Opinion
F071702 F072102
04-07-2016
In re M.C. et al., Persons Coming Under the Juvenile Court Law. MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Appellant, v. IRENE C. et al., Defendants and Respondents. In re M.C. et al., Persons Coming Under the Juvenile Court Law. MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. IRENE C., Defendant and Appellant.
Regina A. Garza, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Appellant and for Plaintiff and Respondent Madera County Department of Social Services. Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant and for Defendant and Respondent Irene C. Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Respondent Manuel C.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. MJP017442 & MJP017443)
OPINION
APPEAL from orders of the Superior Court of Madera County. Thomas L. Bender, Judge. Regina A. Garza, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Appellant and for Plaintiff and Respondent Madera County Department of Social Services. Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant and for Defendant and Respondent Irene C. Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and Respondent Manuel C.
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INTRODUCTION
The juvenile court found true an allegation Manuel C. (father) molested his daughter, M.C. The court found true an allegation M.C.'s younger sister, K.C., was at risk because M.C. had been molested. The court did not find true an allegation Irene C. (mother) knew or should have known about the molestation of M.C. The parents did not contest the juvenile court's findings concerning M.C. or her placement out of their custody. M.C. is now an adult and is not involved in this appeal.
At the conclusion of the disposition hearing, the juvenile court placed K.C. with the parents under a plan of family maintenance services. The Madera County Department of Social Services (department) appealed the juvenile court's order, asserting the court erred by finding not true the allegation mother knew or should have known of the molestation. Mother filed a separate appeal contending the juvenile court's jurisdictional dispositional orders that father molested M.C. are not supported by substantial evidence, are supported only by hearsay evidence, and should be dismissed.
The department further contends the juvenile court's finding K.C. was at risk because of her sister's molestation was inconsistent with the court's placement of K.C. in her parent's custody. Mother also challenges the juvenile court's finding K.C. was at risk because M.C. was molested, asserting there was insufficient evidence to support the juvenile court's finding M.C. was molested. Mother finally argues the family maintenance plan was inadequate because it provided no services to parents and only included the admonition for the parents not to molest K.C. or to allow her to be molested. After consideration of all matters raised by the parties, we do not find error and affirm the orders of the juvenile court.
The department's appeal in case No. F071702 was filed prior to the end of the disposition hearing, which was heard over the course of two dates. The parents requested dismissal of the department's appeal for being filed prematurely. Mother filed her own timely appeal in case No. F072102. After seeking briefing from the parties, we denied the parents' request to dismiss the department's appeal and deemed it timely filed pursuant to California Rules of Court, rule 8.406(d). On our own motion and after briefing from the parties, we consolidated both appeals, designating case No. F071702 as the lead appeal.
PROCEDURAL AND FACTUAL BACKGROUND
Detention of Minors
On November 22, 2014, the department received a referral that father had been sexually touching M.C. when she was between the ages of six and 14. M.C. reported the alleged abuse to school staff and her family. During a team decision staff meeting two days later, father denied the allegations and did not understand why M.C. made them. Mother explained she and two adult children supported father, and she did not believe father ever molested M.C.
On November 25, 2014, the department filed a petition pursuant to Welfare and Institutions Code section 300 charging two allegations under subdivision (d): father sexually molested M.C. (d-1 allegation), and mother failed to protect M.C. from abuse mother knew or should have known was occurring (d-2 allegation). The petition further alleged K.C. was M.C.'s sibling and was at substantial risk of being abused or neglected because of M.C.'s sexual abuse pursuant to section 300, subdivision (j) allegation). At the time the petition was filed, K.C. was nearly 14 years old and M.C. was 17 years old, about half a year from her 18th birthday. On November 26, 2014, the juvenile court found a prima facie showing the minors were described by section 300 and ordered their detention.
Unless otherwise designated, statutory references are to the Welfare and Institutions Code.
