Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kings County No. 09JD0088. George L. Orndoff and Thomas DeSantos, Judges.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Colleen Carlson, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
Danielle K. (mother) and Robert G. (father) were married in August 2003 and divorced in 2006. They had one child together, K.G., one of the two minors subject to the dependency proceedings. After mother divorced father, she met appellant Colton L. (appellant) in 2007, and they had one child together, C.L., who is the other minor subject to the dependency proceeding. Father met and became engaged to Stephanie J., who has two young sons.
After their divorce, mother and father shared physical custody of K.G. In November 2009, mother transferred physical custody of K.G. over to father per their arrangement, and a member of father’s family discovered a large mark on K.G.’s posterior. After K.G. was examined at Hanford Community Medical Center (hospital), Lemoore Police conducted an investigation, and the Kings County Human Services Agency (agency) conducted a Multi-Disciplinary Interview Center (MDIC) interview of K.G. K.G. ultimately informed her interviewers that appellant bit her posterior and touched her “mimi” (her term for vaginal area).
The agency filed a dependency petition and the Kings County Juvenile Court ultimately found that K.G. had been sexually abused by appellant, a member of her household, and that C.L., K.G.’s half sibling, was at substantial risk of similar abuse. The court adjudged both minors dependent children of the juvenile court.
Appellant challenges the decisions of the juvenile court, initially conceding that substantial evidence exists to support the dispositional orders but maintaining that multiple evidentiary errors compel reversal.
STATEMENT OF THE CASE
On November 17, 2009, a nurse at the hospital contacted Lemoore Police to report possible sexual abuse of four-year-old K.G. by her mother’s boyfriend, Colton L.
On November 20, 2009, the agency filed an original juvenile dependency petition in superior court alleging K.G. had been sexually abused by appellant, a member of her household and the father of her half sibling, C.L., and that C.L. was at substantial risk of being similarly abused. (Welf. & Inst. Code, § 300.)
On November 20, 2009, the agency filed a detention report alleging a prima facie showing that K.G. and C.L. were children described by Welfare and Institutions Code section 300, subdivisions (d) and (j).
On November 23, 2009, the court conducted a detention hearing, found a prima facie showing of dependency, committed C.L. to the care and custody of the agency for placement, released K.G. to live with her father, granted supervised visitation between mother and K.G. and C.L., and granted supervised visitation between appellant and his son, C.L.
On November 25, 2009, the agency filed an addendum report recommending the court release C.L. to mother’s custody, remove K.G. from the home of her father and place her in the care and custody of the agency for suitable placement, and grant supervised visitation between K.G. and her mother and between C.L. and his father, appellant. The court adopted the agency’s recommendations and set the matter for a contested jurisdictional hearing regarding K.G. upon request of the parties.
On December 2, 2009, the agency filed notice of juvenile dependency proceedings as to C.L. and K.G. under the Indian Child Welfare Act (ICWA) (25 U.S.C. §§ 1901 et seq.).
On December 2 and 3, 2009, the agency filed addendum reports noting the concerns of social services worker Monika Chancey with respect to a possible coached MDIC interview of K.G. held November 25, 2009.
On December 4, 2009, the court conducted a contested detention hearing and the agency withdrew its motion to have K.G. removed from the custody of her father. The court set a jurisdiction/disposition hearing for January 6, 2010.
On January 4, 2010, the agency filed a jurisdiction/disposition report recommending that C.L. remain at home with mother and that his father, appellant, be allowed to return to the home with family maintenance services provided. The agency also recommended that K.G.’s mother and father receive family maintenance services and share physical custody of K.G., but that appellant have no contact with K.G. The agency noted: “[T]he parents have agreed that on the days that [K.G.] is with the mother, [appellant] will not be in the home.” On January 5, 2010, the agency filed an addendum report recommending the court find the ICWA inapplicable to K.G.
On January 11, 2010, the court filed an order vacating a hearing scheduled for January 12, 2010, pursuant to the stipulation of appellant and father that their respective petitions “be abandoned in light of the December 29, 2009 dismissal, without prejudice, of the underlying action against Mr. Colton [L.]”
On February 4, 5, and 9, 2010, the court conducted a contested jurisdiction/disposition hearing. On February 9, 2010, the court filed two orders after hearing finding the allegations of the petition to be true and finding K.G. and C.L. come within the provisions of Welfare and Institutions Code section 300, subdivision (d).
On February 19, 2010, the agency filed an addendum report noting appellant’s “blatant disregard for the Court’s orders and directives” and recommended he not be allowed to return home, but be allowed to receive family reunification services, and mother and C.L. would be provided family maintenance services. The agency also filed a Child Welfare Services Initial Case Plan.
On February 24, 2010, the court conducted a contested disposition hearing, adjudged C.L. a dependent child of the juvenile court, granted mother continued physical custody of C.L. subject to supervision of the agency and juvenile court, and precluded unauthorized contact between C.L. and appellant. On the same date, the court adjudged K.G. a dependent child of the juvenile court, granted mother and father continued physical custody of K.G. subject to supervision of the agency and juvenile court, and precluded contact between minor and appellant.
On March 2, 2010, appellant filed a notice of intent to file a writ petition and request record for review order designating or denying specific placement of a dependent child after termination of parental rights.
On March 23, 2010, this court filed an order noting the juvenile court orders of February 24, 2010, were directly appealable (Welf. & Inst. Code, § 385) and treating appellant’s March 2, 2010, notice of intent as a notice of appeal (Cal. Rules of Court, rule 8.400(c)).
We affirm the jurisdictional findings and dispositional order.
STATEMENT OF FACTS
Facts Elicited from Agency and Lemoore Police Department Reports
Minor K.G.’s parents had been divorced for over three years at the inception of the proceedings underlying this appeal. Mother had custody of K.G. 51 percent of the time and father had custody of K.G. 49 percent of the time. Each week K.G. stayed with her father from 9:00 a.m. on Sunday until noon on Wednesday. The remainder of the week she stayed in Lemoore with her mother and her mother’s boyfriend, Colton L, appellant herein. Mother and appellant had an 11-month-old son, C.L., who also lived with them.
On November 15, 2009, one of father’s parents picked up K.G. from mother’s house at 9:00 a.m. Father picked up K.G. from his parents’ home at 3:30 p.m. On the afternoon of November 17, 2009, K.G. went to the home of her paternal aunt, Tiffini, for a visit. Tiffini gave K.G. a bath that evening and noticed what she believed to be a bite mark on K.G.’s posterior. Tiffini contacted father about the mark. Father and his fiancée, Stephanie J., went to Tiffini’s house and spoke to K.G. K.G. first claimed the mark was a mosquito bite and then said that one of Stephanie’s sons “did it.” K.G. ultimately reported that appellant had bit her on the bottom and put his finger in her “mimi.” Father, Stephanie, and Tiffini took K.G. to the hospital.
At 10:00 p.m. on November 17, 2009, Lemoore Police Officer Alberto Avelar interviewed father, K.G., Stephanie, Tiffini, and emergency room nurse Debbie Pollock at the hospital. Lemoore Police Detective Jeannette Hanes went to the hospital during the early morning hours of November 18, 2009, spoke with witnesses, photographed the mark on K.G.’s posterior and bruises located elsewhere on her body, and collected other evidence. Nicole Lucero, a forensic interviewer from the Kings County District Attorney’s office, interviewed K.G. on November 25, 2009. Father consented to a forensic medical examination of K.G. for evidence of sexual abuse.
During the investigation, mother allowed law enforcement officers to photograph the interior of her residence. Officers found marijuana and a smoking pipe in a black cabinet just inside the front door of mother’s home. Mother told officers the marijuana belonged to appellant.
Lemoore Police Department officers signed temporary custody and detention forms for K.G. and C.L. and the agency took custody of the minors on November 18, 2009. K.G. was placed with her father, and C.L. was placed in foster care. On November 20, 2009, the agency filed a juvenile dependency petition in superior court (Welf. & Inst. Code, § 300, subds. (b), (d)) and set a hearing date for November 23, 2009. On November 23, 2009, numerous family members gathered for the detention hearing and a brawl took place in the lobby, necessitating the presence and intervention of five bailiffs. That same day, the court conducted an initial hearing on the petition, ordered K.G. released to father, and ordered C.L. removed from his parents’ home and placed in the temporary custody of the agency.
Social worker Chancey reported that Pat Oliver, a Kings County public health nurse, worked with the agency as a foster care nurse. Oliver examined the photographs of K.G.’s posterior and offered to testify that the marks did not resemble a bite mark or bruise. In Oliver’s view, a minor’s skin has “compromised integrity” and tends to wrinkle, bruise, and crease easily from contact with blankets and clothing. In Oliver’s view, the coloring of the marks suggested they were fresh, i.e., less than 24 hours old.
Chancey met with mother and appellant on November 24, 2009. Appellant said he had always guarded against any type of inappropriate contact with K.G. and did not bathe or discipline her, although he described their relationship as playful. He also informed Chancey that K.G.’s father had threatened to take her away from mother on prior occasions, to make their home situation tense.
