Opinion
B304391
01-26-2021
In re C.R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. HUGO C., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP08070) APPEAL from orders of the Superior Court of Los Angeles County, Jana M. Seng, Judge. Affirmed. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Hugo C. appeals from the juvenile court's order asserting dependency jurisdiction under Welfare and Institutions Code section 300, subdivisions (b)(1) and (d), over C.R., his infant son with his former companion Cassaundra R. (Mother). Hugo also appeals the court's disposition order removing C.R. from his custody.
Subsequent undesignated citations are to the Welfare and Institutions Code.
The juvenile court made jurisdictional findings against Hugo and Mother, finding Hugo sexually abused then three-year old Cassidy, Mother's child from another relationship, and Mother failed to protect Cassidy.
Hugo does not contest that Cassidy was sexually abused. Rather, he insists Cassidy was lying when she identified him as her abuser in statements she made to a nurse, two police officers, and two sexual abuse forensic examiners. Hugo contends Cassidy's hearsay statements do not contain sufficient indicia of reliability to support dependency jurisdiction over C.R.
We affirm. Cassidy's consistent identification of Hugo on three occasions to five different professionals on the day she was initially examined for a sexually transmitted disease (STD) is substantial evidence supporting the juvenile court's assertion of jurisdiction over C.R. Because we affirm the jurisdictional findings against Hugo based on the sexual abuse of Cassidy, Hugo's challenge to the related removal order involving C.R. is without merit.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading up to Dependency Jurisdiction
This case involves two minor children, Cassidy R., who was three years old at the time of the referral, and C.R., a newborn. Mother is the biological mother of both Cassidy and C.R. Hugo is the father of C.R. Charlie S. is the father of Cassidy.
1. November 11, 2018: Cassidy is Taken to the Hospital and Identifies Hugo
On November 11, 2018, Cassidy was in the care of Charlie. Charlie and Mother had an informal custody agreement involving Cassidy in which they alternated caring for Cassidy every three to four days. On the first day of one of Cassidy's visits with her father, he noticed her underwear had a green-colored discharge. Charlie examined Cassidy's vagina and noticed a rash and redness. Charlie took pictures of Cassidy's vagina and sent them to his aunt, a registered nurse, who advised him to take Cassidy to the hospital.
At Gardena Memorial Hospital, the treating nurse observed redness, swelling, and discharge in the area of the child's vagina. The nurse asked Charlie if she could speak with Cassidy and Charlie agreed. When asked if someone had touched her vagina, Cassidy responded, "yes." When asked who had touched her vagina, Cassidy responded, "Hugo." The treating nurse then asked Charlie who "Hugo" was, and Charlie replied Hugo was Cassidy's Mother's boyfriend. The nurse stopped her questioning.
Two police officers responded to the hospital. Mother provided them with Hugo's name, birthdate, and a phone number, but refused to provide his home address, stating it was confidential. The officers informed Charlie and Mother that they would need to conduct a follow up investigation at a Sexual Abuse Response Team (SART) site.
A SART examination is conducted pursuant to county protocols for investigations of sexual assault. (See Pen. Code, §§ 13898-13898.2.)
The SART site was at Los Angeles County+USC Medical Center. There, the two police officers first interviewed Mother. Mother informed them she was currently nine months pregnant with Hugo's child (C.R.). Although their one and one-half year relationship had ended in July 2018, they continued to see one another. Hugo would visit Mother at her residence, but Mother insisted she did not leave Cassidy alone with Hugo. Mother again refused to provide Hugo's address.
The police officers next interviewed Cassidy. They asked Cassidy, "what hurts," and she pointed at her vagina. They asked if someone touched her vagina, and Cassidy stated, "Hugo." One of the two officers then asked Cassidy if Hugo touched her vagina over the clothes or on the skin. The other officer demonstrated what the first officer meant by touching Cassidy's leg and then touching her clothes. Cassidy stated "skin" and that Hugo put his hand down her pants. Cassidy demonstrated how Hugo touched her vagina by rubbing the top of one of the officer's hands "in a back and forth motion." Cassidy used one finger as she did so. Cassidy also said Hugo touched her while they were sitting in his "green" car while Mother was upstairs checking the clothes. After Cassidy appeared to become nervous, the officers stopped the interview. Mother confirmed that Hugo drove a green car.
Two sexual assault nurse examiners examined Cassidy. They determined Cassidy's hymen was still intact and there was no trauma, but Cassidy's vagina was red and it had an off-white discharge. A culture was taken, resulting in a diagnosis of gonorrhea. Cassidy was treated with medication. A physician at the SART site concluded that the diagnosis of gonorrhea was consistent with sexual abuse.
Cassidy was re-evaluated at Gardena Memorial Hospital on November 12, 2018. The treating physician noted that Cassidy had both a green and white discharge. After obtaining a urine sample, the physician issued a prescription for antibiotics based on a finding of "[g]onorrhea versus chlamydia versus victim of sexual assault versus acute cystitis versus vulval vaginitis."