On December 15, 2014, the department filed an amended petition that added details concerning father's alleged sexual abuse of M.C. and details of M.C.'s sexualized behaviors. The parents denied the amended allegations on December 18, 2015.
Jurisdiction Proceedings
A detention/jurisdiction report was filed by the department prior to a hearing on December 18, 2014. The department noted neither parent had any documented child welfare history. The children were adopted. On November 11, 2014, Madera County Sheriff's Deputy Benjamin Kirchert was dispatched to investigate a juvenile who was refusing to get into her parents' vehicle. M.C. told Kirchert she had been molested in the past by father, and she wrote an account of her allegations. M.C. wrote that father orally copulated her, asked her to "help him feel good," had M.C. orally copulate him, told her to kiss him, and grabbed M.C.'s breast when she did not kiss him. In the note, M.C. pled to keep her sister safe.
K.C. told social workers after her detention that she wanted to remain in the same home as her sister. M.C. told sheriff's investigators father had touched her until three years earlier. She said father also inserted his finger into her vagina. M.C. said this sexual conduct began when she was five or six years old. K.C. told M.C. that nothing like this ever happened to her.
Mother told investigators she did not believe M.C. because father's penis was very small and shriveled and he could not do anything with mother. Mother explained father had this problem for 15 years and M.C. had only lived with them for 13 years. Mother said she had caught M.C. six months earlier "sexting" boys, sending texts that she would spread her legs apart for the boys.
An addendum report was filed in late January 2015. M.C. and K.C. were questioned. The addendum report included questioning of M.C. by sheriff's investigators, the child forensic interview team. It also included a handwritten note from M.C. to investigators stating father had her suck his penis and he sucked her breasts. M.C. stated she wanted her sister safe.
M.C. told investigators father's sexual abuse of her began when she was five or six years old and continued until she was a freshman in high school when she was 14 or 15 years old. M.C. could not remember exactly when the abuse began, but father would touch her breasts and vagina. He would begin by placing his hand on her vagina under her clothes. Father would also get on top of M.C. and "hump" her buttocks over her clothes while she was lying on the ground. Father would always touch M.C.'s breasts after touching her vagina.
M.C. reported the molestation usually occurred in her bedroom or father's bedroom. Once when M.C. was 10, father proceeded to "do his business" in a shed behind the house. M.C., who had difficulty using the word penis, wrote down the word on a piece of paper as she was telling investigators about father's molestation of her. During the shed incident, M.C. felt father's penis rubbing on her buttocks. On another occasion, father kissed M.C. as she was sitting at the computer. Father also would want to hug M.C., but would touch her on her vagina and breasts instead. Father would sometimes have M.C. move his penis up and down or make her suck on it. This happened three or four times.
K.C. told an investigator nothing bad had happened to her at home and she had not seen anything bad happen. K.C. said M.C. would sometimes get in trouble at home, get overly dramatic, and lock herself in her room. M.C. would also get into trouble for being on the Internet at midnight when she was supposed to be sleeping. When they were younger, the sisters would share a room, but they had separate rooms for the past three years. K.C. thought M.C. had a boyfriend who was 18 years old.
A contested jurisdiction hearing was continued until March 16, 2015, took place over multiple sessions, and was not concluded until April 17, 2015. The social workers' reports were admitted into evidence. Father's counsel objected to their admission on hearsay grounds. His objection was overruled by the juvenile court. The other parties did not object to the admission of the social workers' reports. Veronica Reyes worked with the department as a follow-up social worker on the case. Based on 15 years of experience as a social worker, Reyes had the opinion that based on M.C. being the victim of child abuse by father, K.C. was at substantial risk for such abuse. Also, if sexually abused, K.C. would suffer severe emotional damage. Mother's response to M.C.'s report of sexual abuse was to take M.C. to an adult daughter and not report it to law enforcement. Reyes thought this was evidence mother could not protect K.C.
