Opinion
A147460
02-08-2017
In re Y.G., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SC-UK-JV-SQ-15-1721802)
Two-year-old Y.G. (minor), the daughter of appellant J.G. (Father), was detained from the custody of her mother (Mother) after the minor's half sister, six-year-old R., reported that Father had repeatedly molested her. Because R. was found not competent to testify, the primary evidence supporting jurisdiction over the minor was R.'s account of the molestation to investigators, which is contained in reports submitted by the Mendocino County Health and Human Services Agency (Agency). The juvenile court concluded the minor was at risk of molestation based on R.'s hearsay statements, which the court found to be reliable and corroborated by other evidence in the record. Father contends, for various reasons, that R.'s statements to investigators cannot support dependency jurisdiction. We affirm.
I. BACKGROUND
In May 2015, the Agency filed a dependency petition in connection with the minor, Father's two-year-old daughter. The petition alleged Father had sexually molested Mother's six-year-old daughter, a half sister of the minor, on several occasions when Mother was absent from their home. (Welf. & Inst. Code, § 300, subds. (d), (j).) The petition also alleged Father had a pattern of past criminal conduct that put the minor at risk of physical harm and being left without a care provider. (§ 300, subd. (b).)
All statutory references are to the Welfare and Institutions Code.
The detention and jurisdictional reports stated that R. had told family members that Father, who lived in the same home as R., the minor, and Mother, had molested her. During an initial interview at her school, R. told investigators that when Mother was away from home, she and Father laid on the family bed together without clothing and Father touched her genitals. Father had told her to keep these sessions "secret," and R. said Mother " 'gets mad if I tell people about it.' "
In a subsequent interview at the family home in the presence of a sheriff's deputy, R. said Father had put something from a bottle onto his fingers and then inserted his fingers into her vagina. She described the bottle as white in color with a heart on the label. A light pink bottle of lotion with a heart on the label was later found in the family home. R. also said Father had placed his penis into her vagina, which was painful to her, and said she had seen " 'white stuff' " emitted from Father's penis onto her groin. She described an erection when asked about the appearance of Father's penis.
Mother told an Agency social worker R. had acted out sexually, which Mother attributed to molestation by a stepbrother while R. was staying with her father in Texas. Mother's aunt confirmed R. had engaged in sexualized play with her own son, who told the aunt, " '[R.]'s trying to do sex with me. She said let's do sex.' " The aunt also told investigators that R. had reported the molestation to Mother over a year earlier and had told her friends at school about it around the time the investigation began.
On the basis of R.'s account, the minor was detained and placed temporarily with Mother's sister. The Agency was initially unable to locate Father. On the day of the minor's detention, the sheriff's office had arranged for Mother to make a pretextual call to him. During the call, Father appeared already to be aware of the investigation and reacted in a defiant manner, pledging not to cooperate. When the sheriff's office was unable to contact Father thereafter, it concluded he was avoiding investigators. By the time a jurisdictional hearing was held in July 2015, at which the allegations of molestation were found true, Father still had not been located. After the hearing, the minor was returned to Mother's custody.
Father eventually surfaced in August 2015. At his request, the jurisdictional allegations with respect to the minor were vacated, and a contested jurisdictional hearing with respect to those allegations was held the following November.
At the hearing, the jurisdictional report was admitted subject to hearsay objections by Father under section 355. The report described Father's criminal history, which included a conviction for false imprisonment, an arrest for domestic violence, and a conviction for threatening a witness, and referred to R.'s interview with the social worker, in which she disclosed Father's molestation. R. did not testify at the hearing, having been found unable to distinguish truth and falsity. Further, the juvenile court excluded a transcript of R.'s interview at her home because the transcript constituted hearsay that had not been included in an Agency report.
During an examination in chambers, R. repeatedly refused to discuss "important" matters. In response to voir dire intended to establish her competence, R. was uncooperative, causing the court to conclude she might not understand "the difference between a truth and a lie" and was not competent to testify.
A social worker testified about her interviews with R. The social worker was permitted to offer an expert opinion that R. was being truthful when speaking about the sexual abuse, although R. said other things that were clearly fanciful. When she spoke about the sexual abuse, the social worker explained, R. "never wavered" and discussed aspects of sexuality a six year old ordinarily would not know without direct exposure, such as ejaculation and Father's use of a lubricant.