On November 25, 2009, the agency requested that C.L. be returned to the custody of mother and that K.G. be removed from father’s custody and placed in a neutral foster care setting. The agency recommended that K.G. be placed in out-of-home care because “the Agency is of the opinion if [K.G.] resides with either parent, there is a substantial risk of further contamination of whatever testimony [K.G] could ultimately provide to this court.”
In response to questioning, mother told Chancey she did not observe any marks on K.G.’s posterior prior to the minor leaving her home on Sunday morning, November 15. Mother said K.G. may have had bruises or scrapes on the front of her legs because she “is a tomboy and plays rough.” Mother reviewed digital photos of K.G.’s posterior taken on November 18 at the hospital and told Chancey the pink spots on K.G.’s posterior looked like a gnat bite rather than a bite mark. Mother also said father did not consult with her before taking K.G. to the hospital and making accusations about bite marks.
Chancey attended the MDIC interview in K.G.’s case on November 25, 2009. According to Chancey, K.G. consistently denied being the subject of inappropriate touching during the first 30 minutes of the interview. After the first half hour, “close ended/leading questions” were asked, such as “Did Colton [L.] touch your mimi?” K.G. responded, “Yes, he touched my mimi with his finger and put it in his mouth.” K.G. then made a gesture by placing her finger in her mouth.
In making an assessment, Chancey acknowledged the existence of conflicting evidence with respect to the allegations of the dependency petition. Chancey observed:
“Although there has been some disclosure by [K.G.] that fondling may have occurred, that disclosure is confounded by inconsistencies and the grave concern that the child may have been coached. Of equal concern to the Agency is the validity and reliability of the MDIC interview which occurred just today. Based upon the conflicting evidence gathered thus far, combined with the acrimonious relationship between the parties in this case, the Agency is of the opinion that if [K.G.] resides with either parent, there is a substantial risk of further contamination of whatever testimony [K.G.] could ultimately provide to this Court.”
Chancey recommended that the juvenile court detain K.G. and place her in out-of-home care.
At the November 25, 2009, detention hearing, the juvenile court authorized the return of minor C.L to his mother on condition that appellant leave the family home. The court also authorized the agency to have an expert review the recorded MDIC interview of K.G. The court set the matter for a contested hearing regarding placement of K.G. pending the jurisdictional hearing.
On December 2, 2009, the agency filed a report addressing concerns about the integrity of the MDIC interview of K.G. The report incorporated by reference a memorandum prepared by Robert Isenberg, a certified forensic interviewer and agency program manager. Isenberg stated he reviewed the MDIC interview and the agency addendum report of November 24, 2009. Isenberg concluded the addendum report contained several inaccurate conclusions and statements about K.G.’s MDIC interview. According to Isenberg, forensic interviewers are trained to ask a variety of questions based upon free recall, focused recall, multiple choice, and “yes” or “no” answers. Such questions can be posed in a manner in which they are direct but not leading. Isenberg said a leading question contains both the “who” and the “what” within the question and such questions greatly increase the likelihood of suggestibility.
In Isenberg’s opinion, K.G.’s forensic interviewer phrased questions that ranged from indirect to direct but did not ask a leading question that resulted in K.G.’s disclosure of abuse. Isenberg noted the addendum report set forth the question: “Did Colton [L.] touch your mimi?” Isenberg said he examined the video of the interview and said this question was never asked during the interview and was not the question that elicited K.G.’s disclosure about improper touching. Rather, K.G.’s disclosure came when the interviewer asked if she had talked to a police officer. K.G. responded, “Yes, ” and when asked about the topic of her discussion with the officer, K.G. said appellant had touched her “mimi.” After K.G. made the disclosure, the interviewer made statements repeating K.G.’s answers in order to obtain confirmation.
Isenberg said the one hour duration of the interview was “not an uncommon time frame in which an interview is completed.” In Isenberg’s view, K.G. provided very credible information during the MDIC interview. When K.G. told the interviewer that appellant had touched her “mimi, ” she also said he put his fingers in his mouth and demonstrated his gesture. K.G. also mimicked her mother sternly saying, “No Colton [L.], don’t do that every every more.” K.G. also said appellant responded, “Yes Danielle, OK.” Isenberg noted this was the only time in the interview that K.G. referred to her mother as Danielle.
On December 4, 2009, the agency withdrew its motion to have K.G. removed from the care of her father, and K.G. remained placed with him. The court set a jurisdiction/disposition hearing for January 6, 2010. On the latter date, the court set the matter for a contested jurisdiction/disposition hearing on February 4, 2010. On February 4, 2010, counsel for the respective parties stipulated to the admission of the CD, DVD, and transcript of K.G.’s November 25, 2009, MDIC interview. Counsel for the agency submitted the matter “on the reports” and said he was not going to call witnesses during the case-in-chief. These reports included: (1) the transcription of the November 25, 2009, MDIC interview with K.G.; (2) the January 5, 2010, addendum report; (3) the January 4, 2010, jurisdiction/disposition report; (4) Indian Child Welfare Act (ICWA) notices; (5) the December 3, 2009, addendum report; (6) the November 25, 2009, addendum report; and (7) the DVD of K.G.’s November 25, 2009, MDIC interview and the DVD of the audio only and photos relating to that interview.
Testimony at the Contested Jurisdiction/Disposition Hearing of February 4, 2010
Testimony of Christy Watts
Christy Watts, the author of the January 4, 2010, jurisdiction/disposition report, said the precise date of alleged abuse was unknown but the agency became aware of it on November 18, 2009. Watts testified that K.G. said the alleged abuse happened one time and “[w]hen the child was observed at the hospital there wasn’t a definite either way as to whether it was a bite mark or not from a human.…” Watts said the Lemoore Police Department took pictures of K.G.’s posterior. Watts identified a red mark circled by several smaller marks on K.G.’s posterior. Watts said she was not the original investigating CPS worker in the case and had not personally interviewed K.G. Watts said she obtained information through reports or conversations with others. However, Watts said K.G. informed her mother about the alleged bite mark sometime after she sustained it. Watts said K.G. disclosed this fact at the hospital and also during the MDIC interview. Watts confirmed that a November 25, 2009, Lemoore Police Department report mentioned a biting incident. According to the report, an officer asked K.G. if her mother knew that appellant had bitten her and K.G. said, “Yes.” K.G. said she told her mother that appellant had bitten her and mother admonished him saying, “Colton don’t do that no more.” At the subsequent MDIC interview, K.G. said she had talked to a police officer and told the officer, “[C]oltie touch my mimi.” Watts reviewed the transcript of the MDIC interview and noted the interviewer never specifically asked whether appellant had “touched her mimi.” At the MDIC interview, K.G. said her mother admonished appellant, “[D]on’t do that anymore to my daughter.” Watts testified that K.G. told her father she had been bitten by a mosquito.
Watts said a forensic medical report attached to the Lemoore Police Department report did not reflect physical injury to the child by molestation. She said that conclusion was the finding of the Sexual Assault Response Team (SART) exam and Watts said she based her opinion that K.G. was molested on the child’s statement. Watts was not present during the MDIC interview. However, in reviewing the transcript of the MDIC interview, Watts noted that K.G. said Stephanie J.’s four-year-old son had touched her on the “brain” and “butt” and Stephanie J.’s other son touched her on the brain. Watts said K.G. referred to her posterior area as her “butt” and to her vaginal area as her “mimi.”
On cross-examination, Watts testified that no health care professional had confirmed the mark on K.G.’s posterior was a bite mark. Watts also noted that at the MDIC interview, K.G. said she told her father that Stephanie J.’s four-year-old son kept bugging her. According to the Lemoore Police report and the MDIC interview transcript, K.G. put her finger up and demonstrated a circular motion when she was asked how she was touched. The police report also indicated that the molestation occurred while K.G. was watching “The Wizard of Oz” on television.
Watts said fellow social worker Edgar Manriquez was the first social worker to appear on the case at the hospital. However, Lemoore Police told him not to interview K.G. because they wanted to set up an MDIC interview and thus not subject K.G. to multiple interviews and possible confusion and manipulation of the minor. During the MDIC interview, the interviewer never specifically asked K.G. whether appellant had touched her “mimi” or touched her anywhere. Watts said the fact K.G. used her mother’s first name and changed her tone of voice had significance on Watts’s opinion as to K.G.’s truthfulness. Watts also said, “The gesture as far as her finger making a circular motion was very big [in term of Watts’s formulation of an opinion as to K.G.’s truthfulness].” Watts said the Lemoore Police reported that K.G. made a similar gesture when she said appellant allegedly touched her.
