Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD07-3102A
McGuiness, P.J.
J.C.R. (Father), father of J.R., appeals from a jurisdictional order finding J.R. to be at substantial risk of suffering harm or sexual abuse due to Father’s sexual abuse of J.R.’s cousin, A.N., who is the same age and gender as J.R. Father contends: (1) the juvenile court erred in admitting A.N.’s out-of-court statements into evidence under the child dependency hearsay exception; and (2) there was insufficient evidence to support the removal of J.R. from his custody. We reject the contentions and affirm the jurisdictional order.
FACTUAL AND PROCEDURAL BACKGROUND
On March 13, 2007, San Francisco Human Services Agency (the agency) filed a petition alleging J.R., then age five, had suffered, or was at substantial risk of suffering, harm or sexual abuse because Father had molested J.R.’s cousin, A.N. According to a jurisdiction report dated March 14, 2007, A.N. disclosed that she and J.R. were playing together when her great uncle, Father, took A.N. to another room. Father asked J.R. if she wanted to come and watch, and J.R. responded, “No! I know what you are going to do to her.” Father left J.R. where she was and took A.N. into his room, where he took off A.N.’s pants, put his finger in her vagina, licked his finger, then performed oral sex on A.N. There was also a report about children complaining that Father “french-kisses them.”
J.R. has two older brothers, one of whom is a minor (15 years old at the time the petition was filed) and was also named in the petition. Throughout this opinion, we refer to that brother as “J.R.’s brother.” The juvenile court later dismissed the petition as to J.R.’s brother and the matter proceeded only as to J.R.
The jurisdiction report stated that social workers Lourdes Rodriguez and Manisha Parikh interviewed J.R. at her school on February 21, 2007. J.R. said she slept in a bed with both of her parents. She referred to A.N. as her “friend” and “sister” and said they played together. J.R. said she had not been touched on her private parts and had not seen anyone hurting or touching A.N. Parikh also interviewed J.R.’s brother at his high school. J.R.’s brother denied he had ever been physically harmed or sexually touched.
Rodriguez, Parikh and an inspector from the San Francisco Police Department interviewed A.N., J.R.’s mother (Mother), and Father on separate occasions. A.N. said that her “peck peck” (her word for vagina) was “red and itchy.” She stated that Father took her into his room, placed her on his bed, took off her pants and underpants and touched her “peck peck.” Mother appeared surprised about the allegations and was certain J.R. was “fine” at home, but was also concerned about J.R.’s safety. Father was “very agitated” and refused to speak with the inspector. He told Parikh he did not touch or clean A.N.’s vagina and never babysat her. Father said “his sister’s family was out to destroy him,” and asked Parikh to warn his sister and her family not to “come close to his home or he may become violent.” He said A.N. is “a brat,” and that if A.N. were his child, he would “beat her.” Father believed A.N. made false accusations because she is jealous of the fact that Father hugs J.R., while A.N. has to ask him for a hug.
A.N. had a medical exam on February 21, 2007, but refused to allow the nurses to inspect her genital area. On February 22, 2007, a forensic nurse interviewed A.N. During the interview, A.N. disclosed that Father took her to the bedroom, pulled her pants down and touched her “peck peck.” She stated “it hurt” when he touched her. J.R. was also interviewed but did not disclose any sexual abuse. The agency expressed concern that A.N. is a family member and is of the same age and gender as J.R. The jurisdiction report concluded: “It is hoped that establishing dependency . . . will allow the agency to mitigate the risks posed by [Father’s] alleged behaviors by assisting the family to access services, including treatment for [Father] and therapeutic support for [Mother] and the children.”
An addendum report dated March 29, 2007, recommended that J.R. and her brother be removed from Father’s custody and temporarily placed in the family home with Mother, pending further investigation and assessment. The report stated that Father had agreed to leave the home.
