Opinion
A149330
12-21-2017
In re T. K. et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. Nos. J163046 & J163046A)
The juvenile court found that appellant's sons, T.K. and S.K., came within its dependency jurisdiction due to appellant's sexual abuse of them and domestic violence in his relationship with his girlfriend. The court gave full legal and physical custody of the children to the mother, with whom appellant was engaged in a contested custody battle, denied appellant visitation and dismissed the petition. Appellant contends that the dependency petition should have been dismissed as inadequate at the outset of the proceedings; that the only evidence offered in support of the petition was a DVD recording of an interview with T.K., which was inadmissible and insufficiently reliable to constitute proof that the abuse occurred; that the evidence, if admissible, did not establish sexual abuse; that the trial court erred with respect to a number of evidentiary rulings; that appellant was entitled to enhancement services; and that the juvenile court erred in denying visitation and dismissing the petition. We affirm.
STATEMENT OF THE CASE AND FACTS
On February 11, 2016, the San Francisco Human Services Agency (Agency) filed a petition alleging that seven-year-old T.K. and three-year-old S.K. came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (d). As subsequently amended by the court, the petition alleged under subdivision (b) of section 300 that the children had suffered or were at substantial risk of suffering serious physical harm or illness in that appellant's ability to care for them was impaired by his involvement in a relationship with his girlfriend that was characterized by violence, T.K. having stated that appellant and his girlfriend "yell at and push and hit each other and that during a visit with the father, S.K. covered his ears because [appellant] and his girlfriend were shouting at each other." Under section 300, subdivision (d), it was alleged that on February 4, 2016, S.K. came home stating that appellant "pulled on his 'pee-pee' during his visits, and the child, [T.K.] said that [appellant] is doing this to him, too"; and that during an interview at the Child and Adolescent Support and Advocacy Resource Center (CASARC) on February 9, T.K. said that in December 2015, while appellant was changing T.K.'s pants in the parking lot before going to see Santa, "while standing next to the car, [appellant] pulled [T.K.'s] pants half way down, put his hand inside [T.K.'s] underwear, and squeezed and tugged his 'pee-pee' " and did the same thing to S.K., and that "if [appellant] does not stop touching his 'pee-pee,' he does not want to go to [appellant]'s house."
All dates referred to are in the year 2016 except as otherwise noted.
Further unspecified code references will be to the Welfare and Institutions Code unless otherwise specified.
According to the detention report, the mother contacted the Agency on February 4, stating that her sons had reported their father touching their penises. The mother said that after a visit with appellant the prior Saturday, S.K. told her appellant had touched his " 'pee-pee,' " it hurt, and he got upset and asked appellant not to do this. The mother ignored the report, thinking it could not be true, but after another visit on Tuesday, S.K. repeated the complaint. The mother asked S.K. how and why appellant was touching him and S.K. said that after school, at appellant's house, appellant gave him some new toys, then pulled down his pants and touched his penis. S.K. demonstrated "how his father was touching, rubbing and playing with his penis" and said his father told him not to talk about it to anyone. T.K. said appellant was doing this to him also, and that he had told the mother this but she had not done anything. The mother told T.K. that in the past he had said his father touched his privates when they were taking a shower, so she thought appellant was just cleaning him, and T.K. said it mostly happens in the shower but it happens "all the time." T.K. demonstrated how his father touched him as "rubbing," and the children said the touching continues despite their telling appellant not to do it and saying it hurts.
In an interview on February 5, the mother said that S.K. told her appellant "pulled on his pee-pee during an unsupervised visit" and T.K. also said appellant "pulled on his pee-pee and squeezed it on various occasions during unsupervised visits." T.K. told his mother that he had seen appellant "squeezing [S.K.'s] penis in the bath tub and pulling his penis in the back of his car on the way to see Santa Claus in December 2015 in the parking lot garage of a Nordstrom's."
The parents were involved in an ongoing custody battle; the mother currently had full custody of S.K. and "split" custody of T.K., and appellant was applying for more custody. The parents did not communicate and exchanged the children at a police station. There had been a domestic violence incident in 2009 in which appellant was charged with inflicting corporal punishment on a partner and the mother was issued a restraining order; criminal charges against appellant were dismissed and at the time of the present proceedings there was no active restraining order. The incident had resulted in a CPS referral and "substantiated" allegations of emotional abuse due to T.K. being present during the incident.
The mother reported that appellant had a past DUI (driving under the influence) and she believed he still had a drinking problem. The social worker found that appellant's criminal history reflected a DUI charge in 2003 that resulted in three months' probation, and a disorderly conduct charge in 1996 that was dismissed.
The mother reported that S.K. had been "potty trained" for some time but had regressed since beginning unsupervised visits with appellant and was having trouble sleeping every night. She said that T.K. was "having problems focusing at school, spaces out for long periods of time, does not listen, and says that 'no one likes him, and he has no friends.' " [T.K.] was seeing a therapist regularly, who told the PSW that the child had been brought to therapy because of problems with "worrying a lot, poor self-esteem, and saying things like, 'No one likes me'." S.K. had been in an infant parent therapy program. The principal of the children's school said there were no concerns about them.
The children were interviewed on February 9 at CASARC. DVD recordings of the boys' interviews were reviewed by the juvenile court, but only the recording of T.K.'s interview is part of the record on appeal. As demonstrated by that recording, T.K.'s interview began with the interviewer asking whether his mother told him why he was coming, to which T.K. replied, "she said that I'm going to talk to you about that my dad was touching my pee-pee." T.K. said that when he was going with his father to take pictures with Santa Claus at Nordstrom, his dad pulled his pants down half-way and started "touching my pee-pee." T.K. said his father wanted him to change his pants so he would look nice, and they were standing outside the car in the parking garage with S.K. in the car. Appellant "put his hand inside my underwear" and "he was playing with it, squeezing it and then he was like touching it." T.K. said his father did the same thing to S.K.
Appellant states in his opening brief that the recording of S.K.'s interview was "not produced."
T.K. said he had seen appellant squeezing S.K.'s "pee-pee" when appellant was putting on S.K.'s pajama bottoms, and that S.K. "was like, stop, stop and he was screaming," and his father gave S.K. a toy. He also saw appellant do this to S.K. in the bathtub, and when appellant was washing T.K. in the shower, he washed T.K.'s "private" and then "started playing with it." T.K. said that he showers himself at his mother's house but appellant always helps him shower even though T.K. says he does not like this.
T.K. told the interviewer he did not really like appellant's girlfriend because she and appellant fight, pushing and hitting each other, and he showed the interviewer how S.K. put his hands over his ears during the fighting because appellant and the girlfriend were screaming too loudly. He said appellant takes him to the Academy of Sciences "every day" and he does not like this because that is all they do. Asked if there was anything else he did not like when he went to appellant's house, T.K. said "last time when I didn't want to go inside the car because he was like pulling me, so he grabbed my neck like this [demonstrating] and he started like doing this to me into the car." He said he did not want to go in the car because he wanted to stay with his mother.
T.K. said he told his mother and his therapist about the touching. The therapist said she would tell appellant not to do it anymore and T.K. thought she did so because she said she would. He said he did not like it when appellant squeezed his "pee-pee," and it made him mad. Asked how he feels when he is at appellant's house, T.K. said "I don't really want to go there because he does those stuff." He seemed initially unsure or hesitant when asked how he would feel about visiting if his father stopped doing these things, then said "yeah, but if he does it again I don't want to go there."