Reyes noted K.C. appeared very bonded and attached with her parents, but it was "concerning that she doesn't believe her sister." Reyes did not believe there were ways to protect K.C. without removing her from her parents' custody. Reyes was further concerned mother did not believe M.C.'s account of abuse. Mother described M.C. as an out-of-control, rebellious child who made up the allegations. Reyes acknowledged M.C. reported the alleged molestation stopped when she turned 14 years old, K.C.'s age at the time of the hearing.
K.C. testified she had never felt unsafe in her parents' home and denied being abused by either parent. K.C. also stated she had never seen her sister abused by father. K.C. described her relationship with M.C. as close. K.C. shared a room with M.C. until she was 11 years old and M.C. was 14 years old. K.C. and M.C. would go to bed at the same time; M.C. would go to sleep and K.C. would watch television in their shared room. K.C. never saw father in the room by M.C.'s bed when K.C. was in the room. K.C. described M.C.'s relationship with their parents as good. K.C. wanted to go home with her parents and felt safe there. If K.C. was returned to her home and experienced any abuse by father, she was brave enough to report it to mother. According to K.C., M.C. confided her allegations concerning father's molestation about a year and a half prior to the hearing, but K.C. did not believe M.C.
Mother described her relationship and father's relationship with both daughters as good. The girls were under the parents' foster care from the time they were very young until the parents eventually adopted them. The parents had been foster parents for nearly 20 years. M.C. never told mother she had been molested by father. Mother never suspected father had molested M.C. Mother had training and experience as a foster parent, knew the signs of sexual abuse, never saw M.C. display any of these, and observed nothing to lead her to believe M.C. had been sexually abused.
Mother once found M.C. under the covers of her bed late at night whispering on her phone. Mother retrieved the phone and found "very explicit sexual stuff" on M.C.'s phone. Mother disciplined M.C. by taking away her phone. In her training, mother learned the person being abused does not want to be around the abuser. This was not the case with M.C. and father. M.C. relied on father for many things such as driving her to school. M.C. recently undertook a project to do five nice things for a parent and chose father.
Mother and father were at home most of the day. Mother was at home during evenings unless she was taking the girls to practices or youth groups. There were always other people living with mother and father. When the girls were younger, there were other foster children living with them. Four years previous to the hearing, an adult child of the parents moved back with them. M.C. only had her own room until two or three years prior to the hearing. About the time M.C. made the allegations against father, mother believed M.C. was planning to leave the home.
Mother explained that for 25 years, father has had a debilitating disease called dermatomyositis, a muscle disease she described as similar to Lou Gehrig's disease. Father has been wearing diapers for 20 or 25 years. He urinates on himself and soils his pants. After this happened, father did not try to compensate by having other forms of sexual intimacy. The last time mother was sexually involved with father was 15 or more years ago. Mother explained father was unable to be involved in sexual relationships. This was another reason mother did not suspect father was molesting M.C. Father spent several years in a wheelchair. Father was able to walk into the courtroom. He occasionally uses a cane. At times, father helps with household cleaning and cooks. Father can feed himself and brush his teeth. Father can chew and his tongue works normally. Father had several surgeries to his genital area and penis.
Mother had also worked for a private foster agency. She had training on sexual abuse as part of her job that included signs and symptoms of children who have been sexually abused. Mother was aware of warning signs of abuse such as children cutting themselves, having angry outbursts, sexualized behavior such as sexting, premature interest in sex, low self-esteem, depression, and not wanting to go to school.
At the conclusion of the proceedings the juvenile court found true the allegation M.C. had been sexually abused by father pursuant to section 300, subdivision (d) and that, as M.C.'s sibling, K.C. was at risk of abuse pursuant to section 300, subdivision (j). The court did not find true, however, the allegation mother knew or should have known of the abuse pursuant to section 300, subdivision (d).