A disposition report filed May 11, 2007, recommended that the allegations in the petition be sustained and that J.R. and her brother be declared dependents of the court and reside with Mother under agency supervision. The agency recommended family maintenance services to Mother and family reunification services to Father. According to the report, a social worker spoke to J.R., who confirmed that Father was out of the home. When questioned about her playmates, J.R. said A.N. was a liar because she wanted to put her Father in jail. A social worker stated she believed J.R. had been coached or had overheard conversations regarding the allegations. When asked whether she had ever witnessed anyone being touched inappropriately, J.R. changed the subject and talked about “horses and trees in the winter.” A.N.’s mother reported that A.N. had two nightmares on or about March 12, 2007, in which she appeared to be struggling to get away and said, “stop, I don’t like this.”
According to the report, a social worker contacted Father by telephone and by mail to schedule supervised visits for him and J.R. Father refused to speak to the social worker and hung up on her, and did not respond to the letter. The report noted that Mother had moved with her children without informing the agency, and stated “the family will need to be monitored in order to ensure that they follow the recommendations of the [a]gency and attend services provided.”
According to an addendum report filed June 13, 2007, J.R., J.R.’s brother and Mother all confirmed that Father had been to the family home. J.R. said that Father “sometimes” sleeps in the master bedroom with Mother. A social worker informed Mother that the agency might need to remove the children from her care due to the parents’ refusal to follow the court’s orders. Mother apologized profusely and said she did not think it was an issue because Father was not alone with J.R. Father apologized and said he would follow the court orders and set up visits to see his daughter. According to a second addendum report filed June 29, 2007, Father contacted a social worker to schedule supervised visits with J.R. The report noted that J.R.’s brother had gone to Hawaii for a week and that Mother had not obtained permission for him to leave the state. Mother apologized, stating she forgot to call because she was busy at work. Father was referred to a therapist but did not make an appointment, stating he needed to first speak to his attorney. The parents were taking the court orders more seriously but were occupied with their jobs and had not paid much attention to their case.
On September 14, 2007, Father’s counsel filed a document entitled “objections to the admission of hearsay evidence.” In it, he objected to (1) A.N.’s statements regarding sexual abuse contained in the jurisdiction report, (2) a police report describing the sexual abuse allegations, (3) statements in the disposition report relating to A.N.’s nightmares, and (4) statements in the addendum report regarding Father’s failure to follow up with therapy.
At a contested dispositional hearing, Rodriguez testified as an expert in the field of sexual abuse. She stated she was assigned to investigate allegations regarding Father’s abuse of A.N. Rodriguez and an inspector interviewed A.N. at A.N.’s house and began by confirming that she knew her colors, numbers and body parts, and understood the difference between truths and lies. When Rodriguez asked A.N. to identify her private parts, A.N. “immediately went to her genital area and said, ‘this is my peck peck and this is where my uncle [J.] touched me, it was red.’ ” A.N. appeared sad, her voice changed to a softer tone, and her body language changed. Once A.N. made this statement, Rodriguez ended the interview pursuant to agency protocol and contacted the Child and Adolescent Sexual Abuse Advocacy Resource Center (CASARC) to schedule a multi-disciplinary interview for A.N. After A.N.’s interview, Rodriguez watched the videotape of the interview, consulted with her supervisor and with the multi-disciplinary team, which included the CASARC nurse, the forensic interviewer, the district attorney and the juvenile inspector, and concluded the allegations against Father were substantiated, i.e., A.N. was telling the truth. She explained she reached that conclusion because A.N.’s disclosure to a number of adults was “spontaneous [and] very clear and consistent,” and because there was no conflict in the family that would have motivated A.N. or any other family member to make false allegations against Father. Rodriguez did not believe A.N. had been coached by an adult to make up the incident, and noted that children as young as A.N. (who was four years old at the time of disclosure) do not “come out and spontaneously out of no where saying that somebody has touched their body” and repeat the same, specific information consistently on different occasions.