Father presented testimony by the nurse who examined R. for signs of molestation after the allegations emerged. The nurse concluded the exam was normal and could neither confirm nor refute the possibility of molestation. R.'s elementary school teacher at the relevant time testified that R. had never mentioned sexual abuse to her. A therapist who was treating R. also testified R. had never reported inappropriate sexual conduct by Father, although the therapist effectively qualified that testimony by observing R. was "generally . . . very shut down" in therapy, did not like to talk about past experiences, and did not trust adults enough to speak with them about her concerns. Both Mother and R.'s older sister also testified R. never mentioned abuse by Father. Mother also denied leaving R. alone with Father on a frequent basis.
The juvenile court found R.'s hearsay description of Father's molestation to be corroborated by her knowledge of aspects of sexuality, unusual in a child of her age, and her sexualized play. The court sustained the jurisdictional allegations under section 300, subdivisions (d) and (j), on the basis of this testimony. In addition, the court sustained the allegations under section 300, subdivision (b), on the basis of Father's criminal record. The court thereafter denied reunification services to Father.
II. DISCUSSION
Father contends the jurisdictional allegations were not supported by admissible evidence and the juvenile court erred in denying him reunification services. A. Jurisdictional Allegations
We affirm jurisdictional findings if they are supported by substantial evidence. (In re James R. (2009) 176 Cal.App.4th 129, 134-135.) " ' "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." ' " (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)
Under section 355, the juvenile court is permitted to consider at a jurisdictional hearing "[a]ny legally admissible evidence," which the statute expressly defines to include hearsay statements in an agency jurisdictional or dispositional report. (Id., subds. (a), (b).) Under subdivision (c), however, such hearsay evidence ordinarily is not, standing alone, sufficient to support a finding of jurisdiction if, as here, a timely objection is made to specific hearsay statements in the report. (See In re Cindy L. (1997) 17 Cal.4th 15, 21 (Cindy L.).)
While section 355, subdivision (c) does allow hearsay evidence to constitute the sole evidence supporting jurisdiction under certain circumstances, the Agency concedes these provisions are inapplicable here, and the juvenile court did not purport to base its decision entirely on R.'s statements.
Notwithstanding section 355, subdivision (c), a proper objection to hearsay in an agency report does not render the hearsay inadmissible at a jurisdictional hearing. Rather, "the objection mean[s] that uncorroborated, the hearsay statements [cannot] constitute substantial evidence and could not be used as the exclusive basis for finding jurisdiction under section 300." (In re B.D. (2007) 156 Cal.App.4th 975, 984.) When, as here, a juvenile court relies on hearsay in an agency report to support jurisdictional allegations, " 'The question . . . is whether there was corroborating evidence in th[e] record which could support the witnesses' hearsay statements sufficiently to sustain a jurisdictional finding. Corroborating evidence is "[e]vidence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point." [Citation.] In [the dependency] context, corroborating evidence is that which supports a logical and reasonable inference that the act described in the hearsay statement occurred. [Citation.]' [Citation.] [¶] This standard is analogous to the rule in criminal law requiring independent corroborative proof of accomplice testimony. [Citation.] Thus with respect to dependency jurisdictional findings, corroborative evidence, whether direct or circumstantial, (1) is sufficient if it tends to connect the allegedly offending parent with the alleged negligent act even though it is slight and ' "entitled, when standing by itself, to but little consideration [citations], nor does it need to establish the precise facts" ' in the hearsay statements; (2) is sufficient if it tends to connect the allegedly offending parent with the alleged negligent act and the parent's ' "own statements and admissions, made in connection with other testimony, may afford corroboratory proof sufficient" ' to find jurisdiction; (3) need not ' "go so far as to establish by itself, and without the aid of the testimony of [the hearsay declarant], that the [allegedly offending parent] committed the [negligent act] charged" '; (4) may include the allegedly offending parent's ' "own testimony and inferences therefrom, as well as the inferences from the circumstances surrounding the entire transaction" '; and (5) may consist of '[f]alse or misleading statements to authorities . . . or as part of circumstances supportive of corroboration.' " (In re Christian P. (2012) 208 Cal.App.4th 437, 448.)
We find at least three corroborating circumstances. The first is the bottle of lotion. R. said Father placed a substance from a bottle, which she described with some particularity, on his fingers prior to inserting them in her vagina. A bottle of lotion matching the description was found in Mother's home. Because a six year old ordinarily would not know lubrication can be used to assist in vaginal penetration, R. had no reason to invent the use of the substance in the bottle. It is therefore unlikely to be a coincidence that R. identified a bottle containing lotion, which Father well might have used in these circumstances. The second corroborating factor was R.'s sexualized behavior, which would not be expected in a six year old, suggesting she had been exposed to molestation. Finally, there was Father's conduct when notified of the investigation. Rather than come forward and confront the charges in an effort to preserve his relationship with the minor, Father became unavailable, dodging the Agency's calls and failing to participate for months. As the Agency argues, evasive conduct has long been associated with a consciousness of guilt. (E.g., People v. Cage (2015) 62 Cal.4th 256, 285.)