Disposition Proceedings
The social workers' disposition report was prepared in May 2015. The report noted M.C. was hostile toward her family because they did not believe she had been sexually abused by father, and she did not want to be returned to the parents' custody. K.C. wanted to be returned to her family and did not believe M.C.'s allegations. The department recommended neither child be returned to the parents' custody because father still resided in the family home, mother did not believe the allegations of sexual abuse, and there was no safety plan allowing the children to safely return to the home.
Mother had visitations with K.C., was affectionate toward her, and mother's affection was welcomed by K.C. The department found a significant bond between mother and K.C. The department noted M.C. could be adopted by her current caregiver. Due to the strong sibling relationship, the department stated the plan for K.C. could also be adoption by M.C.'s caregiver.
The department concluded there was substantial risk for sexual abuse of K.C. and further services to father should be denied. The department did not believe mother could protect K.C. from father and there was a substantial risk of K.C. being sexually abused. The department recommended the remaining allegations be sustained, the children found dependents of the juvenile court, father be bypassed for reunification services, and reunification services be provided to mother for both children.
The disposition hearing commenced on May 20, 2015, and was continued over two more sessions on June 3 and June 23, 2015. At the beginning of the hearing on May 20, 2015, the parents waived reunification services for M.C. and the court set M.C.'s case for further proceedings.
Social worker Beverly Webb testified she had training in victim services. She also had extensive training in domestic violence and sexual abuse trauma, including child sexual abuse. Webb had been assigned to this case since March 2015 and was familiar with the case and the family. Webb observed visitations between mother and K.C.
Webb believed based on her evaluation and review of the case that K.C.'s health, safety, and physical and emotional well-being were in substantial danger if she were to be returned to the parents' home. Because mother did not believe abuse occurred and had not received sexual abuse counseling, Webb believed the family was in a state of denial. For Webb, this placed K.C. at great risk because if she were abused, mother would not have the ability to protect her. Webb did not think it would be in K.C.'s best interest for father to be given reunification services.
Based on her contacts and conversations with K.C., Webb did not believe she had been abused. Webb said the department did not consider a safety plan for K.C. because it did not believe it would be in K.C.'s best interest to be with her parents. Webb explained she thought K.C. was intelligent enough to understand the difference between right and wrong touching.
Even so, based on her training and experience Webb explained when one has the capacity to understand the difference between right and wrong touching it does not mean that person has the capacity to report it. Webb was concerned K.C. was not mature enough to be able to stop bad touching or to report it. Webb elaborated that K.C. had just started counseling and needed to learn the tools to understand what she is experiencing and feeling. Webb stated a safety plan could be set in place to permit reunification "in the near future." Elaborating on this point, Webb said after K.C. and mother receive the counseling they need, and acquired the tools to recognize sexual abuse and the signs to look for, reunification was possible.
K.C. testified she was 14 years old at the time of the hearing and father had never touched her in an inappropriate way that made her feel uncomfortable. K.C. said she felt safe at home and would not hesitate to tell someone about inappropriate touching even if it meant her father would go to jail. She also believed mother would protect her. K.C. had been to one or two counseling appointments and other appointments were scheduled. K.C. wanted to go back home to her parents.
Mother was in agreement with the department's recommendation to provide her with reunification services. Mother does not work outside of the home and is there most of the time. She also has an adult child living at the home. If K.C. was placed back in the home on a plan of family maintenance, mother was willing to participate in the services recommended by the department. K.C. would be sleeping in her own room if returned to mother's custody and that room has a lock on the door. As for a safety plan, mother explained K.C. was in school from 8:00 a.m. until 3:00 p.m. The adult daughter is home after 2:00 p.m. Mother does her errands and schedules her doctor appointments for the morning.
K.C.'s attorney argued K.C. felt safe at home. Counsel also argued a safety plan could be made and services offered to both parents. K.C.'s attorney argued K.C. wanted to reunify with both her parents and "would not feel good" if she could not do so. Counsel believed K.C. could be kept in the home with an adequate safety plan. The court continued the matter until June 3, 2015, and ordered the department to prepare a safety plan.