Rodriguez testified that A.N.’s parents were very protective of A.N. and capable of keeping her away from Father. She explained that Father’s mother, who is A.N.’s great grandmother (the great grandmother) used to babysit A.N., and that because the great grandmother lived in the same house as Father’s family (Father, Mother, J.R. and J.R.’s brother), Father always had access to A.N. A.N. also went to Father’s house to play with J.R. and, before the incident, A.N.’s family and J.R.’s family saw each other on a regular basis. As soon as A.N. disclosed the sexual abuse, A.N.’s mother immediately removed A.N. from the great grandmother’s care and had not gone back. A.N.’s parents were also compliant with following up with referrals to therapy. Rodriguez believed A.N.’s mother, who had also been sexually molested as a teenager, was supportive of A.N. and “sa[id] the right things to [her].” Based on these facts, the agency closed A.N.’s case.
Rodriguez opined that J.R. was at risk of sexual abuse because she and A.N. are both girls and are in the same developmental age group. She testified that many of her cases involve perpetrators who molest children of the same gender and in the same age group, and that various articles she read as a student and as a social worker also noted the tendency of perpetrators to target children in the same gender and age groups. Rodriguez testified that in the cases she had handled, it was “[v]ery common” for a man who molests stepchildren or nieces or nephews to go on to molest their own children.
Mary Slaughter, a registered nurse for CASARC, testified that she conducted an interview of A.N. and had the interview recorded on videotape. The videotape was played for the court and was admitted into evidence. Slaughter testified that A.N. demonstrated that Father “placed his hand on her peck peck.”
Social worker Parikh testified she was assigned to investigate J.R.’s case. She testified that neither J.R. nor her brother disclosed any sexual abuse. Mother did not disclose that there was any conflict between her family and A.N.’s family and said they had gotten together on many occasions. Father “immediately became angry” during his interview and stated A.N.’s family was trying to destroy him. Parikh opined that J.R. was at risk because some of the allegations regarding Father’s sexual abuse of A.N. were substantiated, and A.N. is the same age as J.R. She testified that in many sexual abuse cases, perpetrators who molest children outside the home also molest children inside the home. She believed J.R. was at risk because Father was initially not cooperative in signing his case plan and had refused to attend therapy sessions that had been offered to minimize the risks to J.R.
Parikh testified that A.N. did not disclose during her interviews that Father invited J.R. to join them in the room and watch, or that Father performed oral sex on her. These allegations were therefore not substantiated.
Parikh testified that the initial plan in J.R.’s case involved providing the family with family maintenance services and not removing J.R. from Father. The agency changed the case plan because Mother refused to sign her case plan without Father’s consent, Father made violent statements and refused to speak to the social worker, and J.R. appeared to have been coached to say that A.N. was a liar. Mother’s refusal to sign her case plan indicated she was more aligned with Father and may not protect her children against him. Parikh believed J.R. had been coached because she initially talked about A.N. freely, but shortly thereafter could not remember A.N.’s name and became very distressed when A.N.’s name was mentioned. When Parikh asked J.R. whether she played with A.N., J.R. responded, “I don’t play with her because she tried to put my daddy in jail.”
Parikh testified that the parents violated the safety plan in May 2007 by allowing Father to stay at the family home. The agency had referred Father to a therapist but Father did not want to attend without speaking to his attorney. The agency also referred Father to Sharper Futures, but a representative from Sharper Futures said Father did not show up for his intake appointment. Shortly before the hearing, Father told Parikh he did not want to attend therapy sessions because he felt he did not need them. The agency was having difficulty setting up therapy for Mother because of her rigorous work schedule and problems with her insurance company. The parents’ failure to follow the safety plan also indicated the family minimized the risk to J.R. and that protecting her was not a priority for them.