Watts also said she made several home visits and saw K.G. play with Stephanie J.’s four-year-old. Watts said she did not observe anything inappropriate between the two children. She agreed it was theoretically possible that the son could have done something to K.G. in the father’s home prior to the custody changeover at 9:00 a.m. on November 15. In the MDIC interview, K.G. said Stephanie’s son did something to her buttocks with a shoe and said that it hurt. K.G. was not bathed on the evening of November 15 because it was too cold. Her next bath occurred in the early evening of November 17 and at that point her paternal aunt, Tiffini, observed the marks on K.G.’s posterior. When father learned of the mark, he asked K.G. about it, and she said it was a mosquito bite. He disagreed with her statement, asked who did it, and she said she could not tell him. According to the Lemoore Police Department report, appellant told K.G. she would not see her mother again if she told anyone about the source of the mark.
Watts said she received MDIC interview training at the Wynona State University National Child Abuse Center in Minnesota. Based on her training, Watts said a four-year-old like K.G. “would be able to identify who and what and possibly when. The when is questionable and as they get older they are able to identify more specific facts.” Watts said she reviewed Officer Avelar’s interview with father at the hospital and Detective Hanes’s later interview with father at the Lemoore Police Department. Based on her training as an MDIC interviewer, Watts did not believe father “coached” K.G. to blame appellant for the mark. In the view of Watts, K.G.’s statements to the police officer and to the MDIC interviewer were consistent with what father conveyed as K.G.’s initial disclosure. Watts noted K.G. was afraid “to tell” during the initial disclosure but never said she was afraid of appellant or that he was going to hurt her.
The February 5, 2009 Domestic Violence Incident
On February 10, 2009, mother filed a request for order (domestic violence prevention) in superior court (case No. 09DV0020). In a supporting declaration, she alleged she had picked up appellant from work on the afternoon of February 5, 2009, and informed him that father had asked to spend additional time with K.G. Appellant accused father of wanting to spend additional time with mother and was using K.G. as an excuse. Mother called appellant a liar and the discussion escalated into a physical confrontation at their shared apartment. Appellant opened the apartment door so fast and hard that the interior door knob punched a hole in the wall. He called mother a “bitch, ” punched a hole in an interior door, and screamed profanities at her. Six-week-old C.L. and three-year-old K.G. were present during the confrontation. Mother was holding C.L. in her arms and refused appellant’s demand to turn the newborn over to him. Appellant grabbed the back of mother’s hair with his fist and pulled down on it. He simultaneously tried to remove C.L. from her arms.
Mother tried to call for help and appellant directed her to put her cell phone down so he could “beat the f*** out of me.” Mother began crying and screaming for help. Appellant prevented her from leaving the apartment, spat in her face, yelled more obscenities, and grabbed and bruised her arm. At one point, appellant told her she “deserved to be molested as a little girl throwing it in my face.” He also ripped the cord of the house phone from the wall to prevent her from calling the police. Appellant departed but eventually returned to the apartment. Mother and her neighbor made separate calls to the police, and officers arrested appellant about a half -hour after the neighbor’s phone call.
In the same supporting declaration, mother described several prior incidents of abuse. On one occasion, neighbors in the apartment house contacted police because of screaming that was taking place in her apartment. Mother declared: “I was pregnant at the time and my daughter was present as well. He [appellant] punched a hole in the bedroom door and broke some things in the apartment.” Mother said appellant departed before police arrived and took her statement. On another occasion, appellant angrily ripped a hallway rail from a wall. The rail led up the stairs to her apartment and apartment maintenance personnel fixed it because then three-year-old K.G. used the rail to negotiate the stairs.
On March 20, 2009, father filed an order to show cause for modification of visitation, child custody, and child support. Father sought sole legal and physical custody of K.G. with supervised visitation for mother. Father alleged mother “is continuing to have a relationship with a person who is a danger to herself and to her children so much so that she requested and was granted a domestic violence restraining order against him.”
Watts said father attempted to change the custody orders relating to K.G. after the domestic violence incident occurred between appellant and mother. Watts recalled one previous CPS referral prior to the current allegations of molestation, but she could not recall the nature of the referral.
On March 16, 2009, mother filed a declaration in support of a stipulation for modification of child custody and visitation. Mother claimed both she and appellant made “poor decisions” which led to the restraining order and asserted “it is in the best interests of our son to have both parents involved in his day to day care.” She requested joint legal and custody of C.L. with mother and appellant each spending 50 percent of the time with C.L. “with a weekly exchange.” She requested dissolution of the restraining order and said she would not testify because appellant’s “actions were not criminal in nature; this was a mutual argument/disagreement.” On March 30, 2009, the court modified the custody order and dissolved the restraining order.
At the jurisdictional hearing, appellant testified he ultimately pled to spousal abuse but said, “I didn’t want to plea to anything. I didn’t want to agree to anything.…”
Testimony of Mother
Mother testified she was the mother of K.G. and C.L. In November 2009, she shared custody of K.G. with K.G.’s father. K.G. never told mother that appellant had hurt or bitten her in mid-November 2009. She examined a photograph of K.G.’s posterior and said the red dots above the larger mark looked like flea bites to her. At the time she turned K.G. over to father for his weekly visitation, she did not see any bruises or red marks on her posterior and said K.G. had not complained about being hurt in the area of her posterior. Mother said K.G. never accused appellant of hurting her on the posterior and never told her that he touched her “mimi.” Mother said she never told K.G. not to talk about appellant touching her “mimi.” Mother said “if anybody at all had ever hurt my child, that person would pay. If [K.G.] came to me and said someone had hurt her they would pay for what they did.”
Mother said she did not have a good relationship with father with respect to the custody of K.G. She explained, “[T]his last time we went to family court he threatened to take [K.G.] away from me if I began dating my son’s father, [appellant], again. That’s when he took me to court for full custody.” She said the family court left the existing custody arrangement in place and “I have her Wednesday at noon until Sunday morning at 9:00 a.m. and he has her the remainder of the time.”
Mother said social workers did not talk to her before detaining K.G. Lemoore Police asked mother about watching the motion picture, “The Wizard of Oz.” She told officers the film was broadcast on Saturday evening at 8:00 p.m. on the TNT network. She told officers she never left K.G. alone and they watched the whole movie together. Mother also said the officers asked her about her son and biting. She said C.L. had seven or eight teeth and “bites a lot.” She admitted that C.L. had bitten her arm and had bitten K.G.
When asked about K.G.’s truthfulness at the MDIC interview, mother said her daughter might have been confused because she had said “two other things that possibly could have happened during that time. And because my child has never come to me and never told me anything and … it’s hard for me to believe.” Mother said she had noticed changes in K.G.’s behavior since the alleged incident. During one supervised visitation, K.G. sucked on mother’s arm and neck and tried to physically kiss her mother “like an adult would kiss another adult.” On other occasions, K.G. would cry and “physically shut[] down” when it came time for her to leave.
Mother said she spoke with social workers Monika Chancey, Christy Watts, and Carmen Brieno about the alleged incident. She told Chancey and Watts the alleged incident never happened. She told Watts she did watch a movie with K.G. “and that night I actually slept in the same bed with my daughter until the morning time and that [K.G.] never disclosed anything to me that morning before she left my custody.” The broadcast started at 7:30 or 8:00 p.m. and K.G. fell asleep at about 10:00 p.m., while she was watching the movie. Mother went to bed at 12:45 a.m. K.G. awakened at about 1:00 a.m. and mother and daughter went to sleep in mother’s room. They slept together until 6:00 a.m. when C.L. awakened. Appellant did not wake up until about 8:30 a.m. that day. Mother said K.G. was happy as she left her custody later that morning. K.G. gave appellant a hug and wished him a happy birthday. She said appellant picked up K.G. and K.G. hugged and kissed him for his birthday. Mother said appellant loves K.G. as if she were his own child. Mother said appellant was more cautious in playing with K.G. than in playing with C.L. She explained he would nibble and tickle C.L. but “really wouldn’t do that with [K.G.] because he just didn’t feel it was appropriate.”
Mother said she never told appellant “don’t do that again” with respect to sexual conduct. She admitted using that phrase when he had taken K.G.’s toy and she started yelling and screaming for it. Mother also said appellant did not assist K.G. in using the restroom, bathing, or getting dressed. She admitted K.G. has an imagination and can get confused. She believed K.G. could have gotten confused about being bitten or inappropriately touched.
Mother did not think it was possible for appellant to have engaged in inappropriate conduct with K.G. “[b]ecause I was there the whole time the Wizard of Oz was on with my child and I was there present in the room sleeping next to her and I would have known if someone came in there.” Mother also said she never leaves K.G. alone with appellant and noted the family court had restricted him from being alone with K.G. because of a February 5, 2009, domestic violence incident between him and mother. Mother said appellant was taking classes to address the incident. Mother said she and father were married in 2003 and divorced in 2006.