Social Worker Jennifer Malcolm observed the interviews and in the detention report briefly related T.K.'s disclosure and statement that he did not want to go to his father's house because his father "continues to squeeze his penis." S.K. did not disclose any abuse during the interview, and neither child had any concerns about the mother's house. Malcolm spoke with T.K.'s therapist, Dr. Stephanie Smith, who said that T.K. had previously disclosed that he "did not like when his father 'washes him,' and that one time his father " 'had a rough time getting [him] into the car,' " but that she "did not have enough evidence to make a CPS report." Smith said that appellant had minimal contact with her and did not answer questions she tried to ask him about the "bath incident" that T.K. brought up in therapy. Smith had "weekly check-ins" with the mother, who took parenting advice from her "to help [T.K.] and his behavior." T.K. was doing well in therapy, working on "learning to focus, building his self-esteem issues, and managing his undisclosed worries, while working on building trust."
The car incident T.K. referred to in the interview was the subject of a CPS referral on January 8, 2016, that was investigated and deemed "inconclusive." It had been reported that appellant "choked" T.K. in the car. The detention report described T.K. as having stated during the CASARC interview that he was "grabbed by the neck by his father because he was crying for his mother and missed her and wanted to go and be with her." The report also stated that during the CASARC interview T.K. said he gets scared when he visits his father and that appellant and his girlfriend fight during visits.
Appellant denied the sexual abuse allegations and told Malcolm that the mother was coaching the children to say these things because it was nearing the end of the custody evaluation in the parents' custody case; he said, " 'this is a desperate ploy to keep the children away from me by the mother.' " Appellant said he thought the mother is "unstable" and had concerns about her household "when [S.K.] scratched the mother in her face," saying "the minor 'would not do that unless he is provoked.' "
Malcolm spoke with Dr. Seiff-Haron, the child custody evaluator appointed in the parents' family court case, who had worked with the family since June 2015. He had no concerns about the mother's ability to care for the children and observed that once various allegations were "researched and spoken to by various 3rd parties," her account was "more consistent with the truth than [appellant]'s account." Seiff-Haron told Malcolm that when discussing circumstances that arose during the course of the evaluation, appellant "appeared to skew the circumstances to blame the mother and state that she was manipulating the children," and that the results of psychological testing showed the mother having "classic symptoms of a survivor of domestic violence who was repressing anger and was trying to get past the violence, whereas appellant's results were deceptive, with subtle signs of control, that were oddly cryptic." Seiff-Haron had observed that in play sessions, although appellant was "not engaged in play" with S.K., the child had a "happy demeanor"; T.K.'s playtime was "very emotional" as he "was crying hysterically, did not want to go with appellant, and had his back turned to his father."
On February 17, the court ordered the children detained from appellant, to reside with the mother under the supervision of the Agency. The court granted the Agency discretion to hold supervised visits for appellant until therapeutic visits were arranged for him.
The Agency's disposition report was filed on March 14. Social worker Debra Culwell, having reviewed the recordings of the CASARC interviews, reported that T.K.'s responses when she spoke with him were consistent with what he had said in the interview. T.K. told her he did not want to have visits with his father because " 'I don't like him touching my pee-pee' " and because his father does not do anything fun with him and only plays with S.K. T.K. also said he did not like appellant's girlfriend because "they 'fight a lot,' " explaining, "they yell at each other and they push and hit each other." He said he felt safe with his therapist and could tell her if anything was bothering him. Dr. Smith told Culwell " 'there were red flags before the current allegations were made but I had nothing to report' "; T.K. "never disclosed sexual abuse directly but things that were said caused her to be suspicious." Culwell did not have new information about S.K. because he would avoid answering and change the subject when she asked him about his father or his father's house. S.K. was going to start therapy with the Child Trauma Project.
Culwell reported that a referral had been made for therapeutic visits for appellant but there were no providers who would accept the referral. A letter from A Better Way explained that visits were "contraindicated" due to the Agency having substantiated allegations of sexual molestation and T.K.'s unwillingness to visit his father. The Family Resource Centers would not allow supervised visits because of the sexual abuse allegations. Culwell set up supervised visits at the CPS office but they were suspended after two visits in early March because T.K. "appeared traumatized and was emotionally distraught because he did not want to visit his father." S.K. did not react the same way, but the staff lacked the "clinical knowledge or expertise to appropriately supervise the visit, especially given [S.K.'s] young age."
The letter stated: "Typically when child victims of sexual abuse express not wanting to have contact with their perpetrators, we as clinical providers do not recommend that we encourage contact. Having contact between victims and perpetrators when the victim is unwilling, and/or the perpetrator is not acknowledging the abuse can be damaging to a child's mental health functioning. Reparation therapy between the victim and perpetrator in the form of family therapy can be recommended if/when both the victim and perpetrator are willing to process the trauma. It is unclear at this time that this family is ready for this step. [¶] As such, Therapeutic Visitation services at this time would be contraindicated for these two children and their father."
Culwell stated that the allegations did not appear to be "coerced," as T.K.'s statements and details were consistent and his emotional response to his father was "very concerning"; she noted that S.K.'s age made it very difficult to obtain details to clarify what had happened to him. Culwell observed that while it was "not uncommon" for couples with contested custody issues to make allegations against each other, she found the mother to be "shocked and surprised" about the children's statements, "even thinking that there was an explanation for what the boys had reported because she did not want to believe the allegations could be true, meaning the statements do not appear to be coached by [the mother]." Culwell found appellant to "often minimize incidents, be evasive with details and/or deny things altogether," while the mother appeared to be protective and proactive, was connecting the children with services and did not need the Agency's assistance in order to keep the children safe.
The Agency recommended that the allegations be found true, the mother be given full custody of the children, and the case be referred back to family court and the court-appointed custody evaluator for recommendations concerning visitation and services for appellant. Culwell suggested that appellant complete a sexual perpetrator assessment prior to any unsupervised contact with the children and noted that when visitation resumed, appellant would need parenting assistance, as he appeared often able to focus on only one child at a time. She also expressed concern about "what appears to be a pattern of controlling, stalking behaviors and domestic violence incidents" by appellant, previously with the mother and currently with his girlfriend.
The report related that when asked directly about police contact regarding domestic violence other than the 2009 incident with the mother, appellant denied domestic violence with her or with any other woman. The mother reported that he had been "abusive (physically, emotionally and verbally) to her on several occasions during their relationship," and Culwell's investigation revealed that appellant's current girlfriend had contacted the police in September 2013 because she was "being harassed" by appellant and "feared for her safety." The police report indicated that appellant "would not accept" the girlfriend having broken up with him and " 'refuse[d] to respect her wishes to leave her alone,' " related the girlfriend saying she had seen appellant drive by her home, workplace and areas she frequented "numerous time[s]," and contained a handwritten statement by the girlfriend saying " '[Appellant] is very controlling, vindictive and angry and is persistent on the phone that we could never be apart.' "
The Agency filed an "Addendum Report" on April 22, relating an incident that occurred on March 18. When interviewed on March 29, T.K. reported that he and his mother's boyfriend had been in front of a San Francisco Target when appellant walked into the store. Appellant approached T.K., got down on his knee and kept repeating, "[T.K.], I love you." T.K. began crying and shaking and was very scared; when asked what he was afraid of, T.K. said, " 'that he was going to take me.' " Appellant left without buying anything and drove out of the parking lot. Culwell stated, "It is unknown if [appellant] intentionally or unintentionally was at Target at the same time as [T.K.]; however, it is clear that he approached him despite knowing that he was not to have contact with him per the current court order. [T.K.] continues to say that he does not want to have contact with his father."