A.N.’s mother, S.G., testified that Father is her uncle (her mother’s brother). She stated she learned of the sexual abuse during a weekend trip she took with her mother, A.N., and others. She stated she was on the bed in her hotel room watching television when she noticed A.N. was “just kind of moving around, kind of scratching in her vaginal area.” S.G.’s mother took A.N. to the bathroom to bathe her. S.G. heard the water running, then heard her mother say, “come on [A.N].” When S.G. went to the bathroom to find out what was going on, S.G.’s mother said that A.N. was not allowing her to clean her vaginal area. S.G. asked A.N. what was wrong, and A.N. said her “peck peck hurts.” S.G. held A.N. up to look in the vaginal area and saw that it was red. When she asked A.N. what happened, A.N. said, “Uncle [J.] hurt me.” S.G. did not ask any more questions because she did not want her family to “look bad” in front of other people. She was also in disbelief. S.G. waited for an opportunity to talk to A.N. alone and in the meantime, tried to treat the redness and hoped A.N. had just had a nightmare and would tell a different story the next time they spoke.
On the airplane on their way home, S.G. sat next to A.N. and asked, “[A.N.], is your peck peck okay?” A.N. said, “ ‘It’s okay, it still hurt, not a lot but just a little bit.’ ” When S.G. asked, “Do you want to tell me what happened?” A.N. said, “ ‘I told you, uncle [J.] hurt me.’ ” When S.G. asked, “Do you want to tell me how he did?” A.N. said she was playing with J.R. in Father’s home when Father carried her to a room and asked J.R. if she wanted to come. After J.R. responded that she did not want to because she knew what was going to happen, Father closed the door, put A.N. on the bed, pulled down her pants, stuck his finger in her vagina, licked his finger, and pulled her pants back on and let her out. She said that her family had a good relationship with J.R.’s family before the incident. The families lived no more than five minutes away from each other and saw each other regularly.
S.G. testified that A.N.’s vaginal area had been red before, but that it was a brighter red and the redness was more spread out than it had ever been. She also noticed that A.N. was resistant when S.G. and S.G.’s mother tried to touch her, and that it was the first time A.N. complained of pain in that area. S.G. testified that A.N. had never made up a story or lied about an ailment or illness. She could not believe what had happened, but she also did not see how A.N. could have come up with the story on her own because S.G. was raising A.N. in a household in which “x-rated activities” were never discussed.
S.G. called a friend who is a nurse and asked her to have a doctor examine A.N. S.G. also told her mother what had happened, and her mother immediately called Child Protective Services to report what A.N. had disclosed. S.G. testified that when she took A.N. to a medical appointment that had been set up by the agency, A.N. was resistant, screaming, fearful, and “fighting against everybody,” and refused to allow anyone to see her vaginal area or touch her legs. S.G. testified it was hard for her to see A.N.’s reaction because A.N. had never before been resistant and had allowed a doctor to examine her vaginal area just one month before the alleged sexual abuse had occurred. S.G. also testified that after the incident, A.N. had nightmares in which she kicked and said, “ ‘No, don’t; no, don’t.’ ”
S.G. testified that the great grandmother babysat A.N. during most of the work week. Father’s family lived on the second floor in the great grandmother’s house, so S.G. saw Father several times a week. A.N. and J.R. were playmates and played together either upstairs in the great grandmother’s home, or downstairs in the Father’s home. S.G. was not sure of the exact date the incident occurred, although A.N. mentioned that her great grandmother had gone to the hospital that day, and that A.N. and J.R. were playing together downstairs in Father’s home. S.G. testified that A.N. had become fearful of Father and that whenever she heard the great grandmother’s name, A.N. recounted what Father had done to her. A.N. recounted the story in the same way each time.
At the end of the agency’s case, Mother’s counsel moved for dismissal of the petition on the ground that A.N.’s hearsay statements had been used to establish the truth of the allegations. The juvenile court, which had allowed the witnesses to testify regarding A.N.’s statements subject to a motion to strike, ruled the statements were admissible because they were consistent and reliable. The court found that S.G.’s observations of A.N.’s vaginal area and her testimony corroborated A.N.’s statements. The court noted there was no evidence of suggestibility because A.N.’s statements were spontaneous and were not made in response to specific questions regarding Father or the sexual abuse. The court also found there was no motive for A.N. to make false allegations against Father.