Addendum Report
The department filed an addendum report to address a safety plan for the return of K.C. to the parents' home. Inspecting K.C.'s bedroom, the social worker noted an ear-piercing alarm had been installed and the door could only be unlocked from inside the room. The adult sister would be sleeping with K.C. at night. Mother's bedroom was directly across from K.C.'s room. Both parents agreed to attend mental health counseling and a sexual assault education program. The parents agreed that once they and K.C. had completed sexual assault counseling, a recommendation from each therapist would be submitted to the department and there would be reconsideration of returning K.C. to the parents' custody.
The parents were both referred to a medical health provider for mental health counseling to address the sexual assault allegation. They were each scheduled for appointments within two weeks of the hearing on June 3, 2015. The department recommended K.C. remain a dependent with family reunification services offered to the parents. Hearing on June 3 , 2015
At the continued disposition hearing on June 3, 2015, the juvenile court noted it did not believe there was clear and convincing evidence K.C. was in substantial danger to her health or safety or she suffers from severe emotional damage. The court did not believe there was clear and convincing evidence to remove K.C. from the home. The court found K.C. a dependent of the court and ordered family maintenance services. The court ordered a further case plan from the department.
Updated Case Plan
The department prepared an updated case plan. The noted service objectives set forth in the department's proposed plan were for: (1) mother not to permit others to sexually abuse K.C., (2) father not to sexually abuse K.C., (3) K.C. to regularly attend school with only excused absences, and (4) K.C. to attend mental health counseling to address the issues relating to being placed in foster care. Also, the parents were to ensure K.C. maintained contact with M.C. at least once a month by telephone or face to face, and for K.C. to be able to see M.C. or to call her at K.C.'s discretion.
Both parents and K.C. would be referred to community services as requested by them. The social worker was to conduct monthly face-to-face contact with K.C. to ensure her medical, educational, and emotional needs were being met. The social worker was to also have monthly face-to-face contact with the parents to review, discuss, and assess case plan compliance to ensure the permanency, safety, and well-being of K.C. The parents signed the case plan, agreeing they participated in the case plan development and agreed to participate in the services outlined in the plan. Hearing on June 23 , 2015
At the conclusion of the disposition hearing, counsel for both parents, K.C., and the department submitted the matter without objection based on the department's updated case plan. The juvenile court accepted the case plan as evidence, adopted its recommended findings and orders, and set the case for a family maintenance review hearing.
DISCUSSION
I. Juvenile Court's Jurisdictional Findings
A. Introduction
The department contends there was insufficient evidence to support the juvenile court's jurisdictional finding rejecting the d-2 allegation that mother knew or should have known of father's sexual abuse of M.C. Father argues the department was not aggrieved on this ground because the juvenile court found an alternative basis for jurisdiction over M.C. Mother contends there was insufficient evidence to support the juvenile court's findings father sexually abused M.C. and this abuse posed a risk to the health, safety, and emotional well-being of K.C as set forth in the d-1 allegation. We reject these allegations and the related contention by father.
B. Standard of Review
The issue of sufficiency of the evidence in dependency cases is governed by the same standards applied to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. Substantial evidence is evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could make the appropriate finding. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Angelia P. (1981) 28 Cal.3d 908, 924.) The reviewing court does not reweigh evidence or resolve evidentiary conflicts; instead, it draws all reasonable inferences in support of the juvenile court's findings, considering the record in the light most favorable to the juvenile court's order. The appellant bears the burden of showing the juvenile court's findings and orders are not supported by substantial evidence. (In re I.J., supra, at p. 773; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
C. Department's Appeal
(1) Father's Contention
Father responds to the department's appeal arguing the department is not aggrieved by the juvenile court's rejection of the d-2 allegation directed at mother because the court found an alternative basis for jurisdiction over M.C. Mother joins this argument. For jurisdictional purposes, it is generally irrelevant which parent created the circumstances leading to a dependency action. A jurisdictional finding as to the conduct of one parent is not necessary for the court to enter orders binding on that parent after dependency jurisdiction has been established. It is commonly stated that a jurisdictional finding involving one parent is good as to both. An appellate court may, therefore, decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492; see In re Alexis E. (2009) 171 Cal.App.4th 438, 451; see also In re Joshua G. (2005) 129 Cal.App.4th 189, 202.)