The "Forensic Medical Report, Child/Adolescent Sexual Abuse Examination" concluded with the following notes: "Per child, when asked where she went today, she said, 'my dad took me to the doctor and they checked me down there (vaginal area). It hurts because it keeps hurting.' When asked did someone or something hurt her, she said, 'Hugo. He put his hand inside. ([D]emonstrated putting her hands under pants[.)]' When asked if he said anything to her, she said, 'He said he's going to leave. I don't like him.' "
To summarize, Cassidy identified Hugo as her abuser three times on November 11, 2018, to (1) a hospital nurse, (2) two police officers, and (3) a team of two nurses trained to conduct sexual abuse examinations.
2. Pre-removal Dependency Investigation
On November 19, 2018, a social worker went unannounced to Charlie's home. Charlie's household included the paternal grandmother, paternal aunt, Cassidy, her half-sister, and a paternal great aunt, who was not present at the time.
The social worker interviewed Charlie, who stated he had met Hugo once. The paternal grandmother told him she had once seen Hugo kiss Cassidy on the mouth, and that she had told Hugo not do to that. Charlie said when he asked Mother about how Cassidy could have contracted gonorrhea, Mother said she must have contracted it from a public bathroom. Mother would not give Charlie any information about Hugo.
The social worker then met with Cassidy, who said she would rather draw than talk. The social worker asked Cassidy to talk to her while she drew; Cassidy agreed. Because Cassidy was focused on drawing, she did not answer all of the social worker's questions. She denied anyone touched her vagina and said she did not know a person named Hugo. Cassidy also stated she did not go to the doctor.
The social worker next interviewed the paternal grandmother, Melva G. Melva relayed that after Cassidy was diagnosed with gonorrhea, she was playing with Cassidy when the child told Melva the following: Hugo was naked, sat on the bed, and Cassidy told him to put clothes on; using a toy to demonstrate, Cassidy showed by pushing against her genital area what Hugo did to her (what the paternal grandmother described as penetrating); while Cassidy and Hugo sat on the sofa, Hugo put his finger in Cassidy's vagina and then put his finger to his lips; and Hugo took her to the bathroom, turned off the lights, and urinated on her.
On November 21, 2018, a social worker visited Mother at the hospital. Mother had recently given birth to C.R. Mother stated she currently resided at St. Anne's. Mother identified C.R.'s father as Hugo, but was unwilling to divulge any information about him. Mother said they had been in a relationship on and off for two years, and were no longer together. She stated Hugo was a "good guy" and that they intended to co-parent C.R.
Per a social worker's report: "St Anne's is a facility that offers single mothers who have aged out of the foster system 'a hand up.' "
When asked about the sexual abuse allegation, Mother stated that she noticed Cassidy had some discharge, but did not pay too much attention to it. Mother said Cassidy had not complained of vaginal pain, although she noticed she had scratched the area a couple of times but that lasted about a day. The social worker noted Mother avoided using the word "gonorrhea." Mother stated she knew Cassidy had tested positive for gonorrhea; she did not know how the child got it. Mother asserted that Cassidy had never been left alone with Hugo. Mother did not know why Cassidy would say Hugo touched her. She believed Cassidy was being coached.
Mother added the last time Cassidy saw Hugo was on October 31, 2018. Mother was asked what she would do if the investigation revealed it was Hugo who gave gonorrhea to Cassidy; Mother answered by insisting it was not Hugo. Instead, she wanted everyone to take a lie detector test because she did not know who gave Cassidy gonorrhea. Mother said Cassidy could have gotten gonorrhea from a restroom.
After giving birth to C.R., Mother petitioned the family court for legal custody of Cassidy. The petition was granted and Cassidy was removed from Charlie's home. Charlie told the social worker that Mother had alleged in the family court that Cassidy had contracted an STD from a member of Charlie's family; she did not mention Hugo.
A request for a removal warrant was authorized on December 13, 2018. Cassidy and C.R. were taken into protective custody on December 17, 2018.
On December 17, 2018, the supervising social worker spoke with a social worker of the Children's Rights Project who stated Mother had indeed informed the family court there was an ongoing dependency investigation and named Charlie as the alleged perpetrator, not Hugo. This revelation caused Cassidy to be released back to Charlie that same day.
The same day, Mother's family friend, Shyea B., contacted the Department to express her interest in caring for Cassidy. Shyea said that Cassidy referred to a "Grandpa Zilly" hitting her, and then clarified that Cassidy said "Grandpa Zilly" had not yet hit her. The social worker called Charlie and asked about a "Grandpa Zilly or a Grandpa Billy;" Charlie advised he did not know anyone by those names and there were no other males in the home. He added that he heard about "Grandpa Zilly or Billy" for the first time at a family court hearing earlier that day involving custody of Cassidy.
On December 18, 2018, a social worker spoke by telephone with Hugo. Hugo said he had been in a relationship with Mother for three years, but he was married to another woman. He and his wife had three children (two were adults and one was a minor). He acknowledged C.R. was his child. His wife and family did not know about Mother or the Department's investigation. Hugo denied the sexual abuse allegation and said he had never been alone with Cassidy and that Mother always was present. Hugo offered that Charlie might be the perpetrator and that the paternal family should be investigated. Hugo said he had tested negative for STDs.