Father’s sister, M.R., testified for Father. She testified that at the time the sexual abuse allegedly occurred, she was living with her cousin and her mother (A.N.’s great grandmother) in the great grandmother’s house. M.R. testified that on the day of the incident, she took the great grandmother to the hospital and took A.N. with them. M.R. testified she did not see Father at the house at any time before 8 p.m. that day. She testified she did not see Father at the house at any other time that entire week, except during the weekend. M.R. testified that J.R. and A.N. only played together on the third floor and never played in Father’s home.
The great grandmother testified that she no longer babysat A.N. She testified she had a doctor’s appointment on the day A.N. was allegedly sexually abused, and that she and M.R. and A.N. went to the hospital together. Father left the house that morning at 8 a.m. to take J.R. to school. She did not see Father again until about 11 p.m., when he returned from work. She testified she did not see Father at all during the first two weeks of February because during that time, Father always left the house at 8 a.m. and did not return until 9 p.m. or 11 p.m. The great grandmother testified that J.R. and A.N. played together for only a “couple minutes” the day the alleged sexual abuse occurred. The great grandmother testified that J.R. and A.N. always played on the third floor. She stated she followed J.R. and A.N. around and watched them at all times whenever they went downstairs to Father’s home. The great grandmother testified that A.N. once told her a story that was not true.
The great grandmother’s testimony relating to A.N.’s story is difficult to understand. The gist of it seems to be that on one occasion, A.N. said she was going to tell her mother that the great grandmother hit her, even though the great grandmother had not hit A.N. Father’s counsel then asked whether the great grandmother heard A.N. talking to J.R. about A.N.’s parents having sex. The great grandmother’s response was unclear on this point as well. She ultimately answered Father’s counsel’s question by saying, “I don’t know.”
The juvenile court sustained the petition with modifications. It ordered J.R. to remain in Mother’s home and removed her from Father’s custody. It ordered reunification services and supervised visits for Father.
DISCUSSION
The Court Properly Admitted A.N.’s Statements into Evidence.
Father contends the juvenile court erred in admitting A.N.’s out-of-court statements into evidence under the child dependency hearsay exception. We disagree.
California’s child dependency hearsay exception, which applies in dependency proceedings in which sexual abuse is alleged, permits the juvenile court to admit hearsay evidence of out-of-court statements made by a child victim, offered to prove that the abuse occurred, if: (1) the court finds that the “time, content and circumstances of the statement provide sufficient indicia of reliability”; (2) either the child is available for cross-examination or there is other evidence of sexual abuse that corroborates the child’s out-of-court statements; and (3) other interested parties are provided with adequate notice of the agency’s intention to introduce the hearsay statements so that these parties will have an opportunity to contest the statements. (In re Cindy L. (1997) 17 Cal.4th 15, 25-26, 29 (Cindy L.) [Supreme Court validated the child dependency exception to the hearsay rule that was recognized by the Court of Appeal in In re Carmen O. (1994) 28 Cal.App.4th 908, 921-922 (Carmen O)].)
A “nonexhaustive list of factors . . . relevant to the reliability of hearsay statements made by child witnesses in sexual abuse cases 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 pp. 29-30.) “[T]he child’s ability to understand the duty to tell the truth and to distinguish between truth and falsity is also a factor in determining the reliability of his or her extrajudicial statements,” although a finding that a child is unable to understand these concepts does not bar the admission of the statements if other factors show the statements are reliable. (Id. at pp. 30, 35.) A reviewing court will not overturn a juvenile court’s determination that the child dependency hearsay exception applies unless there has been an abuse of discretion. (Ibid.)