The contested hearing was set for May 11 and then continued to May 25 after appellant retained an attorney to replace his court-appointed attorney. In his initial trial brief, appellant stated that he had been gradually obtaining more time with S.K. during the parents' years-long "vicious" custody battle, and he expected the family court custody evaluation, which was nearing completion when the dependency petition was filed, to recommend joint legal and physical custody of the children. He believed the mother reported sexual abuse and coached T.K. because she was concerned about the evaluator's recommendations. A supplemental trial brief filed by appellant's new attorney emphasized that T.K. was suffering due to the parents' conflict and understood the impact criticism of appellant would have on the custody decision.
On May 10, a new attorney retained by appellant filed a substitution of attorney form and on May 11, at the time set for trial, the court accepted the substitution to replace previous counsel, who had been appointed by the court. Thereafter, new counsel's request to continue the hearing date was granted and the matter was set for May 25. Appellant had been attempting to replace his appointed counsel since at least April 29, and counsel for the Agency had expressed concern that appellant was attempting to delay the jurisdiction hearing. The substitution was accepted by Judge Begert, who continued the case to the afternoon of May 11; at that time, Judge Breall granted the continuance to May 25, making clear that she did so only because the substitution had been granted and that she "probably" would not have accepted the substitution. The hearing ultimately proceeded on May 25, before Judge Davis.
The record reflects that as of August 2015, the parents shared joint legal and physical custody of T.K., with a basic schedule (not accounting for vacations) in which appellant had visitation on alternate weekends and overnight visits on the Thursday before and Monday after the mother's weekends. The mother had sole legal custody of S.K. and, for August through October, visitation consisting of roughly three or four Saturdays per month, one of which was an overnight, and Tuesdays from 4:30 to 6:00 p.m.
At the jurisdiction hearing, Malcolm testified that when she asked Dr. Smith whether T.K. had any concerns about his father, Smith said T.K. had told her he does not like it when his father washes him, saying he was too old, and had spoken about having a "rough time" getting in the car with his father; T.K. did not tell her about any sexual abuse or about the choking incident that was reported to the Agency. Smith told Malcolm that when she asked appellant about "the bath incident," appellant did not respond, and that she suspected T.K. had been sexually abused by appellant, although she did not "have enough to even make a mandated report." Smith stated that appellant had "minimal involvement" with her but would call "just to check in . . . about getting evidence on the mother," and that he "tends to twist words." The therapist said she had to tell the mother not to "drill" T.K. about his visits with appellant because it caused T.K. a lot of stress, but said she had no concerns about the mother.
When Malcolm asked appellant about Smith's report of what T.K. said about bathing, appellant said T.K. bathes on his own. Both parents told her there was an open family law case, and the mother said that appellant had not paid child support since December 2015. Sergeant Wong from the San Francisco Police Department Special Victims Unit (SVU) told Malcolm that he had reviewed the recordings of the CASARC interviews and determined not to pursue a criminal investigation. The principal of the children's school reported that there were no concerns about their overall well-being at school. T.K.'s teacher said that he was a sweet kid who made friends easily and was well liked, and that he had "trouble following directions and following along during lessons" and "can get easily confused about simple tasks."
Sergeant Wong, a case assignment officer for SVU, testified that in determining whether to assign a case for criminal investigation, he would consider the "solvability of the case based on the disclosure from the kids" and presence of factors such as intent for sexual gratification of the suspect, corroboration, physical evidence or biological evidence. Wong testified that it is difficult to investigate a criminal case when there is also a pending child custody case because, in his experience, "one party makes allegations or coaches the child saying one thing to make a police report where it sounds more of a custody issue." Based on his experience, and stating that he was not an expert, Wong felt that a lot of the reports he saw "read like the child was coached," especially with children as young as five or six. In the present case, he did not observe the CASARC interviews or review the recordings, but based his decision on consultation with the forensic interviewer after the interviews. The case was not closed but was "inactive," not assigned to an investigator.
Social Worker Thu-Fuong Vo investigated the January choking incident, which was reported to the Agency by Dr. Seiff-Haron. The mother told Vo that she did not see the choking: She dropped T.K. off with appellant, then heard the child crying, returned and asked T.K. why he did not want to get into his father's car. She told Vo there was no current domestic violence but there had been in the past. Appellant denied choking T.K., saying, "I gave him a hug. Not choking." He told Vo, " 'That's mom . . . . She's lying. This is a complete lie.' " He said T.K. did not want to get into his car, the mother returned and told T.K. to get into the car "right now," and T.K. got in. T.K. told Vo he was not afraid to be with his father. He said his "three wishes" were, "Dad would not choke me anymore. Dad take me to the water park, and take me to the playground." T.K. asked Vo to "let his father know to let him take a bath by himself." When Vo discussed this with appellant, he said " 'When he's not with his mom, he opens up to me a whole lot more, and it is okay with me giving him a bath.' " The Agency ultimately concluded the choking allegation was "inconclusive." Vo explained that this result was reached because an allegation cannot be determined "unfounded" if the child confirms it, as T.K. did here, but there was not "enough to bring it to the court level."
Dr. Smith testified that T.K.'s therapy with her began on May 12, 2015. One of the treatment goals was "specific around two types of lying" - lies of omission about gifts and events that happened at his father's house. She was concerned about the omissions because a child being unwilling to talk to one parent about what happens at the other parent's house indicates "there won't be a lot of cohesiveness" in the family dynamics. Smith testified that she pursued the question whether T.K. was being abused and, as to whether he was touched inappropriately by appellant, "[a]ll I concluded is that I didn't have enough to file a report" as a mandated reporter. Asked what information would trigger her obligation to make a CPS report, Smith said, "In general if I think a child is being harmed by an adult and I have reasonable suspicion I would call CPS." When she asked appellant "if it would be okay that he stop[] bathing T.K.," he said there was "no problem there and that they would continue."
Smith testified as T.K.'s treating psychologist but was not qualified as an expert in clinical psychology generally, as counsel for appellant had not complied with the requirement that a proposed expert witness be identified as such on a party's witness list, with a CV and summary of the testimony provided in advance.
Smith had several conversations with Seiff-Haron, during which they discussed the treatment goals of T.K.'s therapy, including his lying and Smith's recommendation that the mother ask T.K. fewer questions to encourage him to be more forthcoming, but Smith denied telling Seiff-Haron that the mother's questioning put pressure on T.K. that caused him to tell lies. They also discussed the question whether there had been "any inappropriate sexual conduct," including that Smith conducted a "touch assessment" with T.K. due to concern about "inappropriate sexuality." Smith explained that the absence of sufficient information to make a CPS report did not negate her concern about possible sexually inappropriate conduct, stating that her concern was evident in the fact she did a touch assessment and considered making a CPS report, and that she asked Seiff-Haron to "check in on the touch, specifically about the bathing practices."
Smith explained that a "touch assessment is to see if there has been any other appropriate or inappropriate touching and the feelings it might invoke." "[I]nappropriate" includes sexually inappropriate, and the test involves some verbal questioning of a child.