B. Detention Hearing
The detention hearing was held on December 20, 2018. The juvenile court found Hugo to be C.R.'s presumed father. The court made prima facie findings that the children were described by section 300 and detained C.R. from Hugo and Mother. The court detained Cassidy from Mother as well. The court ordered the parents to have monitored visits with C.R. The Department was directed to arrange a forensic interview.
C. The Department's Continuing Investigation
The dependency investigator conducted an interview at Charlie's home on February 6, 2019. At that time, C.R. was in a foster home and Cassidy was at home with her father Charlie.
The investigator asked Cassidy if she knew the difference between the truth and a lie. Cassidy said she did not. But when the dependency investigator gave her examples of true and false statements, Cassidy was able to distinguish between them. Cassidy then agreed to give true statements in the interview. But when asked about the sexual abuse allegations, Cassidy deflected by talking about other things and said she would talk about them later. The dependency investigator then asked if Cassidy knew why the investigator was there, and she answered, "because I wasn't ok down there [pointing to her vaginal area]." Before ending the interview, the dependency investigator asked Cassidy if she wanted to see Hugo, and Cassidy answered no and then yes. Asked what she wanted to tell the court, Cassidy replied, "just tell him [the Judge] I don't want to talk to [Hugo]."
Charlie reiterated that Mother had obtained an emergency custody order on the false representation that he had given Cassidy an STD. Charlie observed that Mother had Cassidy for three days after she removed Cassidy from Charlie, and when Cassidy next returned to Charlie, Cassidy said for the first time that she did not have "anything"—referring to an STD—and that Hugo had not touched her. Cassidy did not talk much about what happened at Mother's home, although she once saw two of Mother's friends kissing. Cassidy did not talk about having contact with any other men other than Hugo.
The dependency investigator interviewed Hugo that same day. He denied sexually abusing Cassidy. Hugo said he never changed Cassidy's diaper, took her to the bathroom, bathed her, or changed her clothes. He claimed he was never left alone with her. Hugo admitted transporting Mother and Cassidy in his car and was once left alone with Cassidy in the car while she was in the backseat.
Hugo stated he had visited Mother at St. Anne's approximately two to three times for about an hour each time. Once Mother became pregnant, he saw her less frequently. He denied ever having an STD. He said he tested negative and this proved he did not sexually abuse Cassidy. Hugo's wife also obtained an STD test but he did not know the results. He revealed he had been intimate with both his wife and Mother.
A photocopy of Hugo's test result was attached to a Department report, later admitted into evidence at the jurisdiction hearing.
Hugo did not agree with C.R. being detained from Mother because the allegations against him were not true. Hugo thought Charlie's home should be investigated since it was Charlie who made the allegations.
The dependency investigator returned to Charlie's home on February 6, 2019, and interviewed the paternal grandmother, Melva G. Melva advised she had been trained in child abuse and neglect and had worked at Kedren Head Start. She initially became concerned when Cassidy appeared overly comfortable raising her legs and parting them during diaper changes. She was worried Cassidy was displaying sexualized behavior, such as sitting on top of another child residing in the home and moving her hips back and forth, simulating sex. D. February 20, 2019, Juvenile Court Orders
On February 20, 2019, the juvenile court made several orders regarding Cassidy. The court ordered that Cassidy have a forensic interview and permitted her to be released to a nonrelated extended family member, Laura S., upon the completion of a home assessment. The court ordered that no one speak with Cassidy about the allegations. The court reiterated that Cassidy must have no contact with Hugo.
E. Pre-adjudication Hearing Investigation
The dependency investigator interviewed Mother on March 6, 2019. Mother recounted how she got involved with Hugo after meeting him at a liquor store. It was not until she became pregnant that she learned Hugo was married. She described Hugo as "family oriented." Mother said Cassidy played with Hugo and was never left alone with him. Mother said she last saw Hugo in September 2018. She had never seen Cassidy with discharge in her underwear or the child's underwear being wet. Mother had seen Cassidy "touch herself," try to kiss a child on the mouth, and touch her vagina under her pants, but Mother attributed these behaviors to curiosity. Mother said that Cassidy had stated she was sexually abused by a "Grandpa Billy."
The forensic interview ordered by the juvenile court was ultimately conducted on April 1, 2, and 3, 2019. On April 1 and 2, the forensic interviewer indicated Cassidy was "too scared" to provide any information, and described Cassidy as very distractable and unable to articulate well.
During Cassidy's interview on April 3, she was asked if she was going to tell the truth that day, and Cassidy answered, "I don't think I will." Cassidy then moved under the table and answered questions from there. Cassidy would not answer questions related to the sexual abuse allegations, and sometimes said, "I can't talk about it," and "I can't tell you." When asked about Hugo, Cassidy said, "I don't know about him," but also said "I don't like Hugo." When the forensic interviewer pointed out that Cassidy had drawn Hugo in the family picture the previous day, Cassidy answered, "Yeah, but now he's wrong. But I don't know Hugo no more." When asked why Hugo was wrong, Cassidy replied, "Because I don't like him so he's wrong." When asked why she did not like him, Cassidy responded, "Because he's so wrong. I don't like that. . . . I don't like Hugo. . . ." The forensic interviewer asked, "What does he do that you don't like?" Cassidy answered, "Because Hugo is wrong. Hugo is really wrong."