Here, the “time, content and circumstances” of A.N.’s statements exhibited “sufficient indicia of reliability.” A.N.’s age, four, was the same as the declarant in Carmen O., where the court said: “The child here was of a very young age such that it is unlikely that the accusation was fabricated or the product of imagination.” (Carmen. O., supra, 28 Cal.App.4th at p. 921.) Rodriguez testified that A.N. understood the difference between truth and falsity, and no other evidence was presented to dispute that fact. A.N.’s first statements to her mother that her “peck peck hurts” and that “ ‘Uncle [J.] hurt me,’ ” were “spontaneous rather than the result of suggestive or leading questioning.” (See ibid.) She also made a spontaneous disclosure to Rodriguez while being asked to identify her body parts, by “immediately [going] to her genital area and sa[ying], ‘this is my peck peck and this is where my uncle [J.] touched me, it was red.’ ” There was nothing indicating there was any suggestibility during her multi-disciplinary interview during which A.N. disclosed the abuse for the third time.
Father points out differences in A.N.’s statements, including the fact that she told S.G. that Father put his finger inside her vagina and licked his finger, but told others that Father “touched” her vagina. We do not believe these differences render A.N.’s statements inconsistent or unreliable or show the alleged abuse did not occur.
The terms A.N. used to describe the incident were appropriate for her age. Further, her statements, as in Carmen O., were made “not once but several times” to several adults, and the “various recitations were consistent.” (See Carmen O, supra, 28 Cal.App.4th at p. 921.) Also as in Carmen O., the fact that A.N. accused only Father, and did not accuse any other family members including her own father or grandfather with whom she lived, indicated a lack of indiscriminate or random accusations. (See ibid.) Finally, although Father reported to a social worker that he believed his sister’s family was “out to get him” and that A.N. lied because she was jealous of Father’s affection for J.R., there was no evidence presented to support these beliefs, and in fact, Mother told a social worker, and S.G. testified, that the families got along, and no one, including Father’s witnesses, disclosed any conflict among any of the family members.
The second prong of Cindy L. was also met because A.N. was available for cross-examination. When the attorneys argued their positions on the issue of whether A.N.’s statements were admissible, the court asked, “Is there . . . any discussion about the unavailability of this four-year-old child as a witness?” Counsel for Father stated, “Certainly available, she can come in and testify.” The record does not show that Father or any other party asked to cross-examine A.N., but there was no determination that A.N. was unavailable for cross-examination.
Moreover, as noted, the second prong requires only that either the child is available for cross-examination or there is other evidence of sexual abuse that corroborates the child’s out-of-court statements. (Cindy L., supra, 17 Cal.4th at p. 29.) Thus, even if A.N. was not available for cross-examination, S.G.’s testimony regarding the redness in A.N.’s vaginal area, A.N.’s sudden and extreme resistance to being touched in that area by her mother, grandmother, and medical personnel, and S.G.’s testimony regarding A.N.’s nightmares and her fear of Father, all corroborated A.N.’s statements that Father had sexually abused A.N. (See In re B.D. (2007) 156 Cal.App.4th 975, 984 [in the context of dependency proceedings, “corroborating evidence is that which supports a logical and reasonable inference that the act described in the hearsay statement occurred”].) Father complains that there was no medical corroboration and that S.G. may have been overly sensitive to the issue of sexual abuse because she had been sexually abused as a teenager. However, he has cited no authority for his position that there must be medical corroboration for a sexual abuse allegation to be sustained. Further, any issues relating to S.G.’s credibility were up to the juvenile court, and we will not disturb that finding on appeal. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Given the ample indicia of reliability of A.N.’s statements and the existence of corroborating evidence, the juvenile court did not abuse its discretion in admitting A.N.’s statements into evidence.
As to the third prong, adequate notice, Father states in a footnote that “the record does not reveal that [the required] notice was given.” However, the record shows that Father objected to the admission of A.N.’s out-of-court statements on September 14, 2007, before the jurisdictional hearing took place. He was therefore aware that A.N.’s statements, which were the primary basis for initiating the agency’s action to assert jurisdiction over J.R., would be introduced during the hearing. Father does not claim surprise, nor is there any indication of such. In any event, Father concedes that he made “no objection as to notice.” Thus, we conclude the third prong of notice was met, or, in the alternative, that Father has waived the issue by failing to object below.