Mother and father went to court many times to deal with the custody of K.G. She said father had sent her threatening text messages. She met and started dating appellant in 2007. Upon stipulation of counsel, the court took judicial notice of the domestic violence case between mother and appellant. Mother said appellant blocked her from leaving their home with C.L. on February 5, 2009, grabbed her arm, spit in her face, and ripped out a telephone cord from the wall. K.G. was present during the incident. Mother filed for a restraining order on February 10 and CPS questioned her on March 27 at her aunt’s home. She was not living with him at that point. She acknowledged that father was aware of the February 5, 2009, domestic violence incident with appellant and encouraged her to obtain the restraining order against appellant. The restraining order was dissolved in March 2009 and she and appellant were granted joint legal and physical custody of their son, C.L. Mother said the case was voluntarily dismissed on her part. Appellant began a one-year program of domestic violence prevention classes in May 2009 and mother began living with him on September 1, 2009.
Testimony of Jasmine Baez
Baez testified her daughter went to school with K.G., and the two girls had a play date at mother’s home on the afternoon of November 13, 2009, the Friday preceding K.G.’s visit to the hospital. Baez said the girls made cookies and pizza with their mothers, and K.G. made friendly comments about appellant. K.G. said she loved appellant appeared comfortable in his presence, and made no complaint about an injury to her posterior. On October 30, 2009, the week before Halloween, Baez went on a school Halloween parade with her daughter and K.G. K.G. was really tired and began crying. When Baez asked if she wanted her mother, K.G. said she wanted appellant.
Testimony of Monika Chancey
Chancey testified she was a social worker in the emergency room unit of the agency division. She said she was a graduate of the Title 4E child welfare program and had taken classes in child abuse, culturally appropriate interviewing techniques, and forensic interviewing techniques, but not MDIC interviewing. Chancey said she was the author of the initial detention report and co-author of the addendum reports filed November 25, 2009, and December 3, 2009. Chancey said K.G. was detained because of a bite mark and alleged sexual abuse. The information for the detention report came from the initial investigation of on-call social worker Edgar Manriquez. Manriquez told Chancey he did not interview K.G. prior to preparation of the detention report because a Lemoore Police officer advised him the child had made a spontaneous disclosure. Chancey said father advised Manriquez that a court order prohibited appellant from being around K.G. However, the actual order precluded appellant from being alone with K.G. Chancey did not become aware of the actual terms of the order until she interviewed mother on the Thursday following K.G.’s detention.
Chancey said she wrote most of the addendum reports except for the assessment and evaluation portions. Chancey said court supervisor Susan Turner wrote those portions of the addendum reports.
Chancey explained the policy in Kings County “is that if a child is detained the investigating social worker completes their narrative and hands it off to the court social worker who picks it up and writes the detention report onto [the jurisdiction/disposition report].”
Chancey said she had concerns about the detention of K.G. because no social worker had interviewed mother as of the Thursday following the detention and the agency had not been part of the investigation when Lemoore police interviewed K.G. Chancey said her detention report recommended that K.G. be removed from father’s custody and placed in a foster home pending the MDIC interview. Chancey explained the agency had a staffing meeting and arrived at the recommendation based on several points. Chancey explained that nurse Pat Oliver advised that the mark on K.G.’s body did not resemble a bite mark.
Chancey testified about the contents of her addendum report filed November 25, 2009. She said she was present during the MDIC interview and was concerned because for 30 minutes K.G. consistently denied that she had been inappropriately touched by anyone. Chancey was also concerned that leading and suggestive questions were used during the MDIC interview. Chancey admitted that the MDIC interviewer never specifically asked K.G. whether appellant touched her “mimi.” Chancey’s written addendum report of the MDIC interview nevertheless included such a remark. Chancey said she spoke with Robert Isenberg after he reviewed the MDIC interview audio recording. She said she was “horrified” that she misheard the MDIC interviewer’s question and offered to resign, but Isenberg declined to accept her resignation. Chancey’s addendum report indicated the interviewer employed leading questions and had less than full accreditation or validity. However, at the jurisdiction/disposition hearing Chancey conceded that program manager Robert Isenberg was more qualified to review the competency of the MDIC interviewer.
Chancey also acknowledged that the first several pages of the MDIC interview transcript did not reflect any leading questions about inappropriate touching of K.G. Chancey also reviewed the MDIC interview transcript for purposes of the jurisdiction/disposition hearing and said the total interview time was 30 minutes and that questions about touching occurred at the end of the interview. Chancey pointed out that K.G. had to wait in the lobby for “a good amount of time” before her MDIC interview and “children become antsy and try to give the answers sometimes that they think that the grown up is looking for.”
Chancey never spoke to K.G. prior to the detention but did speak to her during postdetention visits. However, they never discussed the difference between something that was true and something that was not true. Chancey acknowledged it is fairly common for a child to deny allegations of molestation. Chancey nevertheless maintained the MDIC interviewer’s questions about differentiating between colors did not test K.G.’s ability to distinguish a true statement from a false statement, given her age. Chancey admitted the interviewer did appropriately ask questions to determine K.G.’s developmental milestones and understanding of relational concepts.
Testimony of Pat Oliver
Pat Oliver testified she was a foster care nurse with the Kings County Health Department and had Associate of Science and Bachelor of Science degrees in nursing. Oliver said she had seen three or four bite marks on children during her seven year tenure as a foster care nurse. On November 18, 2009, Monika Chancey showed Oliver some photographs of K.G.’s posterior. Oliver explained, “I was shown those photographs in simple terms to see what I thought they were.” Oliver said Chancey did not formally ask her for an opinion but did specifically ask whether the photographs depicted any marks on the child. Oliver said she provided her opinion to Chancey but the juvenile court sustained objections to the reiteration of that opinion at the jurisdictional hearing. According to Chancey’s addendum report, in Oliver’s view “the marks on the minor, [K.G.’s] buttocks do not resemble that of a bite mark” or a bruise. Oliver advised Chancey that “[K.G.’s] skin appears to have ‘compromised integrity[, ]’ meaning that the skin appears to wrinkle, bruise or crease easily as evidenced by the marks left on the minor’s backside from the blankets and pajamas worn.” Oliver did not believe the marks were “fresh, ” advising Chancey they were less than 24 hours old, based on their coloring.
Testimony of Father
K.G.’s father testified he was authorized to pick up K.G. from mother at 9:00 a.m. on Sunday, November 15, 2009. Because father was working, one of his parents picked up K.G. K.G. stayed at the home of her paternal grandparents until father finished his shift at 2:00 or 2:30 p.m. He picked up K.G. and the sons of his fiancée, and took the children to the playground. They played T-ball, ran, and the children went down a 10-foot slide. Father said K.G. was playful and did not express any concerns to him. He did not observe K.G.’s posterior that day. He went to work on Monday and Stephanie, his fiancée, stayed at their apartment with K.G. K.G. had known Stephanie since May 2009. Stephanie helped K.G. take a shower on Monday, November 16. Stephanie expressed concerns that K.G. had been acting “different, ” but Stephanie did not say anything about bruising. Father explained that K.G.’s preschool had called him about a month before the bruising and advised that she was throwing herself down and kicking and screaming. Father testified, “[T]hat just wasn’t her and that’s when the concern began.”
On November 17, father helped K.G. take a shower by turning on the water, but he did not observe her buttocks. Later that same day, K.G. took a bath at the home of father’s sister, Tiffini. K.G. stayed with Tiffini about four hours. At some point during those four hours, Tiffini sent father a text message and reported a mark on K.G.’s posterior. K.G. had already completed her bath and gotten dressed by the time father arrived at Tiffini’s home. Father spoke with K.G. at Tiffini’s home sometime between 8:00 and 9:30 p.m. Father pulled down K.G.’s pants, saw the mark, and said it was “two and a half, three inches in diameter, approximately.” Looking at photographs of K.G.’s posterior, father said the mark appeared to be “a generalized red splotch” on her right buttock.
After looking at the mark, father spoke with K.G. and asked how she received it. K.G. said the mark was a mosquito bite. Father said mosquito bites do not usually leave marks and he kept questioning K.G. She said at least five times the mark was a mosquito bite. When father asked whether Stephanie’s four-year-old son had made the mark, K.G. answered in the affirmative. Father said he did not believe that and asked her, “[W]ho really did it[?]” K.G. said she could not tell him because she was scared. Father acknowledged that K.G. could have received the mark at preschool or going down the playground slide. However, he believed someone had made the mark “[b]ecause that bruising did not look normal.” Father asked why K.G. was scared and she looking away, started playing with her dolls, and wanted to avoid the question.
Father said in his experience if Stephanie’s four-year-old son did anything against K.G., such as looking at her “weird” or taking her toys, she would immediately tell father. Father explained, “[A] bite or a hit or anything like that, to go untold would have been very, very uncommon.”
Father told K.G. she did not have to be scared, that she would not be in trouble, and nobody would be in trouble. Father and Stephanie then held K.G. for 10 to 15 minutes, told her she was not going to be in trouble, and that everything was going to be okay. Father said it normally does not take so much questioning to get a response from K.G. After he and Stephanie reassured her for 10 to 15 minutes, K.G. said that appellant did it. Father said he might have directly asked K.G. whether appellant did it, but K.G. did not respond. Later in his testimony, father reviewed a Lemoore Police report from November 17, 2009, and said he would have told the interviewing officer if he had, in fact, brought up appellant’s name first. Father explained that K.G. likes to talk and this encounter with her was “unlike any experience we’ve ever had.” He also said K.G. had bruises on her legs before but when asked about them, K.G. would say, “I fell down. I did something along those lines.” Father said once she was assured that no one was going to be in trouble, “she came out and said Coltie [nickname for appellant] did it. Coltie bite [sic] me.”