When the forensic interviewer asked about a "Grandpa Billy," Cassidy said she did not know him, but also said she did not know Hugo. Cassidy also said she did not know her father Charlie. When asked if C.R. was safe with Hugo, Cassidy twice answered, "No." She said C.R. was safe "with my mom."
During a forensic interview on April 3, 2019, Charlie stated that Cassidy once told him that if she talked about Hugo, Hugo would go to jail. Charlie said there was no one in the paternal family named Billy, nor were his neighbors named Billy. He did not know anyone named "Billy, Zilly, or Villy." Cassidy talked about Billy only when she returned from her monitored visits with Mother.
The dependency investigator spoke with Mother's therapist at St. Anne's on September 17, 2019. The therapist believed that Mother's earlier denial that Hugo perpetrated the abuse was due to her shock about the allegations. The therapist said Mother did not appear to have any contact with Hugo and was prepared to care for her children.
F. Adjudication Hearing
The court held the adjudication hearing on October 30, 2019. Mother testified she and Hugo ended their relationship in August 2018, and she did not see him again until after C.R. was born. She denied Hugo had been left alone with Cassidy. Mother testified that when she had earlier denied that Hugo was the perpetrator during the Department's investigation, she was in shock and had just given birth to C.R., and there was "just too much going on." She no longer thought Cassidy lied that Hugo was the person who abused her, agreeing that "she was probably telling the truth."
Mother also called Laura S., C.R.'s interim caregiver to the stand. Laura testified that before the removal order, Cassidy said she did not want to go to the paternal home and that Grandpa or Grandma Billy scared her. After the children were removed, Laura heard Cassidy spontaneously mention Grandpa Billy during several visits with Mother.
No party sought to call Cassidy to testify at the hearing. The court did not make any finding concerning Cassidy's competence to testify.
The court made the following findings regarding the reliability of Cassidy's hearsay statements identifying Hugo as her abuser: "The court finds the child Cassidy's statements to the paternal grandmother, to the forensic nurse, and to the police to be credible in that they were all consistent in identifying the perpetrator being Hugo [C.]; in that the minor not only was consistent but provided details and examples of the acts that were perpetrated by Hugo [C.]. The minor had exhibited sexualized behavior that she attributed to the acts performed by [Hugo], and, finally, the minor having been diagnosed with gonorrhea on November 11th, 2018."
The court also found Cassidy's statements involving "Grandpa Billy" to lack credibility: "The court does not find credible that [Cassidy] had identified a person by the name of Grandpa Billy. That was sometime afterward, and there is no person by the name of Grandpa Billy that has been identified to this court as even being a possible perpetrator for this minor."
The juvenile court sustained an amended petition pursuant to section 300, subdivisions (b)(1) and (d). The court found count b-1 true as alleged to Mother, and found count d-1 true as alleged to Hugo. Both counts alleged in pertinent part as follows: "The children [Cassidy and C.R.'s mother['s] . . . male companion, Hugo . . . , father of the child [C.R.], sexually abused the child Cassidy. [Hugo] fondled the child's vagina. On or about 11/11/2018, Cassidy was medically examined and found to be suffering from a detrimental condition, including redness to the child's labia majora, pain to the child's vaginal area, vaginal discharge, and the diagnosis of gonorrhea, requiring medical treatment. [Mother] knew or reasonably should have known of [Hugo's] sexual abuse of the child and failed to protect the child."
Disposition was continued.
G. Further Investigation
The Department reported in a last minute information for the court that Hugo had not visited C.R. for the past six weeks "due to paternal grandmother being sick." Prior to that, Hugo visited sporadically and only at the initiation of the caregiver. Hugo had not attended any recommended services or provided any proof of enrollment.
The Department additionally reported that it interviewed Hugo again on January 9, 2020. Hugo disagreed with the juvenile court's order sustaining the sexual abuse allegations. He said he had not participated in services or visits because of his grandmother's health and care. Hugo said "he had no concerns if [C.R.] were in the care of Mother."
H. Disposition
At the January 13, 2020, disposition hearing, the juvenile court allowed Cassidy to remain in the care of Charlie, and gave the Department discretion to liberalize the court's visitation orders involving Mother.
The juvenile court declared C.R. a dependent of the court and ordered him placed in Mother's home on the condition she reside at St. Anne's and have no contact with Hugo.
The juvenile court removed C.R. from Hugo, "given the severity of the allegations of sex abuse against [him]." It ordered family reunification services for Hugo consisting of sexual abuse counseling for perpetrators, individual counseling to address sexual abuse, and parenting classes. The court ordered Hugo to have monitored visits with C.R.