Father downplays the significance of the bottle, arguing that the presence of a bottle of lotion in the house is not corroborating. As discussed in the text, this ignores that (1) the bottle matched R.'s description and (2) R. appeared to have no understanding of why the substance in the bottle was used. This suggests both that the abuse occurred and that it occurred in her home.
The juvenile court also found corroboration for R.'s hearsay statements in her knowledge of sexual practices, unusual for a child her age. We are hesitant to rely on this factor because corroborative evidence ordinarily must be found outside the hearsay evidence itself. (E.g., People v. Romero and Self (2015) 62 Cal.4th 1, 32.) While, as discussed below, R.'s precocious awareness makes her statement more reliable, it does not constitute evidence corroborating her statements.
When combined with this corroborative evidence, we find R.'s interviews to constitute substantial evidence to support the allegation under section 300, subdivision (j), which vests jurisdiction if a sibling of the child has been abused and there is a substantial risk that the minor will be abused.
Father argues none of this corroborative evidence connects him to the molestation. Father, however, appears to have been the only adult male with access to R. in her home, and he chose to avoid both the Agency and sheriff's deputies as soon as he learned that allegations of molestation had been made. This is sufficient to corroborate his role in the sexual abuse.
Father also argues the hearsay in the agency report should not have been admitted in the jurisdictional hearing because the statements were not made by the minor, who was the subject of the jurisdictional hearing. The argument appears to be based on a claimed ambiguity in the language of section 355, subdivision (b), which states that "[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)." Father argues the phrase "to the extent allowed by subdivisions (c) and (d)" modifies both the phrases "is admissible" and "constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based." Because section 355, subdivision (c) mentions only hearsay statements made by the minor who is the subject of the hearing, he argues, R.'s statements were inadmissible in a jurisdictional hearing regarding the minor.
We have liberally construed Father's argument on this issue, which actually appears to confuse the concepts of admissibility and substantiality. Further reflecting this confusion, Father claims in his reply brief the Agency conceded that R.'s statements were inadmissible, although the Agency conceded only that the statements, while admissible, could not constitute the sole support for the jurisdictional finding.
In interpreting a statute, " ' " 'we strive to ascertain and effectuate the Legislature's intent.' " [Citations.] "Because statutory language 'generally provide[s] the most reliable indicator' of that intent [citations], we turn to the words themselves, giving them their 'usual and ordinary meanings' and construing them in context [citation]." [Citation.] If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs.' " (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708-709.)
While grammatically plausible, Father's reading of section 355, subdivision (b) fails to take account of the statutory context, that is, the language of subdivisions (c) and (d). These provisions do not address admissibility at all, which suggests they were not intended to modify the phrase "is admissible." Subdivision (c) describes the circumstances under which hearsay in an agency report can constitute the sole evidence in support of a jurisdictional hearing, limiting those circumstances, as relevant here, to hearsay by a declarant under 12 years of age who is the subject of the jurisdictional hearing. (§ 355, subd. (c)(1)(B).) Subdivision (d) states section 355 "shall not be construed to limit the right of a party to the jurisdictional hearing to subpoena a witness whose statement is contained in the social study or to introduce admissible evidence relevant to the weight of the hearsay evidence or the credibility of the hearsay declarant." Because neither of these subdivisions addresses in any manner the admissibility of hearsay evidence contained in an agency report, there is no reason to interpret subdivision (b) to mean that the admissibility of such hearsay statements is affected by subdivisions (c) and (d). Rather, the most appropriate interpretation is that "[a] social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible," and the hearsay in the report "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)." This is the interpretation adopted by the Supreme Court in In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.), which held "the most reasonable way to read section 355 is to read subdivision (b) as qualifying subdivision (a), so that 'legally admissible evidence' includes 'hearsay evidence contained in' a 'social study.' Furthermore, although subdivisions (c) and (d) limit the extent to which such social study hearsay evidence can be relied on exclusively, there is no limitation, except for fraud, deceit, or undue influence, on the admission of hearsay evidence." (Id. at p. 1243, italics added, fn. omitted.)
