Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. BK 00043, Debra Losnick, Commissioner.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Appellant Jose D. appeals from jurisdictional, dispositional, and related orders made pursuant to Welfare and Institutions Code section 300 regarding his daughter Martina D. (born 1996). In May 2007, the dependency court asserted jurisdiction over Martina and required Jose to participate in reunification services based in part upon findings in an earlier 1990 dependency proceeding that he had sexually molested Martina’s half-sisters (not Jose’s children). Jose contends the dependency court violated his due process rights by taking judicial notice that the 1990 petition allegations were sustained against him even though he was not a party to the 1990 proceeding, by admitting the documents from the 1990 case file, and by denying him the opportunity to contest the truth of the 1990 findings in the 2007 proceeding. He further maintains that absent the evidence from the 1990 proceeding, no substantial evidence supported the allegations against him. We disagree and affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
On May 2, 1990, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition alleging that Maria C., who is Martina’s mother and is not a party to this appeal, had failed to protect her daughters from sexual molestation by her male companion, Jose D. A DCFS report and sheriff’s investigation report noted that the two eldest of the three daughters, one fifteen years old, the other thirteen, stated that Jose had fondled their vaginal areas as they lay in bed. DCFS removed the three daughters from the home because Maria refused to ask Jose to leave the home. The agency recommended sexual abuse counseling for Jose and co-dependency counseling for Maria. Maria said she would cooperate with DCFS, but she knew that Jose would not
Maria received notice of an arraignment hearing on May 10, 1990, and both she and Jose were present that day when the court continued the matter to July 2, 1990, for a jurisdictional hearing. Maria also was present at the detention hearing on June 7, 1990. Neither Maria nor Jose were present at the July 2 hearing, which proceeded on a default basis as to Maria and at which the court sustained the petition as amended. Both Maria and Jose were present at the disposition hearing on July 25, 1990, at which the court ordered both of them to participate in a reunification case plan and forbade Jose from having contact with Maria’s three daughters pending further court order. Because Jose remained in the family home and apparently did not comply with his DCFS case plan, Maria did not reunify with any of her three eldest daughters. One was adopted; the other two were released from foster care and dependency jurisdiction when they turned 18 during the 1990s.
Martina was born in 1996, after Maria and Jose had two sons together. Maria and Jose later married. On November 1, 2006, DCFS caseworkers detained Martina after receiving an emergency response referral alleging that Maria had abused Martina physically and emotionally. The night before, with one of her adult brothers, Martina had gone trick-or-treating dressed as a witch. Maria, a devout fundamentalist Christian, saw Halloween as a devil worshipper’s day and forbade trick-or-treating. Upon Martina’s return home, Maria was angry, and Martina hid in her brother’s room and spent the night there, fearing Maria would hurt her. The next morning, Maria pinched Martina on her right arm and leg, breaking the skin and leaving bruises, and threatened to hit her with a belt. Maria took Martina to school, where she hit her on the arm with her elbow in front of school office staff, who contacted DCFS. A DCFS caseworker interviewed Martina, who said she was afraid to return home. Other caseworkers interviewed Maria and her sons at their home and found them hostile, aggressive, uncooperative, and disdainful of authority. Maria denied ever abusing Martina and accused the caseworkers of putting words in Martina’s mouth, although Maria admitted having used a sandal to discipline Martina in the past. The caseworkers determined that it was necessary to detain Martina.
The caseworkers asked the family about the identity and whereabouts of Martina’s father. Maria identified Jose as the father but said that he had left the family years earlier for another woman somewhere in Mexico, he had never provided for the family, and she did not know his address or phone number.
On November 6, 2006, based upon the Halloween and sandal incidents, DCFS filed a two-count petition under section 300, subdivision (a) (nonaccidental serious physical harm or substantial risk thereof from parent’s direct conduct) and subdivision (b) (serious physical harm or substantial risk thereof from parent’s failure to adequately supervise or protect). At the detention hearing on November 6, 2006, the court ordered Martina released to Maria over DCFS’ objection, ordered that Maria receive family maintenance services, and ordered no visitation by Jose until he contacted DCFS, then monitored visitation pending a further court order.
A DCFS study for the Jurisdiction/Disposition hearing on December 20, 2006, reported that Maria stated that Jose had sexually molested her older daughters — “According to [Maria, Jose] sexually abused her three [sic] older children and she failed to reunify with the children.” At Maria’s request, the court continued the matter to February 14, 2007, for a contested hearing.
