisdiction/disposition report, Jessica again recanted her accusations. She told the Departments investigator her charges that Luciano L. had sexually abused her were false and had been prompted by heated arguments with her father about Jessicas boyfriend. The investigator noted that Jessica failed to make eye contact and cried frequently as she made her statements. Vanessa told the same investigator that she "kept changing my mind" about whether she believed Jessicas statement four years earlier that their father had touched Jessica. "Sometimes, I think she was telling the truth and sometimes I dont."

The dependency investigator concluded, "It is not unusual for minors to recant child abuse allegations. Such recanting does not necessarily indicate that no abuse took place. Children have been known to recant for various reasons, including but not limited to feelings of guilt, fear, and remorse for disrupting the family. Despite Jessicas recanting it is believed that the father had, in fact, sexually abused Jessica and Megan. Jessica provided sufficient information to the police officers, prior to her detention and to having contact with other family members, to add credibility to her statements."

After the matter was continued for a contested adjudication hearing, Jessica was released to the care of her mother. Luciano L. was ordered not to have unmonitored contact with Jessica.

At the adjudication hearing the juvenile court received into evidence the Departments jurisdiction/disposition report, which included as attachments the report prepared for the initial detention hearing as well as the original police report detailing Jessicas charges against her father, and two supplemental/interim reports. The court also heard testimony from Hermina Ban, the dependency investigator who interviewed Jessica and Vanessa, and from Jessica, Vanessa, Tayde L. and Luciano L. Jessica continued to assert that the allegations against her father were false. "I think all teenagers get mad at their parents and say lies." She explained that she and her father had argued about her boyfriend and she was very angry with him. Once she was in the foster home she retracted the charges because she "didnt want it to go any further because it was a lie."

Following closing argument the juvenile court sustained the petition as to Jessica and Vanessa. Explaining its decision the court emphasized that Jessica had spoken to three police officers, her sister Vanessa and the initial social worker about the sexual abuse by her father and that she had described the different incidents consistently and with great detail. "Taking all of the allegations, taking all of the comments, taking the family structure, the family situation, the kind of allegations and the recantation itself, the reasons behind it, the motive for that, as well as the motive for making the statement in the first place, this court finds by a preponderance of the evidence that these children are [persons] described [by] section 300."

As to Tayde L. the court amended the allegation that she had "failed to take action to protect" her child to state that she "was unable" to protect Jessica. The courts finding was based on the evidence the father controlled the household, as well as the mothers failure to respond to Jessicas report of abuse with any protective measures.

Following the adjudication, the court continued the matter for four weeks for a contested disposition hearing. At the disposition hearing the juvenile court declared Jessica and Vanessa to be dependents of the juvenile court and ordered them placed with Tayde L. with family maintenance services to be provided by the Department. Luciano L. was allowed to have monitored day visitation, and the court specifically approved Tayde L. as a monitor. Both Luciano L. and Tayde L. filed notices of appeal.

This court has been advised that at the six-month review hearing held on July 7, 2003 the juvenile court ordered that Luciano L. could return to the family home.

Jessica has neither appealed from the order declaring her to be a dependent child of the court nor filed a brief stating any position with respect to the courts findings or order. Vanessa, through her appointed counsel, has filed a brief urging us to affirm the juvenile courts findings and orders.

DISCUSSION

1. Standard of Review

We review the juvenile courts jurisdictional findings for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re Tracy Z. (1987) 195 Cal.App.3d 107, 111.) Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the courts order. We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the courts order. Additionally, we may not substitute our deductions for those of the trier of fact. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Eric B. (1987) 189 Cal.App.3d 996, 1004-1005.)

"Substantial evidence" means such evidence as a reasonable mind might accept as adequate to support a conclusion. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

2. The Child Dependency Hearsay Exception

In In re Carmen O. (1994) 28 Cal.App.4th 908, 921 the Court of Appeal created a "`child dependency hearsay exception" permitting the introduction of child hearsay statements recounting sexual abuse at a jurisdictional hearing where the circumstances of the childs assertions provide sufficient indicia of reliability. The Supreme Court in In re Cindy L. (1997) 17 Cal.4th 15, 18, approved the child dependency hearsay exception and articulated certain requirements for admission of such statements: (1) a finding that the time, contents and circumstances of a statement provide sufficient indicia of reliability; (2) either the availability of the child for cross-examination or evidence of sexual abuse that corroborates the childs statement; and (3) adequate notice to other interested parties of the public agencys intention to introduce the hearsay statement. (Id. at p. 29.)

The Supreme Court also held that the childs inability to distinguish between truth and falsehood or to understand the duty to tell the truth did not preclude a court finding from circumstances surrounding the hearsay statement — such as its spontaneity, the precociousness of the childs sexual knowledge and the childs lack of motivation to lie — that the statement bore "special indicia of reliability." (In re Cindy L., supra, 17 Cal.4th at p. 34.)

We review a ruling on the admissibility of evidence under the child dependency hearsay exception under the abuse of discretion standard, including the juvenile courts determination there are sufficient indicia of reliability to allow the out-of-court statements to be considered. (In re Cindy L., supra, 17 Cal.4th at p. 35.) In this case, although both Tayde L. and Luciano L. now argue that Jessicas initial reports of sexual abuse to the police are not reliable, neither parent objected to the admission of the hearsay statements at the jurisdictional hearing. Accordingly, Jessicas detailed descriptions of her fathers continuing sexual abuse were properly before the juvenile court and must be considered in determining whether substantial evidence supports the courts jurisdictional findings. (See, e.g., In re Troy Z. (1992) 3 Cal.4th 1170, 1181 [non-jurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal]; In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 [failure to raise objection in juvenile court and afford that court the opportunity to address the error results in waiver of issue on appeal].)

3. Substantial Evidence Supports the Juvenile Courts Findings of Sexual Abuse

The juvenile court, after reading the reports prepared by the Department (see § 355, subd. (b)) and listening to the testimony of the principals, chose to believe Jessicas original disclosures of abuse rather than her subsequent retractions and her fathers denials of abuse. The court explained that it gave credence to the original accusations because of the consistency and specificity of Jessicas initial accounts to the police officers and the first social worker to whom she spoke. Unless we were to reweigh the evidence or redetermine the credibility of the witnesses, we must affirm the juvenile courts findings based on this record. (See In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)

4. Substantial Evidence Supports the Juvenile Courts Finding that Tayde Was Unable to Protect Jessica

Tayde L. contends the finding she was unable to protect Jessica is unsupported because she was not present when the episodes of abuse took place and no molestation occurred after Jessica told her about the abuse in April 2002. The court, however, based its finding on the fact that Luciano L. controlled the household and the family dynamic was such that Tayde L. was unable (or unwilling) to act to protect her children. Indeed, the evidence is clear that, once Jessica recanted, the mother failed to take any steps to protect her children either by obtaining counseling (as she claimed she intended to do) or by ensuring that they were not left alone with their father. Given the courts finding that repeated acts of serious sexual abuse took place in the home over a four-year period, its related finding that Tayde L. was unable to protect Jessica (and by extension Vanessa) from such abuse is sufficiently supported by the record.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: WOODS, J., ZELON, J.


Summaries of

In re Jessica

Court of Appeals of California, Second Appellate District, Division Seven.
Nov 19, 2003
No. B164222 (Cal. Ct. App. Nov. 19, 2003)
Case details for

In re Jessica

Case Details

Full title:In re JESSICA L. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:Court of Appeals of California, Second Appellate District, Division Seven.

Date published: Nov 19, 2003

Citations

No. B164222 (Cal. Ct. App. Nov. 19, 2003)