Father said the questioning of K.G. took between 20 and 30 minutes. He asked K.G. whether appellant did anything else to her, and he said K.G. “made a hand gesture and responded saying, yes, he do this to my mimi.” Father said he had concerns about appellant because of the February 2009 domestic violence incident involving mother. After that incident, mother moved in with father for about one month, and father filed a motion for modification of child custody in mid-March 2009. The court took judicial notice of the order to show cause (OSC) filed by father on May 20, 2009, in Kings County (case No. 06FL0497). In the OSC, father filed a declaration referring to appellant as a “loser, ” “trash, ” and “lowlife.”
Father said he broke down emotionally after K.G. said that appellant did something to her. Sometime between 9:00 and 10:00 p.m., Tiffini, Stephanie, and father took K.G. to the hospital for examination.
Testimony of Appellant
Appellant testified he had been seeing mother for two and one-half years and resided with her during the month of November 2009. He said K.G. and mother watched “The Wizard of Oz” on television on the evening of November 14, 2009. The television was in K.G.’s room. They called him to watch the “lollipop kids” scene with them and he did so. He estimated this took place sometime between 8:45 and 9:00 p.m. After watching a portion of the movie with them, he returned to his bedroom to watch games and play online poker. He said the family law court restricted him from being alone with K.G. and from being at certain sporting events.
Appellant said he does not dress K.G. As to bathing K.G. and C.L., he said:
“[I]t’s common sense. I mean, it’s not my daughter, as a father I wouldn’t want no man bathing my daughter. When my son takes a bath, they do take a bath together so the only times I will be in there is when [K.G.] or [mother] needs to go and get a towel and, you know, I prep the bath. There’s been an occasion … maybe occasion or two where I put soap on [K.G.’s] head, maybe even on her back because she feels left out at times when being around my son, you know what I mean? I like to make them feel equal so [K.G.] gets jealous at times with things that we are doing with [C.L.], whether it be playing, nibbling on her, you know, [C.L.]. She likes to be a part of whatever, you know, and that’s – we try to treat the kids equally.”
Appellant acknowledged telling social worker Chancey that he did play “nibble” with K.G. on two or three occasions. He explained, “I do not want her feeling like she is not a party of the family so I will nibble on her side or something, nibble on her, but it’s no where [sic] by that [buttock] area. I wouldn’t even go by that area, she passes gas all day, she is nasty.” Appellant said when he spoke with Chancey, he described his relationship with K.G. as “playful.” He admitted to Chancey that he wrestles, play fights, and engages in rough house with K.G. “[w]hen she initiates it.” He said he wrestles with K.G. only when she is fully clothed. Appellant said on the evening of “The Wizard of Oz” broadcast, he stood in the doorway of K.G.’s room and did not engage in any wrestling or physical activity that evening.
Appellant said he pleaded to one count of spousal abuse in the February 2009 domestic violence incident and started taking a domestic violence prevention class in May 2009. He said mother had a “zero relationship” with her own parents because of a childhood incident. He admitted that he might have said, in the heat of an argument, that mother deserved to be abused as a child.
Testimony of Rebecca Gibson
Gibson said she works for Deborah Carolan & Associates, a marriage/family/child therapist agency in Lemoore. Gibson said the firm provides domestic violence prevention courses for individuals mandated to attend by the courts. Gibson said appellant is one of the clients in her domestic violence class. She testified he has regularly attended for more than half a year and has been a full participant in the classes.
Testimony of Robert Isenberg
Robert Isenberg testified he was a program manager in the agency Social Services Division. He completed a review of the forensic interview of K.G. and prepared a memorandum of his findings. Isenberg said at the time of the review, he was unaware that K.G. had waited for half an hour before the MDIC interview commenced. Nevertheless, Isenberg said that fact did not taint the interview process or cause him to change his opinion. Isenberg said a delay might make a child “a little more antsy, ” but he could not foresee the information gathered in that interview would be tainted.
Isenberg said the MDIC interviewer employed the “Finding Words protocol” and the RATAC process. He explained that RATAC is a five-stage process: “R” stands for rapport building, “A” for anatomical identification, “T” for temporary, “A” for abuse scenario, and “C” for closure. Isenberg said he was a certified interviewer in the RATAC process and in his view the MDIC interviewer used that method in interviewing K.G. Isenberg reviewed the videotape of K.G.’s MDIC interview and did not detect any signs of leading questions or coaching. He said K.G. used age-appropriate language and did not say anything that would suggest she was influenced by someone “from a much older population.” The fact that K.G. may have waited 30 minutes before her MDIC interview would not have changed the findings and conclusions of his December 2009 memorandum. Isenberg did note that his memorandum incorrectly referred to C.L. rather than K.G. as the subject of the MDIC interview.
At the time of the jurisdiction/disposition hearing, Isenberg said his primary duties were as program manager for the agency social services division and as forensic interviewer for Kings County. Isenberg said he watched and listened to K.G.’s MDIC interview before preparing his December 2009 memorandum. He did not review the police report prior to reviewing the MDIC interview but did review the report about 30 minutes after watching and hearing the recorded MDIC interview. When questioned about her statements regarding Stephanie’s four-year-old son touching her and inconsistencies about the day she watched “The Wizard of Oz, ” Isenberg said: “With a four-year-old child, you know, you are looking at a lapse of time in between the interviews where the police interview, the memory could have been fresh. At the time of the forensic interview, you know, her coding of that memory could have been much different.” Isenberg also said he had completed and observed interviews where, aside from an incident of abuse, the child cannot recall specifics. Isenberg indicated in terms of cognitive development, K.G. did not seem to be able to pinpoint time as an adult would.
Isenberg acknowledged there were differences between the Lemoore Police interview and the MDIC interview. He pointed out that a police report is a general summary of an officer’s investigation rather than a compilation of exact quotations. A police officer can phrase questions in way different than the questions of a forensic interviewer. A child’s responses could vary based on how a question is asked, memory loss, and rapport with the interviewer. He conceded a response could also vary based on coaching by a parent. Isenberg said the references to Stephanie’s four-year-old son were “not done one right after the other … I guess you would say intimidating the child or basically could be viewed as leading.” After asking K.G. some questions about a doctor checking her “mimi, ” the MDIC interviewer ask her, “Did you tell your dad something about what happened to your mimi?” K.G. responded by saying, “Uh huh, ” then offering an unintelligible explanation, and finally saying, “I told him dad, [Stephanie’s four-year-old son] keeps bugging me.” The MDIC interviewer and K.G. made no further references to Stephanie’s son during the interview.
Isenberg acknowledged the interviewer asked K.G., “Did you ever talk to your dad about [appellant]?” However, Isenberg considered that a direct rather than leading question because it could be “answered with a yes or no.” Isenberg considered K.G.’s disclosure of the alleged touching by appellant to be reliable because “that part of her disclosure remained the same.” On recross-examination by mother’s counsel, Isenberg acknowledged that K.G. could have confused two different events and two different times in talking to the interviewer about touching. However, Isenberg noted, “[T]he interesting part of that is the child’s change in verbiage and tone of voice where she was mimicking the mother.”
Jurisdictional Findings
At the conclusion of the February 9, 2010, hearing, the court preliminarily found that father did not coach K.G.’s testimony, that mother did not know or should have known that K.G. was at risk of being sexually abused, and that the evidence was sufficient to sustain the dependency petition as to the “D1 and J1 allegations, ” i.e., sexual abuse of K.G. by appellant and C.L. at substantial risk of similar abuse.
DISCUSSION
I. THE JUVENILE COURT DID NOT ERRONEOUSLY EXCLUDE EVIDENCE REGARDING THE BITE MARK
Appellant contends the juvenile court erroneously excluded evidence regarding the timing and nature of the bite mark and, therefore, the factual findings of the court were unreliable.
In making this assertion, appellant contends: “The petition was based solely on [K.G.’s] statements [citation.]; neither physical evidence nor third-party witness confirmed any sexual abuse ever occurred. [Citation.]” “A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d).” (§ 355, subd. (b).) Such a study fits within the class of legally admissible evidence upon which a court can rely in a jurisdictional hearing. “Only ‘[i]f any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study’ may the specific hearsay evidence ‘be [in]sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based.…’ (§ 355, subd. (c)(1).)” (In re E.B. (2010) 184 Cal.App.4th 568, 577.)