In a supplemental report, DCFS announced that it intended to file a first amended petition, noting, “This family had prior sustained sexual abuse allegations [involving Martina’s older half-sisters and Jose]. Mother failed to protect and mother’s parental rights were terminated as to [one half-sister]. Mother failed to reunify with [the other two]. Mother was aware of the Juvenile Court prior orders not to allow father, [Jose,] to reside in the home. Further, mother allowed father to have full access to the child Martina . . . knowing he sexually abused her older two children. Mother first reported it was recently that the father had the child Martina sitting on father’s lap and she asked the child to stand up. Mother noticed father had an erected penis when the child got up from his lap. Mother now is reporting the incident happen[ed] three years ago.” DCFS located Jose at an address in Los Angeles, but one of Martina’s adult brothers prevented a caseworker from asking Jose questions. DCFS recommended parenting classes and counseling regarding anger management and sexual abuse for both Maria and Jose. The court sent notice of the February 14, 2007 hearing to Jose’s address.
At the February 14, 2007 hearing, based upon the discovery of the 1990 dependency proceeding, the court ordered the current proceeding consolidated with the earlier proceeding and ordered the entire proceeding transferred to its court of origin. On the same day, in the presence of both Maria and Jose, the court to which the matter had been transferred appointed counsel for Jose and new counsel for Maria. The court ordered Jose not to be in Maria’s home for any reason, ordered monitored visits for Jose, and continued the hearing.
On March 12, 2007, DCFS filed a first amended petition, which added several counts pursuant to section 300, subdivisions (b), (d) (sexual abuse or substantial risk thereof), and (j) (abuse of a sibling), based upon the 1990 dependency proceeding involving Martina’s older half-siblings, the “erect penis” incident involving Martina, and Maria’s failure to exclude Jose from the family home. In a report for the continued Jurisdiction/Disposition hearing on March 12, 2007, DCFS noted that Martina had stated, “No, I don’t sit on my father’s laps anymore. I would sit on his laps when I was little. I’m big now I can’t sit on his laps. [¶] . . . My father never touched me.” Maria said that she would not allow Jose to come to the family home anymore and that he would be leaving for Mexico soon. Regarding the erect penis incident, she asserted, “Yes, Martina would sit on his lap, but that was when she was little about eight years ago. That was many years ago. She knows not to sit on his lap.” The report noted Maria had made contradictory statements about the date of the incident, and that she had allowed Jose to stay in the family home with access to Martina. Both Maria and Jose attended the March 2007 hearing, and both denied the petition’s allegations. The court continued the hearing to May 9, 2007.
At the May 9 hearing, the court received into evidence various DCFS reports, some with attachments relating to the 1990 proceeding, including the “[s]ustained petition on prior case (BK 00043)” and apparently also including DCFS reports and other court documents from that proceeding. Jose’s counsel objected on hearsay grounds to Maria’s statement, contained in DCFS’ December 20, 2006 report, that Jose had sexually molested Martina’s half-siblings. The court overruled the objection. Jose’s counsel objected on Evidence Code section 352 grounds to any information relating to the 1990 petition in DCFS’ report dated February 14, 2007, contending such information was too stale, remote, and lacking in probative value. In support of that objection, counsel stated that he questioned the reliability of the evidence in the prior case and also argued that Jose was not a party to that case, was not provided an attorney, was not given notice of the proceedings, and did not appear for trial. The court noted the objection, found section 352 not applicable, and took judicial notice of the 1990 sustained petition. Immediately after the court made the above ruling, counsel objected to information relating to the “erect penis” incident: “again just the same objections under Evidence code 352.” The court overruled the objection. Over counsel’s renewed objections on the same grounds, the court admitted the March 12, 2007 report with attachments and the May 9, 2007 report.
It is unclear from the record precisely which documents from the 1990 proceeding were attached to the various DCFS reports concerning Martina in 2006 and 2007, though various such attachments are mentioned in the hearing transcript.
The hearing transcript reads as follows:
Maria testified on her own behalf through a Spanish language interpreter. The gist of her testimony was that although she was still married to Jose, she had filed for divorce; the longest time Jose had lived at the house during the last 2 or 3 years was for 6 months; and that “[h]e takes off for Mexico, comes back, spends a little time with us, then goes back to Mexico and then comes back and stays with us.” Although it is not clear when this practice began, Jose was restricted to sleeping on the couch, and Maria did not allow Martina to be alone with Jose. Maria was not cross-examined by any counsel, no other witnesses were called, and no other evidence was offered. All parties rested.
In her closing argument, Jose’s counsel asked the court to dismiss the petition in its entirety, maintaining that “the only evidence of the alleged sexual abuse comes from [Maria], whose credibility and state of mind is in question.” Further, counsel argued that “what we also have here is a stale 16-year-old petition without really any corroborating evidence pointing to the current risk in this case. In the prior case, the father was not even present. He had no opportunity to contest the allegations. He was not even appointed an attorney. He had no notice, no nothing, your Honor. There was a serious problem with the reliability of the evidence that’s presented in the prior case. And I should also note that in the prior case the evidence came from the mother, who has a credibility problem, your Honor.” Counsel for DCFS asked the court “to take judicial notice of a companion case, which is BK00043 [the 1990 petition proceeding]”; the court said “Thank you” and noted, “It’s the same file.”