Debra Culwell, who wrote the Agency's Disposition Report and Addendum Report, had been a social worker in San Francisco for over 18 years, participated in four or five "medical and sexual abuse forensic trainings" over the years, and investigated 50 or more child sexual abuse cases. Having watched the recording of T.K.'s CASARC interview, she testified that what T.K. told her about the inappropriate sexual touching when she spoke with him was "very consistent" with what she saw in the recording, and that she did not have any evidence that would lead her to believe T.K. had been coached or coerced to make the allegations.
Culwell first met T.K. at the time of his first visit with appellant, and she described him as "very hysterical" at the idea of going to see his father despite the mother reassuring him that the social workers would be in the room and he would not be alone with appellant. T.K.'s hysteria lasted "close to an hour after the visit started. This caused Culwell concern because it was "highly unusual" for a child to have this kind of reaction, especially with someone with whom the child was very familiar. T.K. appeared to be angry and did not want his father to touch him; when appellant was trying to hug him, T.K. was pulling away, keeping his arms at his side and asking his father to let go. There had been no further visits in the approximately five months since that first one and T.K. continued to say he had no desire for a visit with his father, most recently in a conversation in mid-July. Culwell testified that when she talked with T.K. about the incident when he ran into his father at Target in March, after visitation had been suspended, T.K. told her he was afraid because he thought his father was going to take him.
Asked if she had observed other behavior that caused her concern, Culwell testified that T.K. appeared to be anxious: "He had a lot of hand movements and kind of jittery in the chair. . . ." At their first meeting, T.K. brought up the subject of sexual touching without Culwell having specifically asked about it: When she asked why he thought a social worker wanted to talk with him, he said " '[b]ecause my dad was touching my pee-pee.' " He told Culwell that he did not want his father touching his "privates" in the shower and that had asked him to stop. He also said appellant was touching S.K.'s privates in the bathtub, and that S.K. was upset and T.K. tried to help S.K. relay the message that they both wanted this to stop. Culwell said that "[e]very time [T.K.] talked about his dad touching his penis it seemed to be painful, that he didn't like it."
Culwell discussed with appellant T.K.'s desire that appellant not bathe or wash him, and appellant said he was not doing this anymore. Appellant told Culwell he had not touched his sons' penises in a sexual way, and he forwarded to her an email that Seiff-Haron had sent to the parents and counsel in the custody case about "his findings with regard to the lack of any indication that the children were being sexually abused." Culwell was concerned about appellant not responding to T.K.'s verbal requests or physical responses: Throughout the investigation, T.K. repeated that he did not want his father to bathe him or touch him, and at the supervised visit he was upset about his father trying to hug him, "and all these times [appellant] just never stops. [¶] So it seems to be that there is no cues that are taken from him as an adult." Culwell stated that the same behavior from appellant was evident in Vo's report that appellant was not receptive when she talked to him about T.K. not wanting appellant to bathe him.
Appellant denied any domestic violence and his girlfriend told Culwell in an email that there had not been fights between her and appellant. Culwell's investigation revealed that the girlfriend had been granted an emergency protective order against appellant.
The mother told Culwell that S.K. had been fully toilet trained but, as the visits with his father increased during the family court proceedings, he began bed wetting at night when he was with her; during the months since February, when he was no longer visiting with appellant, S.K.'s bed wetting stopped. Culwell testified that such regression is often a symptom of a child who has been abused.
Culwell acknowledged that the anxiety, stress and regression she discussed in relation to T.K. and S.K. can be attributed to many causes, not solely "sexual inappropriateness," and that parents' custody battles can be stressful for children. Asked whether, in reviewing the recorded CASARC interviews, she saw either of the children exhibiting anxiety or distress, Culwell said that she did not recall seeing the behaviors that she saw in her own interview with T.K., and that all she recalled about S.K. was that "he was very playful, and during his interview he seemed uncomfortable with the conversation." Culwell acknowledged that the staff person who supervised a visit between S.K. and appellant on March 3 reported positive interactions between the two.
Asked whether, in her experience, it was typical for perpetrators of sexual abuse on children to admit what they have done, Culwell said she had never had anyone admit having committed the act.
At the conclusion of the evidentiary portion of the proceedings, counsel for appellant represented that if the petition was sustained, appellant would submit to the proposed disposition. At the request of the Agency, two allegations under section 300, subdivision (b), relating to the mother's ability to protect and care for the children were stricken from the petition. On August 15, the court struck two more allegations under section 300, subdivision (b), one pertaining to domestic violence between the parents and the other to appellant having a substance abuse problem, and amended the wording of the remaining allegation under this subdivision and the wording of the two allegations under subdivision (d). The court found the allegations of the petition true as amended, found that both children came within the provisions of section 300, subdivisions (b) and (d), and ordered that they reside in the home of the mother and the petition be dismissed in favor of legal and physical custody in the mother. The court ordered that there be no visitation for appellant, finding by clear and convincing evidence that visitation would be detrimental with respect to "emotional harm to these children given the nature of the allegations that have been sustained and their young ages."
The judgment, filed on September 6, states, "The court found true, at the conclusion of the trial on August 15, 2016, that father sexually abused both [T.K.] and [S.K.] in that he touched their penises in a parking lot before going to see Santa in December 2015, and that he also touched their penises during their visits with him. The court further found that visitation with father would be detrimental to both [T.K.] and [S.K.]"
Appellant filed a notice of appeal on September 7.
DISCUSSION
I.
In a claim "akin" to a demurrer (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133), appellant contends the petition failed to allege facts sufficient to the children came within the provisions of section 300, subdivision (d), in that it was alleged only that the children said appellant molested them, not that appellant in fact did what the children described.
As the Fred J. court explained, " 'It has been held specifically that "[n]otice of the allegations upon which the deprivation of custody is predicated is fundamental to due process. . . . Accordingly, a parent must be given notice of the specific factual allegations against him or her with sufficient particularity to permit him or her to properly meet the charge." ' (In re Fred J. [(1979)] 89 Cal.App.3d [168,] 175, quoting In re J. T. (1974) 40 Cal.App.3d 633, 639, italics added by Fred J.)" (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036-1037 (Jessica C.).) Appellant acknowledges, however, that " ' "[i]f the jurisdictional findings are supported by substantial evidence, the adequacy of the petition is irrelevant. " [Citation.]' (N.M. [(2011) 197 Cal.App.4th 159,] 166, fn. omitted.) 'The only exception occurs when a parent claims a petition fails to provide actual notice of the factual allegations. Unless the alleged factual deficiencies result in a miscarriage of justice, the reversal of a jurisdictional order supported by substantial evidence is unwarranted.' (In re Javier G. (2006) 137 Cal.App.4th 453, 458-459.)" (In re John M. (2012) 212 Cal.App.4th 1117, 1123.)
In Jessica C., as here, the petition alleged that the minor "reported" that her father sexually molested her, not that appellant in fact molested the child. (Jessica C., supra, 93 Cal.App.4th at p. 1032, fn. 3.) The juvenile court sustained the petition under section 300, subdivision (d), "an adjudication which necessarily implies actual sexual abuse or the real possibility of actual sexual abuse, not merely a child's imagined reports of it." (Id. at p. 1037.) Jessica C. explained that "after a hearing on the merits has been held on the petition, the focus must necessarily be on the substance of the allegations found true by the juvenile court, not idiosyncratic particulars of the social worker's precise language." (Id. at pp. 1037-1038.)