A. Evidence Regarding the Timing of the Mark
Appellant specifically argues:
“The only physical evidence before the court [was] the visible mark on [K.G.’s] bottom, which allegedly was the product of [appellant’s] biting her. Therefore, both the timing and nature of this injury were critical issues. First, did the mark develop when [K.G.] was in [appellant’s] custody, or only once she was back with [father]? Second, even if the mark developed when [K.G.] was with [appellant], was the mark truly a human bite mark, as the County asserted, a mosquito bite, as [K.G.] herself claimed on numerous occasions, or an ordinary bruise [citation], as [appellant] suggested? [¶] … [¶]
“The timing of the mark was determinative of its source. [K.G.] left [mother’s] custody at 9:00 a.m. on November 15 [citation], and went to her father’s family, who discovered the injury on the evening of November 17. The photographs were taken on November 18. [Citation.] Obviously, if the bite mark had been impressed within the 72 hours preceding the photographs, it would have exonerated [appellant], who had no access to [K.G.] during that time.”
Appellant points out the County’s addendum report of November 24, 2009, offered conflicting analyses. Public health nurse Pat Oliver, if called to testify, would state “based upon the pictures taken on 11/18/2009, at Hanford Community Hospital, the marks on the minor, [K.G.’s] buttocks do not resemble that of a bite mark. … Ms. Oliver would further state that the marks to appear to be fresh, and to be from less than 24 hours old, due to their coloring.” In a November 25, 2009, Lemoore Police Report, registered nurse Debbie Pollock told Officer Alberto Avelar that she received K.G. in the emergency room of the hospital on the evening of November 17, 2009. At that time, K.G. had a mark on her posterior, but Pollock was unsure if it was consistent with a bite mark. Pollock told Avelar the mark did not appear to be a fresh mark. Appellant submits that Oliver and Pollock offered conflicting assessments and contends the juvenile court suppressed the requisite inquiry to resolve this point.
The following exchange occurred during the testimony of social worker Chancey, a social worker with the emergency room unit of the agency Child Protective Services (CPS) Division:
“MS. BAIE [counsel for appellant]: Q. All right. What was Pat Oliver’s opinion as far as the bite mark?
“A. [By Social Worker Chancey]: A. She was – her statement to me was that the marks that she was assessing via the pictures did not appear to resemble that of a bite mark.
“Q. And who is Pat Oliver?
“A. Pat Oliver is a public health nurse that is employed by Kings County and someone that the social workers regularly use when we have kids or questions and we need some kind of medical input, I guess would be the correct word.
“Q. And her opinion was that the mark on [K.G.] did not resemble a bite mark?
“A. That was her statement to me.
“Q. Did Ms. Oliver also provide an opinion when she believed the mark was created?
“MR. WALTERS [deputy county counsel]: Your Honor, I’m going to object under [Kelly-Frye], bruising is not subject to any scientific method of aging. In so far as Ms. Oliver has tried to give an age of the bruise based on its appearance, there is no accepted scientific or medical methodology that allows aging to occur from the appearance of the skin.
“THE COURT: Ms. Baie?
“MS. BAIE: I’m asking for the opinion of a health professional.
“THE COURT: As to the aging of the bruising?
“MS. BAIE: As to when she believes the bruising had occurred.
“THE COURT: And what’s going to be the basis for her to give that expert opinion if any? [¶] I recognize she’s a public health nurse, but she raises her knowledge about the level of the general public, but it doesn’t give her expertise in the area of brain surgery or in aging of bruising.
“MS. BAIE: I will withdraw the question.”
To preserve an evidentiary ruling for appellate review, the proponent of the evidence must make an offer of proof regarding the anticipated testimony. That offer of proof must address the substance, purpose, and relevance of the excluded evidence and must set forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued. The trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by a proposed witness. (People v. Carlin (2007) 150 Cal.App.4th 322, 334.)
Under the Kelly-Frye rule (People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013), evidence based upon a new scientific method of proof is admissible only upon a showing that the procedure has been generally accepted as reliable in the scientific community in which it was developed. The test is usually applied to novel devices or processes relating to physical evidence, such as lie detectors, experimental blood typing systems, voiceprints, identification by human bite marks, and microscopic analysis of gunshot residue. (In re Amber B. (1987) 191 Cal.App.3d 682, 686.) California law distinguishes between expert medical opinion and scientific evidence. Scientific evidence is subject to the special admissibility rule of Kelly-Frye while expert medical testimony, such as a psychiatrist’s prediction of future dangerousness, is not. (People v. Ward (1999) 71 Cal.App.4th 368, 373.)
Evidence Code sections 720 and 801 are the California provisions governing admissibility of expert testimony. Section 720, subdivision (a), provides: “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.…” Subdivision (b) of that section provides: “A witness’ special knowledge … may be shown by any otherwise admissible evidence, including his own testimony.”
Section 801 permits an expert to state an opinion that is “(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge.…) perceived by or personally known to the witness …, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
In the instant case, nurse Oliver was never qualified as an expert witness on bruising, bite marks, or the aging of bruises and bite marks. In any event, her opinion regarding the mark on K.G.’s posterior was set forth in social worker Chancey’s November 24, 2009, addendum report. The juvenile court expressly read, received, and considered that report. Erroneous exclusion of evidence does not require reversal of a judgment unless the error resulted in a miscarriage of justice. The appealing party has the burden of demonstrating a reasonable probability that a more favorable result would have been reached absent the error. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) Since Oliver’s opinion was before the court through social worker Chancey’s addendum report, we cannot say appellant would have obtained a more favorable result had Oliver testified at the jurisdictional hearing about the timing of the bruise on K.G.’s posterior.
B. Evidence Regarding the Nature of the Mark
Appellant argues:
“The juvenile court erred in precluding Nurse Oliver from testifying that the mark did not depict a human bite mark, through reference to the photographs (Exhibit 3). The excluded photographs were part of the police report, which the County’s own Addendum Report provided. [Citation.] Therefore, Nurse Oliver should have been allowed to refer to the photographs, because (1) Social Worker Watts had authenticated the photographs; (2) social study reports are excepted from the scope of the hearsay rule; (3) police reports are admissible as official records (Evid. Code, § 1280); and (4) the County was estopped from challenging evidence itself had introduced. [¶]... [¶]
“[E]ven if Nurse Oliver could not refer to the photographs, the juvenile court erred in barring her testimony about her analysis of the mark to the social worker. Social Worker Watts testified that there was analysis of the mark at the hospital, although that analysis was inconclusive. [Citation.] (She actually did refer to the photographs. [Citation.]) There was no reason to preclude Nurse Oliver’s opinion on the same subject, with a different conclusion. The court barred Nurse Oliver from testifying, because ‘she can’t answer it directly as an expert opinion in here [so] her opinion should [not] be admitted for the purposes of describing the marks out of court.’ [Citation.] However, the court never ruled that Nurse Oliver lacked the qualifications to opine on the nature of the mark; the earlier exclusion of her testimony derived from the photographs’ alleged lack of authentication. [Citation.] The court should have allowed the nurse to offer her opinion, which contradicted Social Worker Watts’ summary of the evidence as to whether the mark was a bite from a human. [¶] The court erred in excluding evidence regarding the timing and nature of the mark.”
1. Evidentiary Character of the Photographs
Appellant initially characterizes the photographs of K.G.’s posterior as “excluded, ” thus suggesting the juvenile court formally sustained an objection to their admission into evidence. Social worker Watts testified the Lemoore Police Department took photographs of K.G. at the hospital. The photographs were attached to the addendum report filed November 25, 2009. The addendum report was admitted into evidence. Mother’s counsel had a separate set of photographs marked as Exhibit No. 3 during Watts’s testimony at the jurisdictional hearing. However, that exhibit was never moved or received into evidence. In any event, Evidence Code, section 1401 requires authentication of a writing before it may be received in evidence. The statutory term “writing” includes a photograph. The testimony of the photographer is not necessary to establish the admissibility of a photograph. Rather, all that is required is testimony of a witness that the photograph is a correct representation of the object it portrays. (People v. Richardson (1968) 258 Cal.App.2d 23, 30.) Here, nurse Oliver never personally saw or examined K.G. and could not say whether the photographs comprising Exhibit No. 3 constituted a correct representation of K.G.’s body.
2. Testimony Regarding the Marks on K.G.’s Body
Agency social worker Christy Watts testified she was the author of the jurisdiction/disposition report filed January 4, 2010. Watts acknowledged she was not the original investigating CPS worker in this case, had not interviewed K.G., and admitted that any opinion or facts she would be relating were related to her either through reports or through conversations with other parties. Watts based her opinion that K.G. was sexually molested upon K.G.’s statements. On cross-examination, Watts identified registered nurse Debbie Pollock and a doctor as health professionals who had seen K.G. Watts said no health professional had definitely confirmed the mark on K.G.’s posterior was a bite mark. When appellant’s trial counsel asked Watts about Pollock’s conclusions, the court sustained a hearsay objection to the question.