Father also argues R.'s statements fail the due process test of reliability, which was imposed by Lucero L. for hearsay statements of a child who, like R., is "disqualified as a witness because of the lack of capacity to distinguish between truth and falsehood at the time of testifying." (Lucero L., supra, 22 Cal.4th at pp. 1247-1248.) It is not wholly clear the reliability test applies when a minor's hearsay statements are corroborated, since Lucero L. was interpreting the sole support provisions of section 355, subdivision (c)(1). We need not address that issue because we find R.'s statements to contain adequate indicia of reliability. As the Supreme Court held in Cindy L., supra, 17 Cal.4th 15: "The nonexhaustive list of factors that the United States Supreme Court has cited as relevant to the reliability of hearsay statements made by child witnesses in sexual abuse cases are (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate." (Id. at pp. 29-30.) Here, there was evidence in the record that R. had told others of the abuse, apparently spontaneously, prior to being questioned at school. There was no evidence of any motive for R. to fabricate the story, such as a conflict with Father. Most persuasively, R. manifested a knowledge of sexual specifics that would not be expected from a child her age, such as the appearance of an erection and ejaculation, the pain of vaginal penetration, and the use of lubricant. We also find support in the expert opinion of the social worker that she found R.'s testimony to be reliable, in part on the basis of R.'s conduct during the interview at her home.
Although Mother denied any previous knowledge of R.'s molestation, Mother's aunt told investigators that R. had told Mother and other family members about the molestation well before the filing of this proceeding. According to the same aunt, R. also told friends at school.
Father speculates that R. could have learned this information from pornography or direct observation of sexual conduct, but there is no evidence in the record of her exposure to pornography or sexual conduct. On the contrary, Mother said R. had never seen her own sexual relations with Father or been exposed to pornography.
Father argues R. was unreliable because she had been treated in the past for psychiatric symptoms, labeling her a "disturbed little girl." No evidence in the record, however, connects any of R.'s symptoms or conditions to the fabrication of false accusations of sexual molestation. Father also emphasizes the juvenile court's conclusion that R. could not distinguish truth and falsity, arguing her statements were inherently unreliable for this reason. As noted above, however, the sexual content of R.'s statements suggest they are reliable precisely because it is unlikely R. could have invented them in the absence of direct experience. Further, given her reference to the bottle of lotion, it is likely that experience came at home.
Finally, Father argues there was insufficient evidence to find the minor was at risk of molestation merely because R. had been abused, arguing section 300, subdivision (j) directs the juvenile court to "consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child," in addition to the abuse of the sibling. In general, however, "[c]ases 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." (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968 [citing cases].) "[A]berrant sexual behavior directed at one child in the household places other children in the household at risk." (Id. at p. 970.) To the extent additional factors were required here, they are present in the minor's youth and gender. There was nothing unique about R. or the circumstances of her molestation to suggest Father would refrain from sexual abuse of the minor.
Father also argues the juvenile court erred, for various reasons, in finding true the jurisdictional allegations under section 300, subdivisions (b) and (d). We decline to address the juvenile court's reasoning with respect to these subdivisions because, for the reasons discussed above, we find jurisdiction adequately demonstrated under subdivision (j). A finding of jurisdiction under a single subdivision of section 300 is sufficient to support the assertion of dependency jurisdiction. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491-1492.) "[A]n appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence." (Id. at p. 1492.) While we have the discretion to address the other jurisdictional allegations (In re D.C. (2011) 195 Cal.App.4th 1010, 1015), Father has not stated any compelling grounds for doing so here. B. Denial of Reunification Services
Father contends the juvenile court erred in denying him reunification services. The argument is premised entirely on the juvenile court's claimed error in "bypassing" reunification services under section 361.5, subdivision (b). An alternative ground for denying reunification services cited by the juvenile court, however, was Mother's retention of custody of the minor. As explained in In re Pedro Z. (2010) 190 Cal.App.4th 12, when a dependent minor remains in the custody of a previously custodial parent, reunification services to a noncustodial parent are not required, or even available. Instead, the child is the subject of family maintenance services provided under section 362, subdivision (b). (Pedro Z., at pp. 19-21.) The juvenile court cited this principle in its dispositional order, stating Father was not provided services "because the child has been placed with the prior custodial parent under a plan of [family maintenance]." Although the juvenile court clearly cited this basis for denying services and the Agency argued the point in its respondent's brief, Father did not address this issue in either his opening or reply briefs. We therefore take the point to be conceded, and it is unnecessary for us to review the juvenile court's denial of reunification services under section 361.5, subdivision (b).
III. DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.