Appellant argues that Jessica C. is distinguishable because "the petition did not support the dependency court's jurisdiction, but the facts proven during adjudication did." According to appellant, the allegations here were only that the children "made certain statements" and "the evidence did not prove otherwise." Appellant can make this argument only because he challenges the admissibility of the children's hearsay statements relating the abuse and domestic violence. Given our conclusion that those statements were admissible, the evidence supports the juvenile court's determination that the reported events actually happened, just as was the case in Jessica C.; there, too, the evidence consisted only of the child's description of the abuse.
Appellant's argument that he was prejudiced because the "only facts appellant was given notice of were the statements of his children" and "[t]his is no notice at all" is entirely unpersuasive. Appellant was clearly aware that the issue at the jurisdiction hearing was the truth of what the children reported—what actually happened, not just what the children said. He defended against substantive allegations of abuse—as demonstrated by the fact that he tried to introduce into evidence the results of the polygraph examination in which he denied any sexual touching of the boys and the text from the family court evaluator saying appellant's behavior and testing to date had not shown any "sign of sexual risk."
There can be no question that the court determined the reported sexual abuse actually occurred. Aside from the necessary implication of the fact that the allegations were sustained under section 300, subdivision (d), meaning the court found actual abuse (Jessica C., supra, 93 Cal.App.4th at pp. 1037, 1038, fn. 7), the judgment in the present case stated, "The court found true, at the conclusion of the trial on August 15, 2016, that father sexually abused both [T.K.] and [S.K.] in that he touched their penises in a parking lot before going to see Santa in December 2015, and that he also touched their penises during their visits with him."
As we will explain later in this opinion, substantial evidence supported the court's conclusions. In these circumstances, as it is clear appellant was aware that jurisdiction was being sought due to allegations that he sexually abused his children and defended against those allegations, any deficiencies in the wording of the petition do not warrant reversal.
II.
Appellant challenges the admissibility of the DVD recordings of the children's CASARC interviews, arguing that they do not fall within the exception to the hearsay rule created by section 355 or the judicially created "child dependency hearsay exception." The hearsay rule bars evidence of an out-of-court statement offered to prove the truth of the matter stated unless it falls within a recognized exception to the rule. (Evid. Code, § 1200; People v. Sundlee (1977) 70 Cal.App.3d 477, 482.) "An electronic voice recording has no more sanctity than the oral testimony of a witness recounting the same extrajudicial declarations." (Sundlee, at p. 483.) Here, the recordings were offered to prove the truth of T.K.'s statements in his interview, that he and S.K. had been sexually molested by their father. Appellant additionally argues that the portions of the Agency's report relating the social worker's description of what the children said in their interviews was inadmissible.
A.
Section 355, subdivision (a), provides that at the jurisdictional hearing, "[a]ny legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence." Under subdivision (b) of the statute. "[a] social study prepared by the petitioning agency, and hearsay 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)."
" '[S]ocial study' means any written report furnished to the juvenile court and to all parties or their counsel by the county probation or welfare department in any matter involving the custody, status, or welfare of a minor in a dependency proceeding . . . ," and the preparer of the social study "shall be made available for cross-examination upon a timely request by a party." (§ 355, subds. (b)(1), (b)(2).)
Subdivision (c)(1) of section 355 provides that "[i]f a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of" specified exceptions. The exception relevant here is that "[t]he hearsay declarant is a minor under 12 years of age who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under 12 years of age shall not be admissible if the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence." (§ 355, subd. (c)(1)(B).)
The other exceptions are that "[t]he hearsay evidence would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay" (§ 355, subd. (c)(1)(A)), "[t]he hearsay declarant is available for cross-examination" (§ 355, subd. (c)(1)(D)), or "[t]he hearsay declarant is a peace officer as defined by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, a health practitioner described in paragraphs (21) to (28), inclusive, of subdivision (a) of Section 11165.7 of the Penal Code, a social worker licensed pursuant to Chapter 14 (commencing with Section 4991) of Division 2 of the Business and Professions Code, or a teacher who holds a credential pursuant to Chapter 2 (commencing with Section 44200) of Part 25 of Division 3 of Title 2 of the Education Code." (§ 355, subd. (c)(1)(C).)
Subdivision (d) of section 355 provides: "This section 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."
In addition to the requirements of the statute, In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.) held that in the case of a child found incompetent to testify, in order to satisfy the requirements of due process, hearsay made admissible by section 355 must also bear " 'special indicia of reliability' " before it can be treated as "fully competent evidence." (Lucero L., at p. 1246.) "[S]ection 355 notwithstanding, the out-of-court statements of a child who is subject to a jurisdictional hearing and who is disqualified as a witness because of the lack of capacity to distinguish between truth and falsehood at the time of testifying may not be relied on exclusively unless the court finds that 'the time, content and circumstances of the statement provide sufficient indicia of reliability.' " (Id. at pp. 1247-1248, quoting In re Cindy L. (1997) 17 Cal.4th 15, 29.) Without special indicia of reliability, the minor's hearsay statements are admissible, but sufficient to support a jurisdictional finding only "if corroborated by other evidence." (Lucero L., at pp. 1244, 1247.) "At least in the case of a truth incompetent minor, the court may rely exclusively on these out-of-court statements only 'if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility . . . .' " (Id. at p. 1249, quoting Idaho v. Wright (1990) 497 U.S. 805, 821, 822.)
Appellant emphasizes this requirement of special indicia of reliability and claims it was not met. But as far as the record discloses, T.K. was never found either incompetent or unavailable to testify. It does not appear that any party proposed to call the child as a witness. Accordingly, the additional requirements of Lucero L. do not apply here.
We agree with appellant, however, that the DVD recordings were not admissible under this statutory hearsay exception. Section 355 governs the admissibility and use of hearsay "contained in" a social study. Respondent does not explain how the actual recording could be considered "contained in" the social worker's report. The DVDs are neither physically part of the report nor provided as attachments to the report, were offered in the trial court as separate exhibits, and were referred to by all counsel as the "strongest evidence" or "best evidence" of T.K.'s statements. Moreover, while " 'the "elements of objectivity and expertise lend [social studies] a degree of reliability and trustworthiness" ([In re] Malinda S. [(1990)] 51 Cal.3d [368,] 377), such that the social studies will generally contain accurate reports of interviews with children, the statements of the children themselves found therein do not necessarily possess any particular guaranties of reliability.' " (Lucero L., supra, 22 Cal.4th at p. 1240, quoting Cindy L., supra, 17 Cal.4th at pp. 32-33.) The DVDs are direct recordings of out-of-court statements that were offered to the court as exhibits separate from the Agency's reports.
Respondent does not directly argue that the recordings themselves were admissible under section 355, but implicitly assumes such admissibility in responding to appellant's argument. Respondent states, "Father claims that [T.K.'s] statements in his CASARC interview do not qualify under section 355 because the social workers' summary of those statements did not offer any auditory or visual information related to the interview. . . . But the DVD of the interview provided such information." This statement misconstrues appellant's argument. Appellant argues that while the reports contained the social worker's description of statements T.K. made in the CASARC interview, appellant argues that the DVDs themselves conveyed information the summary could not—audio and visual information that could affect a viewer's assessment of the credibility of the words spoken. Respondent's argument that the DVDs provided information otherwise missing from the Agency's report bolsters rather than negates appellant's contention: Appellant's point is that the DVDs were not admissible because they provided information beyond what was stated in the social workers' reports and were not themselves "contained in" those reports. We fail to see how section 355 can be stretched to include these recordings.