After oral arguments, the court sustained, with modifications, the allegations in counts b-1 (only concerning Maria), b-2 and d-1 of the modified petition and dismissed all other counts. In summary, as pertinent to Jose, the court found true that in 1990 a petition had been sustained that alleged that Jose had sexually abused Martina’s older half-siblings (counts b-2 and d-1), Jose had sexually abused those siblings (count d-1), and Jose had an “erected penis” when Martina sat on his lap (count b-2). The court continued Martina’s placement in her mother’s home subject to DCFS supervision and ordered family maintenance services for Maria and family reunification services and monitored visits for Jose. The court excluded Jose from Maria’s home. Jose timely appealed.
As modified by the court, count b-2 reads, “[Martina’s two eldest half-sisters] are prior dependents of the Juvenile Court. On 07/02/90, (BK00043, Dept. 403) a petition was sustained in that [Jose] sexually abused the [two half-sisters], including but not limited to fondling and attempted digital penetration. Further, [Maria] was unable to take action to protect the children. Further, [Maria’s] parental rights over [the third half-sister] were terminated. Further, [Maria] failed to reunify with [Martina’s two eldest half-sisters]. [¶] Further, [Maria] reported that [Martina] was sitting on [Jose’s] lap and [Jose] had an erected penis. Such conduct endangers [Martina’s] physical and emotional health and safety, creates a detrimental home environment and places [Martina] at risk of harm, damage and sexual abuse.”
As modified by the court, count d-1 reads, “On or about 1989 [Jose] sexually abused [Martina’s two eldest half-sisters] when they were children. The Court sustained a sexual abuse [c]ount on 07/02/90 (BK00043, Dept. 403). Further, that the Court sustained a count that [Maria] was unable to take action to protect the children from such sexual abuse. Such conduct by [Maria and Jose] places [Martina] at risk of physical harm, damage, danger and substantial risk of sexual abuse and failure to protect.”
DISCUSSION
I. Due Process
Jose contends that because he did not receive notice, had no right to be represented, and had no opportunity to challenge the evidence in the 1990 proceeding, the court violated his due process rights under the United States Constitution by admitting into evidence and judicially noticing, in the instant proceeding, the 1990 sustained petition, the reports contained in the file of that proceeding, and any other material in that file. We need not decide the merits of this claim. Because Jose did not raise a due process argument in the trial court, it is waived. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117 [“It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal.”].) He never objected to counsel’s request that the court take judicial notice of the file, and the objections that he did make were not on due process grounds; his only objections to the introduction of evidence from the 1990 proceeding were based on Evidence Code section 352. To the extent Jose maintains that his references to lack of notice and counsel within his Evidence Code section 352 objections constitute a due process objection, his objection was inadequate because it failed to fairly or clearly inform the trial court that he was requesting the court to undertake a due process analysis. (See People v. Partida (2005) 37 Cal.4th 428, 435, 437.)
Because he does not raise any argument under Evidence Code section 352 on appeal, he has waived or abandoned that ground. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [“Issues not raised in an appellant’s brief are deemed waived or abandoned.”].) Similarly, he does not raise, and thus has waived or abandoned, his hearsay objection to Maria’s statement in the December 20, 2006 report that Jose molested her eldest daughters.
Jose requests that even if we determine that he failed to properly object to the admission of the 1990 file on due process grounds, we nonetheless consider the due process grounds he raises on appeal because of the “magnitude of the constitutional issues.” We decline to do so because, among other reasons, as we discuss below, evidence outside the 1990 file supports the trial court’s decision.
As best we can understand Jose’s argument, he further contends a separate due process violation resulted because he had no opportunity during the instant proceeding to contest the validity of the 1990 finding that he molested Martina’s half-siblings. In particular, he claims that he was not permitted to object to the 1990 file or its contents, he had no right or access to the reports in the 1990 file, he had no opportunity to contest the evidence in the file or to argue the sufficiency of the evidence, and he had no opportunity to cross-examine the authors of the reports contained in the file. He does not cite anything in the record to support these assertions, however, and we find nothing in the record to support them. Indeed, the record shows that he did object to admission of the file and the documents contained in that file. With regard to his claim that he had no right to access to reports, pursuant to section 827, subdivision (a)(D) and (E), Jose and his attorney were entitled to inspect the case file. Further, apparently some or all of the 1990 reports were attached to the admitted exhibits to which he objected. In any event, the record does not show, and Jose does not here claim, that he ever requested or was refused permission from the trial court to inspect the file. The record also shows he argued the sufficiency of the evidence from the 1990 proceeding: “[T]here was a serious problem with the reliability of the evidence that’s presented in the prior case. And I should also note that in the prior case the evidence came from the mother . . . .” With regard to cross-examining the authors of the reports, he did not call or request to call the authors, as he was authorized to do with a timely request under section 355, subdivision (b)(2). Nor did he call any other witnesses, including Maria’s three older daughters or himself.