Agency social worker Chancey was the author of the addendum report dated November 24, 2009, and filed November 25, 2009. Chancey testified at the jurisdiction hearing and said nurse Oliver’s “statement to me was that the marks that she was assessing via the pictures did not appear to resemble that of a bite mark.” Upon further questioning about Oliver’s conclusions, Chancey said the mark on K.G. did not resemble a bite mark in Oliver’s opinion.
As noted above, nurse Oliver testified at a later point in the jurisdiction hearing. Oliver said she had been a foster care nurse with the Kings County Health Department for seven years and had witnessed three or four bite marks during that tenure. Oliver said she examined five photographs of K.G. taken on November 18, 2009 (Exhibit No. 3). Oliver said she was asked to provide an opinion as to whether a mark on K.G. was a bite mark. Counsel for father interposed a foundational objection and counsel for the agency interposed a relevance objection, claiming the photographs (Exhibit No. 3) had not been authenticated. The court sustained the objections but Oliver testified that she had provided an opinion about the mark to the agency.
When asked her opinion, the court sustained objections on the grounds of relevance and lack of foundation. Oliver subsequently testified that social worker Chancey showed her the photographs “to see what I thought they were.” Oliver understood Chancey was the social worker in charge of K.G.’s case at the time and Chancey was specifically asking her about photographs that depicted marks on the child. Chancey asked Oliver what she thought the marks on the child’s posterior depicted. Mother’s counsel then asked, “What did you tell her what you felt they depicted?” The court sustained hearsay, relevance, and foundational objections to the question.
Appellant contends this ruling was inconsistent with other rulings made by the court. The court allowed Watts to testify: “When the child was observed at the hospital there wasn’t a definite [conclusion] either way as to whether it was a bite mark or not from a human, that is.” Watts also testified that father said the mark on K.G.’s posterior was “not a mosquito bite.” Father testified during the jurisdiction hearing. He said he saw the mark on K.G.’s posterior and it measured “two and a half, three inches in diameter, approximately.” Father said he asked K.G. how she received the mark and she said at least five times that it was a mosquito bite. Father testified he did not believe the mark was caused by a mosquito bite saying, “I’m not an expert on mosquito bites. When I receive mosquito bites they don’t usually leave bruises on me.” Later in his testimony, father reiterated he was not an expert in bite marks but believed that was the cause of K.G.’s bruise “[b]ecause my daughter stated that it was a bite mark and I believe my daughter.” Father also said he formed the opinion that the bruise was a bite mark before K.G. acknowledged that it was a bite mark.
Appellant submits “[t]here was no reason to preclude Nurse Oliver’s opinion on the same subject, with a different conclusion. …The court should have allowed the nurse to offer her opinion, which contradicted Social Worker Watts’ summary of the evidence, as to whether the mark was a bite from a human.” Appellant fails to explain how or in what respect Oliver’s opinion contradicted social worker Watts’s recitation of material evidence. Watts did not interview K.G., never questioned her about the case, never had a conversation with K.G., was not the original investigating CPS worker in K.G.’s case, and had no special training in bite marks. Watts admitted there was no definite corroboration from a health care professional to show the mark on K.G.’s posterior was a human bite mark. According to the addendum report filed November 25, 2009, Oliver was of the opinion “the marks on the minor, [K.G.’s] buttocks do not resemble that of a bite mark, ” an opinion consistent with Watts’s testimony.
Assuming the existence of a contradiction, we note an evidentiary ruling, even if erroneous, is not reversible absent a miscarriage of justice. A miscarriage of justice should be declared only when the court is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. (Easterby v. Clark (2009) 171 Cal.App.4th 772, 783.)
Once again, nurse Oliver’s opinion was before the court through social worker Chancey’s addendum report. We cannot say appellant would have obtained a more favorable result had Oliver testified at the jurisdictional hearing about the nature of the bruise on K.G.’s posterior. This is particularly true where Oliver did not examine K.G. herself, was not present when the photographs were taken, and appellant’s counsel advised the court at one point during Oliver’s testimony, “I’m just asking a witness to restate what she has told the Agency.”
The Third District Court of Appeal has observed: “Our system of appellate review is grounded in common sense and the real world. Trial court proceedings are imperfect, as are appellate proceedings. This is not to say close is good enough. We merely observe we always deal with all the errors and imperfections, conscientiously and cautiously, to determine whether a miscarriage of justice has occurred. (Cal. Const., art. VI, § 13.) If it has, we reverse. If it has not, we affirm.” (People v. Coley (1997) 52 Cal.App.4th 964, 969.) The juvenile court’s evidentiary rulings as to nurse Oliver’s opinion about the timing and nature of K.G.’s bruise did not amount to a miscarriage of justice where Oliver’s opinion was before the court through the agency addendum report of social worker Chancey.
II. THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION IN NOT MOVING K.G. TO A NEUTRAL ENVIRONMENT
Appellant contends the juvenile court abused its discretion in not moving K.G. to a neutral environment at the time of the November 23, 2009 detention hearing.
The following exchange occurred at the detention hearing:
“MR. FJELLBO [attorney for mother]: … And as far as the placement of the child, [K.G.], my client would request that child be placed with the maternal grandparents since the other possible parties who may have abused the child would be residing in the household where the child is now. We feel it would be best to have the child on neutral ground.
“THE COURT: As to, Ms. Kaylor, your client?
“MS. KAYLOR [attorney for father]: Yes, your Honor. He’s not alleged to be an offending parent, but we will enter a denial anyway. We will submit on the report. [¶] As far as Mr. Fjellbo’s request about placement, I’m not understanding his reasoning because my client is not alleged to have done anything wrong here. I would ask that placement be kept with him in his home.”
The court ultimately removed K.G. from the home of mother and ordered “that pending the next hearing, the child … is released to the father, Robert [G.], under the following conditions and limitation: There is to be no contact between [K.G.] and Colton [L.] And Mr. [G.] will allow the social worker access to his home and contact with the child [K.G.]” The court further ordered: “There is to be no discussion of the petition, its contents or underlying facts with the children by any persons other than professionals providing services to the children. And that’s an order for everybody, including those in the audience.”
Despite this admonishment, appellant contends the juvenile court abused its discretion by not moving K.G. to a neutral environment because placement of the minor with her father “substantially compromised the reliability of the subsequent interview.” Appellant elaborated: “The real danger was an unintentional shaping of [K.G.’s] responses. Even if [father] and Stephanie obeyed the court’s order not to address the petition with [K.G.], she already knew, through [father’s] initial inquiry, that he did not believe the mark came from a mosquito or [Stephanie’s four-year-old son]. This awareness, compounded by the risk that [K.G.] would inadvertently overhear Stepfather talking about the alleged abuse, produced an unacceptably high risk that [K.G.] would tailor her answers to suit [father’s] preferences.”
Appellant cites to Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.) as authority for placement of K.G. in a “neutral environment.” In Blanca P., Division Three of the Fourth Appellate District confronted the following situation:
“At a critical hearing in this juvenile dependency case, the juvenile court judge was under a serious misimpression about what was at stake. The hearing concerned a subsequent petition which alleged that the father, Rogelio, had molested his three-year-old daughter Daisy. The judge, however, mistakenly believed that the matter had already been decided against Rogelio. At the outset he thought the hearing was a simple six-month review; he was not disabused of his misimpression until after the evidentiary portion of the hearing had been completed. The record also indicates that the judge had not read the subsequent petition alleging the molestation. Nor was any oral testimony concerning the alleged molestation presented at the hearing.” (Blanca P., supra, 45 Cal.App.4th at p. 1741, italics in original.)
Appellant cites Blanca P. and contends the court in this case “was obligated to optimize the reliability of the fact-finding process.” The Blanca P. court did not specifically address the question of placement of a minor in a neutral environment. The Blanca P. court did note: “The hearing on a contested petition alleging child sexual abuse is … extraordinarily important. It is not the sort of thing to be rushed, or taken routinely. Allegations of child molestation are serious; they merit more than a rubber stamp. With the exception of death penalty cases, it is hard to imagine an area of the law where there is a greater need for reliable findings by the trier of fact. The consequences of being wrong–on either side–are too great.” (Blanca P., supra, 145 Cal.App.4th at p. 1754, italics in original.)
While we agree with the sentiments of the Blanca P. court, the decision in Blanca P. does not serve as a substantive legal basis for challenging the juvenile court’s discretionary decision not to place K.G. in the neutral environment prior to her MDIC interview. We note that at the jurisdictional hearing, appellant testified mother “was neglected by her parents” and “has zero relationship with them because of the [unspecified] incident that happened with her as a child.” Given appellant’s characterization of mother’s parents, we cannot say the juvenile court abused its discretion by declining to place K.G. with her maternal grandparents.
III. THE JUVENILE COURT DID NOT ERRONEOUSLY EXCLUDE TESTIMONY FROM THE SOCIAL WORKERS
Appellant contends the juvenile court committed reversible evidentiary error by excluding portions of testimony by social workers Christy Watts and Monika Chancey favorable to appellant while admitting analogous evidence favorable to respondent agency.