Appellant also challenges the admissibility of the social worker's descriptions of the statements made during the CASARC interviews. As explained above, under 355, subdivisions (b) and (c)(1)(B), these hearsay statements would be admissible, and constitute competent evidence supporting a finding of jurisdiction, unless appellant established that they were "unreliable because [they were] the product of fraud, deceit, or undue influence." Appellant does not argue he proved such grounds.
Appellant argues, however, that the social workers' descriptions were inadmissible "secondary evidence": According to appellant, since the DVD recordings were the "best evidence" of what the boys communicated during the interviews, the social worker's description of their statements was "secondary evidence" and "had to be excluded because there was a material dispute as to what was communicated by the interviews." Appellant cites Evidence Code section 1521, subdivision (a), which provides that "[t]he content of a writing may be proved by otherwise admissible secondary evidence" but requires exclusion of such evidence if the court determines either that a "genuine dispute exists concerning material terms of the writing and justice requires the exclusion" or that "[a]dmission of the secondary evidence would be unfair," and Evidence Code section 1523, which limits the use of oral testimony to prove the content of a writing.
The DVD recordings were "writings" within the meaning of the Evidence Code. (People v. Goldsmith (2014) 59 Cal.4th 258, 266; Evid. Code, § 250.) As defined in Evidence Code section 250, " 'Writing' means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored."
Evidence Code section 1523 provides:
"(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.
(b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.
(c) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied:
(1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means.
(2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production.
(d) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole."
Appellant also cites People v. Moran (1974) 39 Cal.App.3d 398, 406-411, apparently for its discussion of the benefits of video recording in communicating details and nuances beyond what a transcript can convey.
Appellant offers Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093 (Pajaro Valley), as an example. There, the plaintiff sought to prove damages through the declaration of its manager, which described the amounts of money the defendant owed and manner in which they had been calculated, and attached an exhibit showing the computation, but did not attach the underlying allegedly unpaid bills. The declaration was admissible under an exception to the hearsay rule, but there was no showing that a hearsay exception applied to the computation upon which the declaration was based or the bills upon which the computation was based. (Id. at pp. 1106-1108.) Finding that the defendant's hearsay objection should have been sustained, the Pajaro Valley court explained that Evidence Code section 1521 "permits the introduction of 'otherwise admissible secondary evidence' to prove the contents of a writing" but "does not excuse the proponent from complying with other rules of evidence, most notably, the hearsay rule." (Id. at p. 1108.) Thus, under Evidence Code section 1521, the plaintiff could offer secondary evidence to establish the content of the bills if "the contents themselves were admissible" and "the secondary evidence was 'otherwise admissible' "; absent a showing that the bills themselves were admissible, secondary evidence of their contents was inadmissible. Here, by contrast, section 355, subdivision (c)(1)(B), made admissible the social worker's report and T.K.'s statements related in the report.
Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 994-995 (Molenda), which appellant cites in stating that there was a material dispute as to what was communicated in the children's interviews, makes the same point as Pajaro Valley—that secondary evidence must be admissible under the general rules of evidence. Molenda explained that "the phrase 'best available evidence' refers to the admissibility of the evidence under the secondary evidence rule, which provides that the 'content of a writing may be proved by otherwise admissible secondary evidence' unless the court determines either that '[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion' or that '[a]dmission of the secondary evidence would be unfair.' (Evid. Code, § 1521, subd. (a), italics added [in Molenda].)" (Molenda, at p. 994, fn. omitted.) "A writing that passes muster under the secondary evidence rule . . . 'still may be inadmissible because of other exclusionary rules of evidence, such as hearsay, opinion, privilege, or irrelevancy.' (1 Jefferson, supra, § 31.20, p. 685 (rev. 3/06) citing Pajaro Valley, supra, 128 Cal.App.4th 1093.)" (Molenda, at pp. 994-995.)
Appellant also maintains that the social worker's descriptions of the interview statements had no evidentiary value because there was a material dispute as to what was communicated in the interviews. (Evid. Code, § 1521, subd. (a)(1).) According to appellant, there were disputes as to how the interviews were conducted, whether the interviewer's questions were suggestive, whether the boys knew the difference between truth and lies, and what the boys communicated by tone of voice, facial expression and physical movement during the interviews. Appellant offers no illustration in support of this argument; his only citation to the record is to a page of the reporter's transcript at which counsel stated her hearsay objection based on reliability of the boys' statements.
Evidence Code section 1521 provides that the court shall exclude secondary evidence if a "genuine dispute exists concerning material terms" of the writing and "justice requires the exclusion." We are not persuaded that the present case involves the sort of dispute intended to preclude secondary evidence. Appellant does not argue that the Agency's reports mischaracterize what T.K. said in the interview. The only discrepancy of which we are aware is that the detention report relates T.K. having said in his interview that he "gets scared" when he visits appellant and the recording does not reflect his having said this. This discrepancy was specifically brought to the juvenile court's attention. Appellant's attorney argued that the boys' statements in the interviews could not be the sole basis for a jurisdictional finding unless the court found them to be reliable, that the statements might have been affected by pressure from the parents' custody battle, and that the DVDs were the "best evidence" in that they accurately reflected the actual statements while the reports reflected the social worker's interpretation of the actual statements. With the exception of the comment about T.K. saying he got scared at his father's home, appellant points to no way in which the social worker's descriptions of T.K.'s statements give a different impression than the statements as they appear on the recordings. He does argue that the DVDs convey more information about what was "communicated" during the interviews because, unlike the Agency's reports, they reveal the boys' tone of voice, facial expressions and body language. This additional information, of course, can be very significant in assessing the credibility of the declarant. But appellant does not suggest any way in which viewing the recording would lead to a different assessment of what T.K. communicated in his interview than what was related by the social worker.
Appellant's argument that there was a dispute as to how the interviews were conducted and whether they were suggestive contradicts the position his attorney took at the hearing. Unlike appellant's argument on appeal that the circumstances suggested coaching and suggestive questioning in the interviews, appellant's attorney at the juvenile court hearing expressly stated she was not arguing that the children were "coerced" or "coached" or that "this was a lie," and that the interviewer "did an excellent job because she did not push an agenda" and created a comfortable and non-threatening atmosphere.
Appellant points to no case requiring exclusion of hearsay in a social worker's report that would otherwise be admissible under section 355 on the basis that it is secondary evidence because there is also a recording of the hearsay. If the recording itself is admissible, it is difficult to imagine what purpose would be served by excluding the descriptions in the report. If the recording is not admissible, appellant's argument would deprive the court of any evidence of what was said in the interview despite section 355's provision for admission of hearsay is a social worker's report. Section 355 specifically addresses the admissibility of hearsay in a social worker's report at a jurisdictional hearing. To the extent Evidence Code section 1251 bears on the question, "a 'more specific statute controls over a more general one' touching on the same subject." (Molenda, supra, 172 Cal.App.4th at p. 993, quoting Lake v. Reed (1997) 16 Cal.4th 448, 464.)
B.