Hugo timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
1. Standard of Review
We review the juvenile court's jurisdictional findings for substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) Under this standard, " 'we must uphold the . . . [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 [them].' " (Ibid.)
2. Section 300, Subdivisions (b)(1) and (d)
Section 300, subdivision (b), allows a child to be adjudged a dependent of the juvenile court when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." (Id., subd. (b)(1); In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215.)
Section 300, subdivision (d), states in relevant part, that a child may be adjudged a dependent when "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent . . . ."
B. Substantial Evidence Supports Dependency Jurisdiction over Cassidy
Hugo argues the juvenile court erroneously relied on Cassidy's hearsay statements identifying him as her abuser. He contends Cassidy was not a truth competent witness and her hearsay statements do not contain sufficient indicia of reliability.
1. Admission of Hearsay by Children Under the Age of 12 as Contained in Social Study Reports
As a general rule, an out-of-court statement offered for the truth of the matter asserted is inadmissible in evidence. (Evid. Code, § 1200.) But, in cases involving suspected child abuse and neglect, California has created an exception to the hearsay rule because "strict adherence to the [hearsay] rule would lead to the exclusion of firsthand reports of many victims in the very proceedings that are designed to protect them from harm." (In re I.C. (2018) 4 Cal.5th 869, 884.)
The statutory exception to the hearsay rule applicable in dependency proceedings is found at section 355. It provides that a child's out-of-court statement recorded in the social worker's report generally is admissible. (§ 355, subds. (a), (b).) If a party objects to specific hearsay evidence, that evidence "shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based," unless it falls under an exception. (§ 355, subd. (c)(1).) One such exception is when the hearsay declarant is a child under age 12 who is the subject of the hearing. (§ 355, subd. (c)(1)(B).) The child's statement is admissible unless it is established to be unreliable because it was the product of fraud, deceit, or undue influence. (§ 355, subd. (c)(1)(B); see generally Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020) § 2.110[13], pp. 2-372—2-381 [discussing child dependency hearsay exception]; Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2019) §§ 4.25-4.27, pp. 300-301 [same].)
Although the California Supreme Court upheld the constitutionality of section 355 in In re Lucero L. (2000) 22 Cal.4th 1227, the court imposed an additional requirement in cases where the child's hearsay statements are the only evidence supporting a jurisdictional finding, and the child was found to be incompetent to testify due to her inability to distinguish truth from falsity. (Id. at pp. 1246-1248 (plur. opn. of Mosk, J.); id. at pp. 1250-1251 (conc. opn. of Kennard, J.).) In such cases, the juvenile court must make a finding that the child's hearsay statements "possess special indicia of reliability before being exclusively relied on" for a jurisdictional finding. (Id. at p. 1247 (plur. opn. of Mosk, J.).)
In In re I.C., the Supreme Court explained that the reliability requirement it imposed in In re Lucero L. is "ultimately" a demand that the " ' "time, content and circumstances of the [hearsay] statement provide sufficient indicia of reliability" ' to support the juvenile court's jurisdictional finding, considering the important interests at stake." (In re I.C., supra, 4 Cal.5th at p. 890, quoting In re Cindy L. (1997) 17 Cal.4th 15, 29.) Factors lower courts should consider when reviewing the reliability of a child's hearsay statement include the following: " '(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; . . . (4) lack of motive to fabricate,' " and (5) although not determinative, " 'the child's ability to understand the duty to tell the truth and to distinguish between truth and falsity.' " (In re I.C., supra, 4 Cal.5th at p. 891; In re Lucero L., supra, 22 Cal.4th at p. 1239 (plur. opn. of Mosk, J.).) These factors are not a comprehensive guide, the court emphasized, and lower courts should follow " '[t]he unifying principle . . . that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.' " (In re I.C., supra, at p. 891.)
2. The Juvenile Court Properly Found Cassidy Credible and Her Hearsay Statements Reliable
In the instant case, the minor child was not called to testify and there was no finding that she was truth incompetent. Nonetheless, a child's competence to testify is only one consideration in determining whether the child's hearsay statement is reliable. (In re Cindy L., supra, 17 Cal.4th at pp. 18, 34-35; see In re Lucero L., supra, 22 Cal.4th at p. 1240 (plur. opn. of Mosk, J.).) We consider the reliability of Cassidy's statements under the standards announced in In re I.C. and In re Lucero L.
Hugo argues reversal is required under In re I.C., supra, 4 Cal.5th 869. In that case, the Supreme Court held that hearsay statements made by a truth-incompetent, three-year-old child were insufficient to support the jurisdictional finding of sexual abuse because the statements did not bear special indicia of reliability. (Id. at p. 896.)
Review of the facts of In re I.C. reveals the case does not aid Hugo. Two months before the alleged parental abuse, I.C. was sexually molested by her eight-year-old neighbor in an incident that included insertion of an object into her vagina. (In re I.C., supra, 4 Cal.5th at p. 877.) I.C.'s five-year-old brother, who was present at the time of the incident, reported that the object was a toy train. (Ibid.) An investigation ensued, which included a police interview and a medical examination. (Id. at pp. 877-878.) In the months that followed, the mother had multiple discussions with the child about the incident, explaining the difference between "good touches" and "bad touches." (Id. at p. 878.)