Father contends the child dependency hearsay exception nevertheless does not apply in this case because the exception should not be used to admit the statements of a victim who is neither the subject of a hearing nor a party to it. He cites no authority for his contention but notes that neither Cindy L. nor Carmen. O., nor the authority on which they relied in creating the exception, expressly states that the exception applies to statements made by a child who is not the subject of or a party to a dependency proceeding. He also states that because hearsay evidence is “inherently unreliable, exceptions to the rule against admitting it should be made cautiously, and only where there is both a substantial need to do so and there are definable circumstances that provide sufficient indicia of its reliability.”
The purpose of the child dependency hearsay exception, however, is to protect children from sexual abuse. (Cindy L., supra, 17 Cal.4th at p. 28 [cases involving sexual abuse of minors create a “substantial need for the class of hearsay evidence contained in the child dependency exception”].) Cindy L. did not expressly or implicitly limit applicability of the child dependency hearsay exception to situations in which the child victim is also the subject of or a party to the dependency proceeding. Instead, it discussed generally the “particular difficulties with proving child sexual abuse” in dependency cases, including the “the frequent lack of physical evidence” and the child victim’s inability or unwillingness to testify, and it expressed concern that the exclusion of child hearsay would “often mean the exclusion of significant, reliable evidence” required for the juvenile court to protect a child from an abusive family relationship. (Ibid.) A.N.’s out-of-court statements, which satisfied the three prongs of Cindy L. and would have been admissible in a dependency case filed to protect A.N. from Father, was also sufficiently reliable to be admitted into evidence in a dependency case filed to protect her cousin, J.R., from the same perpetrator. A.N.’s out-of-court statements were properly admitted into evidence to support the jurisdictional finding as to J.R.
Because we conclude A.N.’s statements were properly admitted into evidence under the child dependency hearsay exception, we will not address Father’s argument that the statements were also inadmissible under other exceptions to the hearsay rule.
Removal from Father’s Custody Was Proper.
Father contends that even if the court properly found jurisdiction in this case, the order should be reversed because there was insufficient evidence to support the removal of J.R. from his custody. We reject the contention.
Welfare and Institutions Code section 361, subdivision (c), provides in part: “A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence [that] . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody . . . [or] [¶] . . . [¶] (4) The minor . . . 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 . . . a substantial risk of sexual abuse without removing the minor from his or her parent . . . .” On appeal from a removal order, the substantial evidence standard of review “ ‘applies to determine the existence of the clear and convincing standard of proof . . . .’ ” (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
There was substantial evidence to support the juvenile court’s finding. A.N. and J.R. were cousins and playmates and were the same gender and in the same developmental age group. Their families saw each other regularly, and A.N. was cared for by her great grandmother in the same home in which Father and J.R. lived. Two social workers, including one who was qualified as an expert in the field of sexual abuse, testified that J.R. was at risk of harm or sexual abuse due to Father’s sexual abuse of A.N. Rodriguez testified that perpetrators target children in the same gender and age groups, and that those who molest their nieces or other relatives go on to molest their own children. Parikh testified that perpetrators who sexually abuse children outside their homes generally also target children inside their homes.
Father states the agency could have used “less drastic means to protect [J.R.] than ordering her father out of the home.” The evidence, however, showed that further intervention was necessary due to Mother’s refusal to sign her case plan without Father’s consent, Father’s violent statements regarding family members and his refusal to speak to the social worker, and the fact that J.R. appeared to have been coached by her parents or others. Further, Father was initially not cooperative in signing his case plan and refused to attend therapy sessions that had been offered to minimize the risks to J.R. Mother’s rigorous work schedule made it difficult for her to protect J.R. from Father, and the social workers believed that protecting J.R. was not a priority for the parents. Under the circumstances, the juvenile court could reasonably find there was clear and convincing evidence that removing J.R. from Father’s custody was necessary.
Disposition
The jurisdictional order is affirmed.
We concur: Siggins J., Jenkins J.