Apart from section 355, under the judicially created child dependency exception to the hearsay rule, there are three conditions for admitting out-of-court statements of abuse of children subject to jurisdictional hearings pursuant to section 300: "(1) the court must find that the time, content and circumstances of the statement provide sufficient indicia of reliability; (2) a child must either be available for cross-examination or there must be evidence of child sexual abuse that corroborates the statement made by the child; and (3) other interested parties must have adequate notice of the public agency's intention to introduce the hearsay statement so as to contest it." (Cindy L., supra, 17 Cal.4th at p. 29; Lucero L., supra, 22 Cal.4th at pp. 1238-1239.) Factors " 'relevant to the reliability of hearsay statements made by child witnesses in sexual abuse cases' " include " '(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate. (Idaho v. Wright[, supra,] 497 U.S. [at pp.] 821-822.)' " (Lucero L., at pp. 1238-1239, quoting Cindy L., at pp. 29-30.) "[T]he child's ability to understand the duty to tell the truth and to distinguish between truth and falsity is also a factor in determining the reliability of his or her extrajudicial statements." (Cindy L., at p. 30.)
In the present case, the children did not testify. Accordingly, for the recordings of the interviews to be admissible under the child dependency exception, the Agency was required to prove that the hearsay statements met the required standard of reliability and were corroborated. Appellant argues that the statements were neither inherently reliable nor corroborated.
The court made no findings as to T.K.'s competence or availability to testify.
Preliminarily, appellant argues that the trial court did not conduct the required inquiry before admitting the DVDs into evidence. He urges that the court conducted no analysis and failed to understand that it had to determine whether there were special indicia of reliability to make the children's statements admissible, not just whether the children appeared to be credible in the recorded interviews. Indeed, appellant urges that the court did not realize the DVDs were hearsay evidence and erroneously assumed they were admissible.
While the court did not make express findings or discuss its analysis on the record, we decline to accept appellant's assumptions. At the outset of the trial, appellant's attorney argued that the admissibility of the recorded interviews depended on the court's determination of the "foundational" issue of reliability of the statements, although counsel stipulated that it was not necessary to establish a foundation for admission of the tapes through testimony of the interviewer. Through objections during the trial, counsel reiterated her position that the statements made in the CASARC interview were not reliable and that without direct evidence, the statements would not be sufficient to support jurisdiction. In arguments after the evidence had been presented, counsel for the children argued that the children's statements were admissible under section 355 and under the hearsay exception created by Carmen O. and Cindy L, discussing the evidence bearing on the factors identified in the caselaw as relating to reliability. In light of counsels' arguments and objections, the court could not have failed to understand that it had to determine whether the DVDs were admissible.
"We must uphold the court's findings if they are supported by substantial evidence. (Soto v. State of California (1997) 56 Cal.App.4th 196, 199.) The decision of the juvenile court, if correct, will be upheld even if the stated reasons for the decision are erroneous or incomplete. (See Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568.)" (Lucero L., supra, 22 Cal.4th at pp. 1249-1250.) We focus on the recording of T.K.'s interview because it is T.K.'s statements that appellant is challenging; S.K. apparently made no disclosure of abuse during his interview. As the trial court made no express findings, we must determine whether substantial evidence supported its implied finding that there were sufficient indicia of reliability for T.K.'s statements in the interview.
Appellant cites several cases in support of the proposition that "when the trial court applies a wrong legal standard, the error is usually reversible per se because, the issue having been tried upon the wrong standard, the reviewing court usually cannot from the existing record determine what evidence would have been presented and what ruling the court would have made had it used the correct standard." (In re V.F. (2007) 157 Cal.App.4th 962, 972-974, [court applied incorrect statute in ordering children removed from father's custody]; In re Isayah C. (2004) 118 Cal.App.4th 684, 699-701 [court relied upon improper as well as proper factors]; In re Marriage of Weaver (1990) 224 Cal.App.3d 478, 487-488 [court applied incorrect standard of proof]; In re Gladys L. (2006) 141 Cal.App.4th 845, 848-849 [court applied incorrect standard].) Appellant argues that we can review the implied finding in the present case because the record demonstrates as a matter of law that the children's hearsay statements did not have sufficient indicia of reliability. As will be discussed, we disagree with appellant's assessment of the record. We also disagree, as we have said, with the premise that the court employed an incorrect legal standard in determining that the DVDs were admissible. The record indicates that the court simply failed to expressly state its findings and reasoning on the record.
We also decline appellant's invitation to employ a different standard of review from that used in Lucero L., supra, 22 Cal.4th at page 1249.
With respect to the factors bearing on reliability, appellant argues that the record does not indicate the children's statements were ever made spontaneously. The children's statements to the social worker and CASARC interviewer were in response to questioning and the only other source of information about their reports was the mother, who, appellant emphasizes, had a motive to fabricate due to the parents' contentious custody dispute and her objection to the increased visitation appellant was seeking. There is no evidence the children told any teacher, tutor or day care provider about abuse, and while T.K.'s therapist invoked privilege and declined to say whether T.K. told her his father had touched him inappropriately, the therapist was a mandatory reporter and made no report to CPS. Appellant argues that these circumstances imply coaching and suggestive questioning, noting that when the interviewer asked T.K. what his mother had told him about why he was being interviewed, he replied, "She said I would talk to you about that my dad was touching my pee-pee."
Respondent, by contrast, argues that both children reported the abuse to their mother spontaneously and that T.K. also reported it spontaneously to Culwell, who stated that he brought up the allegations before she made any reference to improper conduct. The latter point is not particularly persuasive: By the time T.K. spoke with Culwell, he clearly knew the subject of the adults' inquiries. The former depends on the credibility attached to the mother's report. The trial court was well aware of the parents' custody battle and appellant's belief that the mother had fabricated the abuse allegations and coached the children to make them. The social worker described the mother as "shocked and surprised" about the children's reports, and viewed the fact that the mother initially thought there must be an innocent explanation—that appellant only touched the boys while washing them—as indicating the boys' statements were not coached by the mother. The court necessarily rejected appellant's view of the case—it could not have found the children's statements admissible otherwise. Substantial evidence supports the conclusion that the children spontaneously reported to the mother that appellant had touched their penises.
Further supporting the reliability of T.K.'s statements in the CASARC interview, the details of the molestation T.K. described—the bath, the shower, the Nordstrom parking lot—were consistent across the report related by the mother, the interview described by Culwell and the CASARC interview. T.K.'s ability to distinguish truth and falsity was evident in his CASARC interview, for example, when he corrected the interviewer when she incorrectly stated he was in third grade in school.
Respondent urges that the language T.K. used in relating the alleged abuse—appellant "squeezing," "pulling" and "playing with" their "pee-pee[s]"—was age-appropriate and therefore indicates reliability. Aside from "pee-pee," however, none of these words are distinctively age-appropriate or age-inappropriate for a young child. The language used thus appears to be a neutral factor and does not lend much to the analysis of reliability.
Appellant maintains that the Agency presented no evidence of T.K.'s mental state. As respondent urges, however, T.K.'s demeanor during the CASARC interview indicates that he was serious and sincere in discussing the molestation. There was also telling evidence of his mental state in Culwell's description of his extreme response to visitation with his father. While not necessarily indicative of sexual abuse (as opposed to another trauma), T.K.'s emotion was clearly genuine, and Culwell testified that his response was both extreme and consistent with that of an abused child.