Evidence Code section 354 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:
“(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;
“(b) The rulings of the court made compliance with subdivision (a) futile; or
“(c) The evidence was sought by questions asked during cross-examination or recross-examination.”
The rule of Evidence Code section 354 is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (People v. Anderson (2001) 25 Cal.4th 543, 580-581.) Under California law, it is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise. An offer of proof should give the trial court an opportunity to change or clarify its ruling and, in the event of appeal, would provide the reviewing court with the means of determining error and assessing prejudice. To accomplish these purposes, an offer of proof must be specific and must set forth the actual evidence to be produced rather than merely the facts or issues to be addressed and argued. (People v. Schmies (1996) 44 Cal.App.4th 38, 51, 53.)
No judgment shall be reversed on account of the erroneous exclusion of evidence unless it appears, upon examining the entire cause including the evidence, a miscarriage of justice has occurred. A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 751.) Expressed another way, where a trial court’s ruling does not constitute a refusal to allow the defendant to present a defense, but merely rejected certain evidence concerning the defense, the ruling does not constitute a violation of due process. In that situation, the appropriate standard of review is whether it is reasonably probable the admission of the evidence would have resulted in a verdict more favorable to the defendant. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
Appellant specifically contends the juvenile court erred in excluding testimony from social workers Christy Watts and Monika Chancey, specifically (1) evidence concerning the truth telling skills of four-year-olds generally and K.G. specifically and (2) testimony describing the circumstances of K.G.’s MDIC interview, including K.G.’s alleged impatience and the interviewer’s alleged confirmatory bias.
As to the first point, the California Supreme Court has observed: “We also note that contemporary psychological research affirms a young child’s capacity to tell the truth. (See, e.g., Melton et al., Psychological Evaluations for the Courts (2d ed. 1997) § 7.07, p. 173 [reporting little relationship between age and honesty, although conceptualization of duty to tell the truth varies with age].) There is no logical reason for denying admission of out-of-court statements that circumstances indicate originate from a child’s ‘rooted ingenuousness’ merely because he or she appears unable to understand, in the abstract, the duty to tell the truth.” (In re Cindy L. (1997) 17 Cal.4th 15, 34-35 [In a dependency proceeding alleging sexual abuse of a minor (Welf. & Inst. Code, § 300, subd. (d)), Supreme Court held: “[A] finding that a child is not competent to differentiate between truth and falsehood or to understand the duty to tell the truth at the time he or she is prepared to testify should not be an absolute bar to the admission of the child’s hearsay testimony, but only one circumstance to be considered in determining whether the child’s statement is reliable.” (In re Cindy L., supra, 17 Cal.4th at. 18)].)
In any event, social workers Watts and Chancey were not qualified as expert witnesses on the truthfulness of children and a lay witness’s opinion about the veracity of another’s statements is inadmissible and irrelevant to a determination of the credibility of those statements. (People v. Melton (1988) 44 Cal.3d 713, 744.) Moreover, the court was well aware of the truth telling skills of young children, noting in its jurisdictional findings that K.G. sometimes made contradictory statements. Exclusion of additional testimony to the same or similar effect did not amount to a miscarriage of justice.
As to the circumstances surrounding the MDIC interview, the court had CD and DVD recordings of the actual interview, as well as a verbatim transcript of the interview. In addition, the court was aware through other testimony that K.G. had waited approximately one-half hour before participating in the question-and-answer process of the MDIC interview. Without objection by any party, the juvenile court admitted the written, audio, and video versions of the actual MDIC interview into evidence. We do not see how the testimony of Watts and Chancey about the circumstances of the interview would have added anything meaningful to the contested jurisdiction/disposition hearing.
The juvenile court’s exclusion of certain proffered testimony by social workers Watts and Chancey did not amount to a miscarriage of justice and reversal is not required.
IV. THE CUMULATIVE EFFECT OF THE ALLEGED ERRORS DOES NOT COMPEL REVERSAL
While declining to challenge the sufficiency of the evidence to support the dispositional order, appellant contends the combination of evidentiary errors deprived him of a fair determination of the merits of the case.
Appellant specifically contends K.G.’s inculpatory responses had diminished reliability because (1) they were the product of improper inquiry, i.e., the improper leading questions of her father and the interviewer’s improper use of prior information at the MDIC interview; (2) they were the product of pervasive confirmatory bias; (3) they were the product of her impatience and improper coercive incentives; (4) they were the product of direct rather than open-ended questions; and (5) K.G.’s detailed descriptions did not compensate for these weaknesses in questioning.
Appellant cites In re Catherine H. (2002) 102 Cal.App.4th 1284, 1293, for the apparent proposition that the proceedings leading to a dispositional order in a juvenile dependency case may be reviewed for cumulative error. The court in Catherine H. did not specifically address the concept of cumulative error. Rather, the court simply held “that a noncustodial parent seeking custody after his or her child has been removed from the custody of a predependency guardian has standing to request a contested dispositional hearing and, when the hearing is held, to appear, to be heard, and to present evidence.” (Id., at p. 1292.)
California courts have typically addressed the concept of cumulative error in criminal cases. For example, the Supreme Court has noted that in a close criminal case, the cumulative effect of multiple errors may constitute a miscarriage of justice. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236; People v. Holt (1984) 37 Cal.3d 436, 458-459.) Theoretically, the “cumulative errors doctrine” is always applicable in criminal cases. The litmus test is whether defendant received due process and a fair trial. Generally speaking, an appellate court (1) reviews each allegation; (2) assesses the cumulative effect of any errors; and (3) determines whether it is reasonably probable the jury would have reached a result more favorable to defendant in their absence. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.)
Assuming that appellant is contending that cumulative evidentiary error occurred, we note an asserted erroneous admission or exclusion of evidence requires us to find “that the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code, §§ 353, 354.) A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. This standard of review applies in civil and criminal cases. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)
We have summarized the evidence of this case in the statement of facts above and will not repeat it here. Through the testimony of father at the jurisdiction/disposition hearing and the admission into evidence of the MDIC interview in written, audio, and video formats, the juvenile court could assess the use, if any, of “improper leading questions” in ascertaining K.G.’s version of events. From that same evidence, the court could determine whether K.G.’s statements at the MDIC interview were the asserted “product of pervasive confirmatory bias” and “the product of her impatience and improper coercive incentives.” In addition, the admitted evidence of the MDIC interview gave the court a clear basis for determining whether K.G.’s inculpatory responses “were the product of direct rather than open-ended questions.” Appellant’s final claim that “[K.G.’s] detailed descriptions did not compensate for these weaknesses” is speculative, particularly where appellant concedes K.G.’s statements were “legally sufficient” and does not offer case law to the contrary.
Appellant’s assertion of cumulative evidentiary error is not supported by the record on appeal and reversal is not required.
Conclusion
The Third District Court of Appeal has observed: “Our system of appellate review is grounded in common sense and the real world. Trial court proceedings are imperfect, as are appellate proceedings. This is not to say close is good enough. We merely observe we always deal with all the errors and imperfections, conscientiously and cautiously, to determine whether a miscarriage of justice has occurred. (Cal. Const., art. VI, § 13.) If it has, we reverse. If it has not, we affirm.” (People v. Coley (1997) 52 Cal.App.4th 964, 969.)
Dependency proceedings are civil in nature, not criminal or punitive. The purpose of dependency law is to protect children, not to prosecute their parents. (In re Mary S. (1986) 186 Cal.App.3d 414, 418-419.) The fundamental premise of dependency law is to serve the best interests of the dependent child. (In re Samuel G. (2009) 174 Cal.App.4th 502, 510.) The basic question under Welfare and Institutions Code section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Welfare and Institutions Code section 300 at the jurisdiction hearing. (Welf. & Inst. Code, § 355, subd. (a).) On appeal, the substantial evidence test is the appropriate standard of review for both the jurisdictional and dispositional findings. We must uphold the court’s jurisdictional findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court’s order, and affirm the order even if there is other evidence supporting a contrary finding. The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re A.M. (2010) 187 Cal.App.4th 1380, 1387-1388.)
In this case, appellant concedes K.G.’s modest statements were “legally sufficient.” However, he maintains those statements suffered from diminished reliability due to the interviewing techniques used to elicit her responses, as well as evidentiary rulings that excluded other testimony regarding the nature and timing of the mark on K.G.’s body and the circumstances surrounding the MDIC interview. Appellant’s challenges essentially go to K.G.’s credibility, conflicts in the record on appeal, and the weighing of the evidence, all responsibilities of the juvenile court. While sexual abuse, as found by the juvenile court, was the precipitating factor in this case, the totality of the circumstances in the record on appeal supports the findings and orders of the juvenile court. As this court noted in a juvenile dependency case more than three decades ago: “If there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the trial court’s findings.” (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.) Such evidence exists in the present case and the findings and orders must be affirmed.
DISPOSITION
The jurisdictional findings and dispositional orders are affirmed.
WE CONCUR: Gomes, Acting P.J., Detjen, J.