Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, S. Patricia Spear, Judge, Los Angeles County Super. Ct. No. CK64947.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Owen L. Gallagher, Principal Deputy County Counsel, for Respondent Los Angeles County Department of Children and Family Services.
PERLUSS, P. J.
Leroy P., the father of five-year-old Victoria P., appeals from the juvenile court’s orders made at the jurisdiction and disposition hearings declaring Victoria a dependent child of the court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d), and removing her from his custody pursuant to section 361, contending the court erred in relying on Victoria’s out-of-court statements Leroy had sexually abused her. We conditionally affirm the juvenile court’s orders, but remand for compliance with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)).
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Leroy and T.B., the parents of Victoria, were married in 2002 (the year Victoria was born) and separated in 2004. Victoria lived with Leroy for much of the next two years. In February 2006 the couple divorced. Although Victoria lived for extended periods with each parent, Leroy was awarded custody of Victoria; and T.B. was allowed visitation two weekends each month.
In spite of the divorce Leroy allowed T. B. and her older daughter S.B. to move into his apartment when they became homeless in August 2006. T.B. left the children with Leroy and her brother on September 3, 2006 while she visited with her new boyfriend. Upon her return Leroy became angry when T.B. refused to have sex with him and told her he wanted her to move out of his apartment.
In addition to S.B., who lived with T.B. and was 13 years old at the time she was removed from T.B.’s custody, T.B. has four sons who live with their father and another daughter who lives with her father.
Our recitation of the facts is drawn from statements made to responding police officers and social workers, medical records and Leroy’s and T.B.’s testimony at the jurisdiction hearing.
Although Leroy later claimed he acted in self-defense, during the argument he held T.B.’s hands down and pushed her onto the bed. As T.B. lay there, Victoria told her Leroy had touched her vaginal area too and “has been digging in my pussy with his finger.” T.B. then accused Leroy in explicit terms of molesting Victoria, who remained in the room. Leroy asked T.B. why she would say something like that in front of Victoria. After half an hour of T.B.’s accusations, Leroy left the apartment to avoid escalating the conflict.
T.B. then called the police and reported to the responding officers Victoria had said Leroy “placed a finger inside her vagina.” She also told the responding officers Victoria had told her in June 2005 Leroy had touched her vagina although T.B. had not reported the incident because she discounted Victoria’s statements due to her age, believing Leroy had been bathing Victoria. She also recounted an incident in May 2006 when Leroy had informed her Victoria had developed a “boil on her vagina,” for which she had been treated at a Kaiser Permanente facility. T.B. never personally contacted the doctor or examined Victoria.
Victoria confirmed her statements to T.B. in interviews with one of the responding police officers and a social worker for the Los Angeles County Department of Children and Family Services (Department). She told the police officer, “‘My daddy touches my vagina with his hands. He doesn’t take his clothes off. He puts his finger in my vagina when I’m laying in the bed.’” She also told the social worker, “‘I told my mommy that my daddy was touching me in the vaginal area.’” T.B.’s brother and boyfriend each reported they had heard Victoria say approximately two months earlier that her daddy had touched her “pussy.” Nevertheless, an examination by the Santa Monica Rape Treatment Center reported Victoria’s hymen to be intact with no evidence of abuse, and medical records obtained from Kaiser supported Leroy’s account that Victoria had suffered from a labeal boil and complications of her previously diagnosed eczema, which could have been transferred to her vaginal area by hand contact.
Based on the events of September 3, 2006 the Department detained Victoria and filed a petition under section 300 alleging Leroy had sexually abused Victoria (§ 300, subd. (d)) and T.B. had failed to protect her from the sexual abuse (§ 300, subd. (b).) After the Department learned T.B. had obtained a domestic violence restraining order against Leroy following the September 3, 2006 incident, the petition was amended to add an allegation of serious physical harm (§ 300, subd. (a)) and two additional allegations of failure to protect based on Victoria’s exposure to violent altercations (between T.B. and Leroy, as well as T.B. and other partners) and T.B.’s positive tests for marijuana (§ 300, subd. (b)).
S.B. was also detained by the Department. The dependency proceedings related to her are not at issue in this appeal.
Even though the couple had divorced, T.B. remained on the lease and obtained a restraining order forcing Leroy to leave the apartment to her. Leroy later claimed T.B. admitted she had sought the restraining order to allow her to keep the apartment.
On October 6, 2006 Leroy filed a notice of Victoria’s potential membership in the Cherokee tribe.