Although we may decline to address evidentiary support for an allegation for one parent where there is sufficient evidence to support one or more allegations as to another parent, we are not mandated to do so. The issues raised by the parties on appeal both go to the weight and substantiality of the evidence for the d-2 allegation (by department) and the d-1 allegation (by mother). In effect, there is an appeal and a cross-appeal involving appellate issues with the same intertwined facts and parallel challenges to the juvenile court's jurisdiction. Under these circumstances, we decline father's invitation to dismiss the department's appeal and reach the merits of the department's contention.
(2) Juvenile Court's Dismissal of d-2 Allegation
The gravamen of the department's argument is that mother's testimony was equivocal and she should have realized M.C.'s emotional outbursts and sexualized behavior and premature interest in sex were signs of abuse. The evidentiary presentations at the jurisdiction and disposition hearings did not involve any direct or circumstantial evidence that mother knew, or should have known, M.C. was being molested by father. M.C. did not tell investigators her mother ever witnessed molestation. Mother consistently denied all knowledge of any inappropriate conduct by father toward M.C., and testified to this effect at the hearings. Although mother noticed M.C. was acting more sexually, mother's reports of this behavior were at a stage in M.C.'s adolescence when such conduct can naturally occur with minors who have never been molested. M.C. was 17 years old during most of the sexualized conduct noted by mother and was nearly 18 years old at the time of the jurisdiction hearing.
In our view, the department reargues each evidentiary point adduced at the dependency hearings, drawing inferences from the evidence different from those made by the juvenile court. In effect, the department seeks de novo review by an appellate court of the juvenile court's findings. The evidence in this case was conflicting and sometimes close. We defer to the juvenile court's findings of fact where they are supported by substantial evidence. The department has failed to persuade us there was such overwhelming evidence the mother knew or should have known of M.C.'s molestation that the juvenile court erred in dismissing the d-2 allegation. We reject this contention.
D. Mother's Appeal
(1) Substantial Evidence of Molestation
Mother contends there was insufficient evidence father molested M.C. except for M.C.'s hearsay statements to investigators. Mother argues M.C.'s failure to testify at the hearings made the evidence against father inadmissible hearsay. There is no merit to these contentions because mother failed to object to the admission of social workers' reports as evidence. Social workers' reports are admissible evidence in dependency proceedings, and hearsay evidence in social workers' reports is subject to the child dependency exception to the hearsay rule.
We initially note the only objection to the admission of the social workers' reports at the beginning of the jurisdiction hearing was by father's attorney on hearsay grounds. Father's objection was only based on hearsay statements in the report; father did not argue the child dependency exception to the hearsay rule was inapplicable to this case. Mother and the other parties accepted the reports as evidence without objection. In order to preserve an evidentiary objection for appellate review, a party must make a timely objection to the trial court, or in this case to the juvenile court, to make clear the specific ground of the objection or motion. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 433-434; People v. Holmes (2012) 212 Cal.App.4th 431, 435-436.) Failure to make the evidentiary objection on the particular ground asserted as error on appeal makes that ground not cognizable for appellate review. The purpose for this procedure is to give the trial court the opportunity to correct any error in the proceedings. (People v. Partida, supra, at p. 434.) Here, mother failed to object to the introduction of social workers' reports on any ground.