I.C. and her family unexpectedly encountered the abuser two months later, which left I.C. frightened and confused. (In re I.C., supra, 4 Cal.5th at p. 878.) The following week, I.C. spontaneously told her mother that " '[m]y dad put his penis on me.' " (Ibid.) During the ensuing forensic interview, I.C. made inconsistent statements, but also repeatedly stated that her father had put his penis on her, as well as a flower and a train. (Id. at p. 879.) She also stated that her father put his penis, a train, and a flower on his adult daughter in the presence of I.C., a babysitter, and the babysitter's sister. (Id. at p. 880.) I.C. also claimed that earlier on the day of the interview, she had gone to San Francisco, the park, school, went shopping, took a nap, and participated in other activities. (Id. at pp. 879, 894)
The Supreme Court observed that the case presented "an unusual situation in which the child recently had been molested" by a third party, whom she encountered for the first time since the abuse a few days prior to making "strikingly similar" allegations against her father. (In re I.C., supra., 4 Cal.5th at p. 896.) Under those circumstances, the court concluded the juvenile court "failed to take adequate account of the confounding role of I.C.'s prior molestation," which had resulted in a police response, a hospital examination, and many discussions with the child's mother about inappropriate touching. (Id. at p. 892.) This failure was particularly concerning given evidence of the child's "tendency to interweave fantasy with truth," as evidenced by her statements about the abuse involving the father's adult daughter and the babysitter, as well as her statements about the activities she engaged in prior to the forensic interview, none of which took place. (Id. at p. 894.)
The facts of In re I.C. are not the facts before us. There are no prior allegations of sexual abuse involving Cassidy or any evidence that adults had discussed inappropriate touching with her prior to the day of the SART examination. Thus, in contrast to In re I.C., there are no facts to indicate that Cassidy could have been confused by a prior incident.
In re I.C. teaches that juvenile courts must carefully examine and weigh the factors on which a finding of reliability are constructed. Examination of the timing, content, and circumstances of Cassidy's statements leads to the conclusion that the juvenile court's reliability finding is supported by substantial evidence.
Cassidy identified Hugo—and only Hugo—three times to five independent professionals on the same day: the attending nurse at the first hospital, the two responding law enforcement officers, and two SART nurse examiners. The statements were made spontaneously in response to questions posed about her medical condition. Cassidy's repeated statements to neutral professionals consistently referenced trauma to her vaginal area, supporting their reliability. (See In re Carmen O. (1994) 28 Cal.App.4th 908, 921 [finding a child's hearsay statement involving sexual abuse reliable because it "was made not once but several times, and its various recitations were consistent"]; see also In re Cindy L., supra, 17 Cal.4th at p. 35 [indicia of reliability included fact that minor "repeated the statement [that she was sexually abused] consistently to two social workers and to the [law enforcement] investigator"].)
There is no evidence Cassidy had a motive to fabricate that she was abused by Hugo. (See In re I.C., supra, 4 Cal.5th at p. 891 [citing motive to fabricate as a factor in evaluating reliability].) The childish words Cassidy used to describe her abuse, e.g., "my dad took me to the doctor and they checked me down there . . . . It hurts because it keeps hurting," further suggest reliability by indicating she was not coached. (See ibid. [citing the use of terminology as a factor in evaluating reliability]; In re Carmen O., supra, 28 Cal.App.4th at p. 921 [finding the child's "infantile descriptive words indicate[d] no coaching"].) Furthermore, two adult males were in Cassidy's life—Charlie and Hugo—"but no accusation was made against" Charlie. (In re Carmen O., supra, at p. 921 [noting that a child's failure to identify other adult males living in the household indicated "a lack of indiscriminate or random accusations"].)
Although Cassidy made statements involving "Grandpa Billy," or "Zilly," the juvenile court found those statements lacked credibility. There is little to substantiate the claim that Cassidy actually identified "Grandpa Billy" as her abuser. The only evidence that Cassidy made a statement about "Grandpa Billy" harming her was in the report by Mother's friend to the Department, in which the friend reported that Cassidy said that "Grandpa Zilly" was going to hit her; and in Mother's report to the forensic interviewer that Cassidy told Mother that "Grandpa Billy" had abused her. At the evidentiary hearing, however, Mother agreed it was possible that Hugo sexually abused Cassidy, and she did not provide any testimony about "Grandpa Billy." Laura S., Cassidy's court-appointed interim caregiver, reported that she only heard Cassidy mention that "Grandpa Billy" scared her. Cassidy did not bring up "Grandpa Billy" in the interview conducted by the dependency investigator in February 2019. When questioned about "Grandpa Billy" by the forensic interviewer in April 2019, Cassidy denied knowing "Grandpa Billy." Given the lack of reliable evidence that Cassidy actually identified someone known as "Grandpa Billy" as a person who inflicted sexual abuse upon her, the references to "Grandpa Billy" in the record do not undermine the reliability of the more specific statements she made identifying Hugo as the abuser.