Section 827, subdivision (a), provides in part that “a case file may be inspected only by the following: [¶] . . . [¶] (D) The minor’s parents or guardian. [¶] (E) The attorneys for the parties[.]” Section 827, subdivision (e), explains that “[f]or purposes of this section, a ‘juvenile case file’ means a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer.” After the 1990 and 2006-2007 proceedings were consolidated, the 1990 documents were part of the same case file as documents from the later proceeding involving Martina, and Jose, as Martina’s parent, and his attorney were entitled to inspect the case file pursuant to section 827, subdivision (a) (D) and (E).
Even if we were to assume that Jose made a proper due process objection to the matters contained in the 1990 file and that the trial court should have sustained those objections, we would find any such error harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. (See In re Angela C. (2002) 99 Cal.App.4th 389, 394.) Leaving aside the evidence contained in the 1990 file, other evidence shows that Jose presented a danger to his daughter. In the December 20, 2006 report, Maria told DCFS that Jose had sexually molested her older daughters. In the February 14, 2007 report, Maria stated that she had seen that Jose had an erect penis when Martina got up from his lap. Based upon Jose’s record, Maria testified that she would not allow Martina to be left alone with him. He presented no evidence to controvert this testimony. Considering this post-1990 evidence and the total lack of any countervailing evidence, any error in admitting reports or documents from the 1990 file was harmless beyond a reasonable doubt.
Reports from child welfare agencies submitted during dependency proceedings are competent evidence subject to the social study hearsay exception. (See §§ 281, 355, subd. (b); In re Cindy L. (1997) 17 Cal.4th 15, 21-36.)
II. Sufficiency of the Evidence
Jose, assuming the 1990 evidence and findings must be excluded on due process grounds, contends there is insufficient evidence to support jurisdictional findings as to him. He argues that the evidence relating to the erect penis incident is insufficient to support the findings and petition. We need not decide whether this evidence alone would be enough to sustain the petition because, as discussed in section I, evidence of his conduct with Maria’s older daughters, combined with the evidence of his conduct with Martina, provides strong evidence to support the trial court’s finding of danger.
Jose points to various contradictions and inconsistencies in Maria’s statements and testimony, Maria’s unfortunate experience with her own father, and Martina’s statement to DCFS that Jose had never acted inappropriately, as requiring us to find that Maria was not worthy of belief. This we will not do. The inferences he wishes us to draw are not the only or even the most reasonable inferences. Maria’s statements about the incident when Martina sat on Jose’s lap, although uncertain as to timing, were all consistent with a reasonable inference that the incident actually occurred. Martina’s statement to DCFS—“My father never touched me”—also is consistent with the lap incident having occurred, although Martina, a child, may not have been aware of it or did not consider it to be “touching.” In conclusion, the court was not unreasonable in drawing inferences favorable to the veracity of Maria’s core statements—that Jose molested her older daughters and that he had an erection when Martina sat in his lap.
Jose also maintains there is no evidence that he poses a risk of current harm to Martina because the evidence shows that he is never at Maria’s home. Maria’s statements on that matter, however, which indicated that Jose still stays with Maria sporadically, support a reasonable inference that Jose might continue to have access to Maria’s home and to Martina, thus posing a risk.
DISPOSITION
The orders are affirmed.
We concur: MALLANO, Acting P. J. JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
“[Counsel for Jose]: “ I would object to any information pertaining to the petition that was sustained in July of 1990 of the prior case under Evidence Code 352, as it is too remote and it has little probative value. It contains stale evidence.
“The father in the current case, [Jose], was the stepfather [sic] to the prior case. He was listed as a ‘male companion’ on the petition. Therefore, he was not provided any attorney, he was given no notice of the proceeding in the prior case, he didn’t appear for trial, he was not noticed for a trial, your Honor. And I question the reliability of the evidence in the prior case.
“The Court: [The] court notes your objection. 352 I am not finding to be applicable. The court is entitled to take judicial notice of prior sustained petitions within this file.
“[Counsel]: Also I’m sorry. I just have another objection as well. In regards to the current petition, again just the same objections under Evidence Code 352. Information pertaining to the alleged sexual abuse that allegedly occurred over three years ago [apparently referring to the “erect penis” incident]. [The] petition doesn’t establish that the minor is currently at risk of harm. Too remote in time, has no probative value.”