Mediation was unsuccessful. After multiple continuances, a contested jurisdiction hearing was conducted on April 5, 2007. Larry and T.B. each testified, but the court determined Victoria, who had just turned five, was not competent to testify. The detention report, jurisdiction/disposition report and several addendum reports were admitted into evidence without objection. Based on the testimony and the Department’s reports, the court struck the allegation of serious physical harm and amended the allegations relating to sexual abuse and failure to protect by deleting the allegation of digital penetration. As the court explained, “I think the evidence at least supports fondling her vagina. I’m not sure of the penetration -- I mean it’s not real clear to me what she’s reporting. She’s reporting something that sounded fairly suspicious, and so I’m striking ‘and digitally penetrating’ and sustaining B-1 as amended.” The court sustained the remaining allegations as amended. The court also directed the Department to issue the appropriate ICWA notices, which for some reason were not issued when Leroy filed a declaration of potential tribal membership in October 2006.
The Department failed to issue the required ICWA notices until one week before the disposition hearing scheduled for May 1, 2007. Nonetheless, the court proceeded with the hearing, declared Victoria to be a dependent child of the court, found her removal and placement to be necessary and appropriate and ordered family reunification services for both parents.
CONTENTIONS
Leroy asserts the juvenile court lacked substantial evidence to sustain the allegation he sexually abused his daughter or to remove her from his physical custody. He also contends the court erred in proceeding with the disposition hearing before the 10-day statutory notice to the tribe required by ICWA had expired.
DISCUSSION
1. Standard of Review
When the sufficiency of the evidence to support a juvenile court’s jurisdiction findings or disposition orders are challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports them. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Albert T. (2006) 144 Cal.App.4th 207, 216; see In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Substantial evidence is “‘evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could [make the same finding].’” (In re Angelia P. (1981) 28 Cal.3d 908, 924.) “Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. [Citation.] We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact.” (In re Albert T., at p. 216.)
2. The Juvenile Court Did Not Err in Sustaining the Petition and Removing Victoria from Leroy’s Custody Based on His Sexual Abuse of Victoria
a. The court’s findings related to domestic violence and drug use independently justify sustaining the dependency petition and removing Victoria
Leroy limits his challenge to the court’s jurisdiction and disposition findings to those premised on his sexual abuse of Victoria. As the Department correctly points out, the court’s declaration of dependency and removal of Victoria were also based upon separate findings relating to Leroy and T.B.’s failure to protect Victoria from T.B.’s drug use and her exposure to violent altercations, including incidents between Leroy and T.B.. As other courts have recognized, “a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.) Because the court’s additional findings under section 300, subdivision (b), provide independent grounds for affirming the declaration of dependency and removal of Victoria from her parents, any insufficiency of the evidence to support the findings relating to sexual abuse is technically moot. (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [single basis of jurisdiction is sufficient to uphold dependency court’s order]; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876 [where one basis for jurisdiction supported by substantial evidence, court need not consider sufficiency of evidence to support other grounds].) Accordingly, the juvenile court properly assumed jurisdiction over Victoria and ordered her removed from the custody of her parents regardless of the adequacy of the proof related to sexual abuse by Leroy. (See § 302, subd. (a).)
b. The child hearsay exception
Although unnecessary to affirm the orders challenged on appeal, we address Leroy’s challenge to the adequacy of the evidence supporting the findings of sexual abuse because of the potential impact of those findings on future placement and reunification orders. (In re John S. (2001) 88 Cal.App.4th 1140, 1143.) Leroy contends the court lacked substantial evidence for such findings and particularly challenges the court’s reliance on then-four-year-old Victoria’s statements to the responding police officer and investigating social worker even though the court had concluded Victoria was not competent to testify.
We review a ruling on the admissibility of evidence under the child dependency hearsay exception under the abuse of discretion standard. (In re Cindy L. (1997) 17 Cal.4th 15, 35.) With respect to the jurisdiction hearing, section 355, subdivision (b), provides, “[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).” Thus, social studies prepared by social workers “fit[] within the class of ‘legally admissible’ evidence on which a court can rely in a jurisdictional hearing, despite the fact that a social study is itself hearsay and may contain multiple levels of hearsay.” (Cindy L., at p. 21, citing In re Malinda S. (1990) 51 Cal.3d 368.)
Section 355, subdivision (c)(1)(B), in turn, limits the admissibility of a child’s hearsay statements: “If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes [¶] . . . [¶] [t]he hearsay declarant is a minor under the age of 12 years who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under the age of 12 years shall not be admissible if the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence.”
No one, including Leroy, objected at the jurisdiction hearing to the admission of the Department’s exhibits or to portions of those exhibits based on hearsay; nor did they move in limine to strike or to exclude any of Victoria’s out-of-court statements as hearsay. When the Department offered into evidence its reports and attachments containing, via multiple levels of hearsay, Victoria’s statements, the court specifically asked whether there was any objection to it receiving the evidence. There was none. Victoria’s statements to the responding police officers and social worker, which were contained in the Department’s detention report and the police report, were thus admissible and by themselves constituted competent evidence for the court’s finding of jurisdiction absent timely objection.