The factors bearing on the reliability of a child's statements are not limited to those specifically enumerated in In re I.C. and In re Cindy L. (In re I.C., supra, 4 Cal.5th at p. 891; In re Lucero L., supra, 22 Cal.4th at p. 1250 (plur. opn. of Mosk, J.).) Because the published case law supplies little additional guidance, we turn to the work of Professor John Myers, whose work on evidence in child abuse cases has been cited frequently. (See, e.g., People v. Brown (1994) 8 Cal.4th 746, 758 [citing 2 Myers, Evidence in Child Abuse and Neglect Cases (2d ed. 1992) § 7.31, pp. 194-196]; People v. Eccleston (2001) 89 Cal.App.4th 436, 448 [same]; In re Carmen O., supra, 28 Cal.App.4th at p. 917 [same].)
Professor Myers details factors courts should consider when determining whether to rely upon a child's hearsay statements involving sexual abuse. (See Myers, Myers on Evidence of Interpersonal Violence Child Maltreatment, Intimate Partner Violence, Rape, Stalking and Elder Abuse (6th ed. 2020) (Myers on Evidence).) Several of those factors counsel in favor of the juvenile court's reliability finding.
The "[p]resence in a child's statement of idiosyncratic detail of sex acts may point toward reliability." (Myers on Evidence, supra, Residual Exception, § 7.17.) Unprompted, Cassidy used one finger to simulate what Hugo had done to her when she was interviewed by police officers at the SART center. Further, our review of the record reveals no indication that either the treating nurse, the two police officers, or the two SART nurse examiners asked leading questions. To the contrary, Cassidy volunteered the name "Hugo" in response to being asked "who?" (Cf. Ibid. ["When questions are leading, the possibility exists that the questioner influenced the statement"], fn. omitted.) It is notable that although the juvenile court conducted an evidentiary hearing and heard from witnesses, Hugo did not call any of the five professionals who received Cassidy's disclosures to question the reliability of their reports. (See In re Cindy L., supra, 17 Cal.4th at p. 35 [finding that it was "significant that although [the father] had an opportunity to cross-examine the adults reporting [the child's] statement, no motive to lie was revealed" on the part of those adults].)
The descriptions provided by Cassidy to the five professionals indicate only that Hugo touched her vagina with his hands. This activity appears to be at odds with the diagnosis of gonorrhea. The record, however, shows that the police officers ceased their questions because Cassidy became nervous. The SART report does not indicate whether the examiners attempted to press Cassidy for more details.
Professor Myers notes that children of a young age tend to provide short answers to the types of open-ended questions posed to Cassidy by the five professionals. (Myers on Evidence, supra, Free Recall, Script Memory, Recognition, and Cued Recall, § 1.07.) Although young children may omit important information, research shows their responses tend to be accurate. (Ibid.) Furthermore, the court in In re I.C. cautions that "[c]ourts evaluating abuse allegations must keep in mind that a child's verbal and cognitive limitations may prevent her from providing an account of her abuse that is as coherent and consistent as we might expect from an adult." (In re I.C., supra, 4 Cal.5th at p. 896.) These authorities lead to the conclusion that although Cassidy's statements to the professionals do not explain the type of conduct that would be required to transmit gonorrhea, they should not be disregarded for lack of detail.
Furthermore, the record developed below does not shed light on the full extent of Hugo's interaction with Cassidy. The paternal grandmother reported that shortly after the diagnosis of gonorrhea, Cassidy described acts by Hugo that included pushing against her genitals while naked on a bed and urinating on her in a bathroom. No party called the paternal grandmother to testify to test the credibility of her report. The activities the grandmother reported are consistent with the type of activities that can cause gonorrhea.
The record shows that Hugo had access to Cassidy throughout the Fall of 2018. In her first statement to the social worker on November 21, 2018, Mother stated that Cassidy last saw Hugo on October 31, 2018. Although Mother subsequently made contradictory statements about the last time she saw Hugo, Laura S. substantiated Mother's initial statement to the social worker. Laura S. indicated on a "Caregiver Information Form" that Mother went shopping with Hugo and Cassidy on approximately October 18, 2018. Thus, Cassidy continued to have contact with Hugo close in time to the diagnosis of gonorrhea on November 11, 2018. Finally, we note that the principles of due process do not require corroboration of the child's hearsay statements in dependency proceedings. (In re I.C., supra, 4 Cal.5th at p. 888, fn. 5; In re Lucero L., supra, 22 Cal.4th at p. 1249 (plur. opn. of Mosk, J.).) Nonetheless, Cassidy's report that Hugo once touched her vagina in a green car is corroborated by the evidence that Hugo drives a green car and was once left alone with Cassidy in the car.