Social workers' reports constitute evidence and can be used as the evidentiary basis for the juvenile court's jurisdictional determination as along as the social worker who prepared the report is available for cross-examination. (In re Stacy T. (1997) 52 Cal.App.4th 1415, 1422-1423.) The California Supreme Court has determined hearsay statements in social workers' reports are admissible. (In re Malinda S. (1990) 51 Cal.3d 368, 376-379.) Section 355 was amended by the Legislature to adopt this holding, but it rejected the holding in Malinda S. that hearsay alone is sufficient to support a jurisdictional finding. (In re M.B. (2011) 201 Cal.App.4th 1057, 1070.) Hearsay in a social worker's report is admissible to support an injunction in a dependency action. (Id. at pp. 1070-1072.) Hearsay evidence in a social worker's report is also admissible to support a juvenile court's findings at a 12-month review hearing. The language of section 281 broadly authorizes the juvenile court to receive social workers' reports in determining "'any matter involving the custody, status, or welfare of a minor ....'" (In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1572, italics added.)
The California Supreme Court has acknowledged that one underlying assumption in Malinda S. was the hearsay declarant would be available for cross-examination, and an exception to the hearsay rule is not valid unless the class of evidence proposed is inherently reliable. (In re Cindy L. (1997) 17 Cal.4th 15, 22, 27-28.) Evidence Code section 1360 sets forth three requirements for admission of out-of-court statements: (1) the court must find the time, content, and circumstances of the statement provide sufficient indicia of credibility; (2) the witness must either be available for cross-examination or there must be evidence that corroborates the statement; and (3) other interested parties must have notice of the public agency's intention to introduce the hearsay statement so as to contest it. (Cindy L., supra, at pp. 29-30.)
There is nothing in the instant record to indicate M.C. was unavailable or unwilling to testify. The record fails to show any party, including mother and father, subpoenaed or sought to cross-examine M.C. Although father objected to the social workers' reports as hearsay, he did not object to any specific statement by M.C. or assert the child dependency exception to the hearsay rule should not apply to this case. Mother lodged no objection to M.C.'s statements to social workers and law enforcement on any basis. M.C.'s hearsay statements as set forth in the social worker's reports were admissible, and as far as mother is concerned, unchallenged during the jurisdiction or disposition hearings.
Mother sets forth lengthy arguments concerning her belief M.C.'s account of events was improbable and unbelievable. Mother's factual arguments rest on her assertion that father suffered from medical infirmities causing sexual impotency. These arguments are unpersuasive. M.C. did not allege father raped her or engaged in sexual intercourse. M.C. reported father rubbed against her bottom with his penis, but she never said his penis was erect when this happened. M.C.'s other allegations were that father had her masturbate him or engage in oral sex with his penis. M.C. also said father kissed her and touched her vagina and breasts. In her testimony, mother conceded that whatever father's disabilities were, his hands and tongue functioned normally. Thus, M.C.'s allegations of molestation by father are consistent with his physical abilities. There was substantial evidence to support the juvenile court's finding the d-1 allegation, that father sexually molested M.C., was true. We reject mother's contention.
(2) Returning K. C. to Parents' Custody
The department contends the juvenile court's return of K.C. to her parents' custody was inconsistent with its true finding as to the j-1 allegation that she was at risk from her parents because of father's molestation of M.C. The department insists that legally, K.C. had to be removed from her parents' care. Mother further contends there was insufficient evidence to support the j-1 finding by the juvenile court. The record does not support either party's position.
Juvenile courts have broad powers in dependency cases. When a child is adjudged a dependent under section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child. The law should be liberally construed to carry out these purposes. The juvenile court's determinations will not be reversed absent a clear abuse of discretion. (In re Corrine W. (2009) 45 Cal.4th 522, 532.) When two or more inferences can be reasonably deduced from the facts, the reviewing court has no authority to substitute its decision for that of the juvenile court, and we will not disturb the juvenile court's decision unless it has exceeded the limits of legal discretion by being arbitrary, capricious or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Turning first to mother's contention, there was substantial evidence before the juvenile court that M.C. had been molested by father. Given the juvenile court's d-1 allegation finding as to M.C., the court would have been derelict in its duties to find no risk at all as to K.C. The purpose of the disposition proceedings was for the juvenile court to sort out the degree of that risk. Mother's argument is not supported by the record.