Based on Leroy’s failure to object, we would ordinarily conclude he has forfeited his objection on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; see In re Clara B. (1993) 20 Cal.App.4th 988, 1000 [father waived objection by failing to object to child’s therapist’s opinion father was perpetrator].) Yet, construing section 355 in a similar situation, the Supreme Court observed, “section 355 notwithstanding, the out-of-court statements of a child who is subject to a jurisdictional hearing and who is disqualified as a witness because of the lack of capacity to distinguish between truth and falsehood at the time of testifying may not be relied on exclusively unless the court finds that ‘the time, content and circumstances of the statement provide sufficient indicia of reliability.’” (In re Lucero L. (2000) 22 Cal.4th 1227, 1247-1248, quoting Cindy L., supra, 17 Cal.4th at p. 29.) Reliability factors include “‘(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate.’” (Lucero L., at p. 1239.)
Evaluating these factors on this record, we cannot say the juvenile court erred in admitting Victoria’s statements. According to three adults, T.B., her brother and her boyfriend, Victoria made comments similar to those she made to the police and the Department’s social worker over the course of a year or more and used words to describe Leroy’s conduct that would appear to fall beyond the vocabulary of a typical four-year-old. Further, when asked by the social worker if she had said anything to her mother about what her father was doing to her, Victoria “was very clear and [stated], ‘I told my mommy my daddy was touching me in my vaginal area.’” While one could question whether Victoria was motivated in part by the conflict between her mother and father, there is no doubt the juvenile court had before it substantial evidence to support its conclusion Leroy had sexually abused Victoria.
The absence of any objection by Leroy or his counsel deprived the court of the opportunity to enumerate in more detail the factors it found relevant to its findings and deprived Leroy of the opportunity to dispute those factors.
Likewise, we cannot say the court erred in relying on the finding of sexual abuse, in addition to the other, unchallenged findings of parental neglect, in determining Victoria’s removal from Leroy and T.B. was warranted under section 361. Our review of the findings supporting the court’s disposition orders is similarly constrained by the substantial evidence test, even as we bear in mind the heightened burden of proof of clear and convincing evidence for removal of a child under section 361, subdivision (a). (In re Kristin H., supra, 46 Cal.App.4th at p. 1654; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326; In re Angelia P., supra, 28 Cal.3d at p. 924.) In light of Victoria’s repeated statements to a succession of adults, including her family members and child welfare professionals, the juvenile court did not abuse its discretion in relying on those statements to support removal of Victoria from the custody of her parents. As in many juvenile dependency cases, we trust the juvenile court to bear in mind the lack of explicitly corroborative evidence of Leroy’s sexual abuse in future proceedings.
Section 361, subdivision (c)(4), provides, “A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . . [¶] . . . [¶] (4) The minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian . . . .”
3. The Parties Agree Remand Is Necessary To Allow Consideration of the Indian Tribe’s Response to the Pending ICWA Notice
The Department concedes the 10-day statutory notification period mandated by ICWA (25 U.S.C., § 1912, subd. (a)) did not expire before the juvenile court issued its disposition orders and acknowledges this court should remand the matter and direct the juvenile court to fully comply with the notice requirements of ICWA if it has not already done so. To accomplish this limited remand, it is not necessary to reverse or vacate the juvenile court’s disposition order. (In re Brooke C (2005) 127 Cal.App.4th 377, 385-386; accord, In re Veronica G. (2007) 157 Cal.App.4th 179, 188; but see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 785 .) After proper notice under ICWA, if it is determined that Victoria is an Indian child and ICWA applies to these proceedings, Leroy (or T.B., for that matter) is entitled to petition the juvenile court to invalidate orders that violated ICWA. (See 25 U.S.C. § 1914; Cal. Rules of Court, rule 5.664 (n)(1); see generally In re Veronica G., at p. 188.)
At the 12-month review hearing (§ 366.21, subd. (f)) on November 5, 2007, the juvenile court found “this is not an American Indian heritage case as to minor Victoria P[.]” (We take judicial notice of the court’s November 5, 2007 minute order pursuant to Evid. Code § 459, subd. (a).) Because neither counsel for Leroy nor counsel for the Department brought this development to our attention, we are unable to determine if the court’s finding was made after proper notice.
DISPOSITION
The jurisdiction and disposition orders of the juvenile court are affirmed. The matter is remanded to the juvenile court for compliance with ICWA notification requirements and for further proceedings not inconsistent with this opinion.
We concur: ZELON, J., WILEY, J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.