Hugo's complaint that "Cassidy did not demonstrate consistency in her statements over a considerable period of time" is not unexpected of child sexual abuse victims. Assuming Cassidy's later reluctance to identify Hugo as the abuser qualifies as a "recantation," Professor Myers observes, "quite a few abused children recant." (Myers on Evidence, supra, Recantation, § 6.05.) He cites one study of child abuse victims that concluded: " '[R]ecantation rates are quite high among cases one can confidently say are true. Indeed, the rates of recantation among cases with corroborative evidence are among the highest across the studies.' " (Ibid., fn. omitted.)
Even when Cassidy would not identify Hugo as her abuser, she nevertheless said Hugo was "wrong," "he's so wrong. I don't like that. I don't like Hugo," and put an "X" over Hugo in the family picture she had drawn. Cassidy's fear of Hugo was apparent from her forensic interview in April 2019, when she twice stated C.R. was not safe with Hugo.
As the In re I.C. court acknowledged, "[a] child's account may reflect uncertainty, and may even contain some contradictions, and nevertheless warrant the court's trust." (In re I.C., supra, 4 Cal.5th at p. 896.) Cassidy spontaneously identified Hugo as her abuser on the day that evidence of sexual abuse first came to light, and made these disclosures to five professionals whose method of questioning Cassidy has not been impeached. The statements were made at a time and under circumstances when she was more likely to make a truthful report. Although Mother and Hugo discontinued their relationship, they continued to see one another. Hugo last saw Cassidy on October 31, 2018, 11 days prior to the diagnosis of gonorrhea. The timing of her interactions with Hugo and the circumstances of her disclosures satisfy the requirement for special indicia of reliability, and are sufficient to demonstrate the juvenile court's finding of reliability is supported by substantial evidence. This holding, in turn, justifies the juvenile court's jurisdictional findings against Hugo predicated on his sexual abuse of Cassidy.
We do not address Hugo's speculative claim that Cassidy somehow confused the abuser with another man she might have been exposed to two years earlier in 2016, when her mother allegedly was a sex worker. This claim is wholly unsupported and is undermined by Hugo's own statements during the investigation, when he denied that Mother had been involved in prostitution.
C. Substantial Evidence Supports Dependency Jurisdiction over C.R.
Hugo argues the juvenile court's assertion of jurisdiction over C.R. is not supported by substantial evidence because "[h]ere, there is absolutely no showing that [C.R.] faced a substantial risk of serious physical harm because Cassidy was sexually abused." We disagree.
Our case law is clear that a finding of sexual abuse involving one sibling " 'makes it virtually incumbent upon the juvenile court to take jurisdiction over the siblings.' " (In re I.J. (2013) 56 Cal.4th 766, 779; see also Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968 ["Cases overwhelmingly hold that sexual abuse of one child may constitute substantial evidence of a risk to another child in the household—even to a sibling of a different sex or age or to a half sibling"].)
Hugo's abuse of a three-year old who then contracted gonorrhea places his infant son C.R. at risk under our precedents. (See, e.g., Los Angeles County Dept. of Children and Family Services v. Superior Court, supra, 215 Cal.App.4th 962 [father's abuse of stepdaughter five to six years earlier supported dependency jurisdiction over biological daughter]; In re P.A. (2006) 144 Cal.App.4th 1339, 1345-1347 [sexual abuse of daughter could be found to pose risk of sexual abuse to younger brothers]; In re Karen R. (2001) 95 Cal.App.4th 84, 90-91 [rape of 13-year-old daughter reasonably could be found "to be so sexually aberrant" that both male and female children siblings of the victim are at substantial risk of sexual abuse]; In re Rubisela E. (2000) 85 Cal.App.4th 177, 197-199 [sexual abuse of 13-year-old daughter supports finding of risk to nine-year-old daughter], disapproved on another ground in In re I.J., supra, 56 Cal.4th at pp. 780-781; In re Joshua J. (1995) 39 Cal.App.4th 984, 994-995 [father who sexually abused a six-month-old boy poses risk of sexual abuse to newborn son].) Therefore, the juvenile court's assertion of jurisdiction over C.R. is supported by substantial evidence.
D. Substantial Evidence Supports the Court's Order Removing C.R. from Hugo's Custody
1. Applicable Law and Standard of Review
Section 361 provides that a juvenile court must not remove a child from parental custody "unless [it] finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5)," which include the circumstance where "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . custody." (§ 361, subd. (c), (c)(1).)
We review a juvenile court's removal order under section 361, subdivision (c), for substantial evidence. (See In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
2. Substantial Evidence Supports the Removal Order
Hugo argues the court erred by removing C.R. because the Department failed to prove by clear and convincing evidence that Hugo posed a substantial danger to his son. We disagree.
As discussed above, substantial evidence supports the juvenile court's finding that Hugo sexually abused three-year old Cassidy. This finding provides clear and convincing evidence that there is a substantial risk of serious harm to C.R. if he is not removed from Hugo's custody, and there are no reasonable means to ensure his safety absent removal.
DISPOSITION
The juvenile court's October 30, 2019, order asserting jurisdiction over Cassidy and C.R., and January 13, 2020, disposition order removing C.R. from Hugo's custody are affirmed.
NOT TO BE PUBLISHED
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ROTHSCHILD, P. J.
CHANEY, J.