As with its earlier argument, the department seeks de novo review of the juvenile court's findings and rulings. The parents waived any argument at the disposition proceedings concerning M.C. and sought instead to regain custody of K.C. The entirety of the disposition hearings focused on whether father posed a threat to K.C. and whether a safety plan for K.C. could be devised. Father had apparently last molested M.C. three or more years earlier, after she turned 14 or 15 years old. K.C. was 14 years old at the time of the disposition hearings. Father's disease was debilitating and growing more so with time. K.C. denied father had ever molested her and she had a very good relationship with both parents.
Although the department did not recommend placement of K.C. with the parents, the testimony of K.C. and mother was overwhelmingly positive that father did not pose a current threat to K.C. Furthermore, at the disposition hearing the department conceded that with appropriate counseling, K.C. could be placed back with her parents with a safety plan. The court concluded it was in K.C.'s best interests to be placed back with her parents after the department prepared a safety plan. The safety plan included an operational panic button in K.C.'s bedroom. K.C.'s adult sister was going to sleep in the same room. K.C. was going to attend classes to learn about abuse and how to report it. K.C. told the court she was brave enough to report abuse should it occur and reiterated throughout her testimony in these proceedings that she wanted to live with her parents.
K.C. was not a young child at the time she testified. Given the facts before it, we will not second-guess the juvenile court's findings. The juvenile court ordered the implementation of the safety plan prior to permitting the parents to regain K.C.'s custody. In doing so, the juvenile court did not abuse its discretion or act in an arbitrary, capricious, or patently absurd manner.
II. Order for Family Maintenance Services
Mother finally contends the juvenile court's order for family maintenance services must be set aside and the case remanded for the court to order additional child welfare services for the parents. Mother argues she and father are entitled to further family maintenance services. We find serious flaws with this contention.
Mother failed to make any challenge to the department's proposed family maintenance services set forth in the addendum report or the updated case plan report. There was no objection by any party to the department's proposed family maintenance services at the final disposition hearing on June 23, 2015. In failing to raise an objection to the juvenile court concerning the adequacy of the proposed family maintenance services, mother has forfeited this point for appellate review. Dependency cases are not exempt from forfeiture of an issue for appellate review due to a party's failure to object to a matter before the juvenile court.
Application of forfeiture is not automatic because dependency proceedings involve the well-being of children. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Here, however, mother failed to bring this point to the juvenile court where it could have fashioned a different order for family maintenance services. Mother's challenge does not raise a discrete legal challenge lending itself to appellate review. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-885 [forfeiture not applied to challenged condition of probation in juvenile delinquency case].) The question of which additional services to add to the family maintenance plan, if any, is fact dependent and lies within the broad discretion of the juvenile court. The rule of forfeiture applies to this issue. (See In re Z.S. (2015) 235 Cal.App.4th 754, 771; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
Mother also fails in her appeal to explain what services she and father are entitled to or should have received after having K.C. returned to their custody. Mother simply argues the juvenile court should have ordered more services. We cannot decipher from mother's argument what further services the juvenile court should have ordered in addition to those set forth in the addendum report.
Finally, the juvenile court ordered family maintenance services that included counseling for K.C., regular face-to-face visits by the social worker with K.C., and a referral for further services as requested by the parents or K.C. A safety plan had been implemented prior to the final disposition hearing, and both parents had earlier agreed at the time the addendum report was filed to attend mental health counseling and a sexual assault education program. Also, the parents were entitled under the plan to referrals by the department for additional community services. Mother has failed to demonstrate how these family maintenance services were inadequate. This ground for appeal is rejected.
DISPOSITION
The findings and orders of the juvenile court are affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
KANE, Acting P.J. /s/_________
FRANSON, J.