Appellant notes that one of the goals of T.K.'s therapy was to address his lying, but it is not clear what inference he intends to draw from this point. Appellant expressly recognizes that the issue of concern in T.K.'s therapy was with lies of omission; there is no suggestion in the record that he was a child prone to invent stories and present them as truth. To the extent it may be inferred that T.K. had a motive to fabricate a story in an effort to sway the outcome of the parents' custody battle, appellant fails to suggest how a seven-year-old child would have come up with the scenario of his father touching and playing with his and his brother's penis. The reported abuse is more readily explained as a fabrication by the mother, who clearly did have a motive to portray appellant as having acted in an inappropriate sexual manner with the boys. But, as we have said, the trial court was clearly aware of this potential source of bias and implicitly rejected it as the explanation for the allegations.
Appellant also points to the fact that T.K. said in the CASARC interview that he had told his therapist about appellant touching his penis, but Smith told the initial social worker investigating this case that T.K. did not make this disclosure in therapy. This inconsistency is not necessarily as significant as appellant believes it to be. Before these allegations surfaced in February 2016, T.K. had expressed considerable concern about his father bathing him: A couple of months earlier he had told Smith he did not like his father washing him, and he had asked Vo, the social worker who investigated the choking incident in January, to tell his father to allow him to take a bath by himself. As much of the inappropriate touching T.K. reported occurred while appellant was bathing the children or showering with T.K., it may well be—as counsel for the children argued below—that in T.K.'s mind, complaining to Smith and the social worker about the bathing amounted to telling them about his father's inappropriate touching. Smith apparently made this connection: She testified that although she did not have sufficient information to make a CPS report, she was concerned about the possibility that T.K. was being abused by appellant and asked the family court evaluator to look into this, "specifically about the bathing practices."
The other instances of inappropriate touching T.K. described were his father touching S.K.'s penis while putting on his pajamas and touching T.K.'s penis while changing his clothes in the Nordstrom garage. The latter was discussed in some detail in T.K.'s CASARC interview.
Aside from challenging the reliability of T.K.'s statements in the CASARC interview, appellant argues they were inadmissible under the child dependency exception because there was no corroborating evidence. We disagree with this point as well.
The corroboration requirement is "not imposed by due process" (Lucero L., supra, 22 Cal.4th at p. 1248), but "is an additional safeguard against the possibility of fabrication by very young witnesses whose out-of-court statements are insulated from the rigors of cross-examination." (Cindy L., supra, 17 Cal.4th at p. 30.) "Corroborative evidence in this context is ' " 'evidence . . . which would support a logical and reasonable inference' " that the act of abuse described in the hearsay statement occurred.' (State v. Swan (1990) Wn.2d 613 fn. omitted.)" (Cindy L., at p. 35.) By analogy to the rule of criminal law requiring corroboration for accomplice testimony, which also relates to the sufficiency of the evidence, corroboration of a child's hearsay statement in the present context may be by direct or circumstantial evidence, and " 'is sufficient if it tends to connect' " the alleged perpetrator with the alleged act, " 'even though it is slight and entitled, when standing by itself, to but little consideration.' " (In re B.D. (2007) 156 Cal.App.4th 975, 984, quoting People v. Ruscoe (1976) 54 Cal.App.3d 1005, 1012.) The corroborating evidence does not need to establish " 'the precise facts' " (In re B.D, at p. 984) described by the declarant, and " ' "whether the corroborating evidence is as compatible with innocence as it is with guilt is a question of weight for the trier of fact [citations]." [Citation.]' " (Id. at p. 985.)
While there was no direct evidence corroborating T.K.'s statements about his father touching his and S.K.'s penises, the reported molestation was corroborated by the evidence that S.K. regressed in his toilet training, wetting his bed after visitation with appellant was increased, then stopped the bed-wetting after visitation was terminated. Culwell testified that such regression was "one of the symptoms" of sexual abuse in a child S.K.'s age. T.K.'s extreme emotional response to visitation with appellant, resisting his father's attempt to touch or hug him, which the social worker testified was also consistent with abuse, provided further corroboration. (See In re B.D., supra, 156 Cal.App.4th at p. 984 [child's fear of mother corroborated witness reports of abuse]), as did Culwell's report that Smith told her there had been "red flags" in T.K.'s therapy that made her suspicious about sexual abuse before the allegations in this case were made. The point is not that this corroborating evidence necessarily demonstrated sexual abuse but that it supported a " ' " 'logical and reasonable inference' " ' " that the acts T.K. described in fact occurred. (Cindy L., supra, 17 Cal.4th at p. 35.)
We "will not overturn the juvenile court's conclusion that hearsay evidence was admissible unless the court has abused its discretion." (Cindy L., supra, 17 Cal.4th at p. 35.) Here, substantial evidence supported the court's implied findings that the statements in the DVD bore sufficient indicia of reliability and were corroborated. The court did not abuse its discretion in admitting and relying upon the statements recorded on the DVD.
Noting the distinction highlighted in Lucero L., supra, 22 Cal.4th at page 1244, between the " 'admissibility and substantiality of hearsay evidence,' " appellant argues that even if the DVDs were properly admitted, there was not substantial evidence to support jurisdiction. Lucero L. explained that " ' "[m]ere uncorroborated hearsay or rumor does not constitute substantial evidence." There must be substantial evidence to support such a . . . ruling, and hearsay, unless specially permitted by statute, is not competent evidence to that end.' (Walker v. City of San Gabriel (1942) 20 Cal.2d 879, 881, overruled on other grounds in Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 37, 44; see also Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 537.) Except in those instances recognized by statute where the reliability of hearsay is established, 'hearsay evidence alone "is insufficient to satisfy the requirement of due process of law, and mere uncorroborated hearsay does not constitute substantial evidence. [Citation.]" ' (Gregory v. State Bd. of Control [(1999)] 73 Cal.App.4th [584,] 597; see also Armistead v. City of Los Angeles (1957) 152 Cal.App.2d 319, 324.)" (Lucero L., supra, 22 Cal.4th at p. 1244.)
Appellant's challenge to the substantiality of the evidence provided by the children's statements rests on his view that the statements were unreliable and uncorroborated. We have concluded, to the contrary, that substantial evidence supports the trial court's implied findings that the statements were both reliable and corroborated by other evidence as described above. The evidence supplied by T.K.'s interview, along with the evidence of S.K.'s regression, T.K.'s emotional response to visitation with and being touched by his father, and the mother's initial disbelief of the allegations, provided substantial evidence supporting the court's decision to sustain the sexual abuse allegations.
Appellant additionally asserts that because the sole evidence of the boys' statements about the alleged abuse was the recorded interviews, we should not apply the usual rule that a reviewing court defers to the trial court's assessment of the credibility of witnesses and weight of the evidence. Appellant correctly maintains that this court is in the same position as the juvenile court with respect to evaluating the evidence presented on the DVD recording of T.K.'s interview. (See In re Avena (1996) 12 Cal.4th 694, 710 [on appeal from rulings of referee who reviewed transcript rather than observing witnesses, "arguable" that deference reviewing court would ordinarily give rulings of fact inappropriate]; Lilly v. Virginia (1999) 527 U.S. 116, 136 [appellate courts do not defer to trial court determination whether hearsay statement has particularized guarantees of trustworthiness pre-Crawford].) The point does not help appellant: Having reviewed the DVD of T.K.'s interview, we find no reason to question the child's credibility and reach the same conclusion as the juvenile court.
C.
The petition was sustained not only on the basis of sexual abuse of the children but also, under section 300, subdivision (b), due to domestic violence between appellant and his girlfriend. The evidence of domestic violence consisted of T.K.'s statements in his CASARC interview and subsequent similar statements to social worker Culwell. Appellant argues that the child dependency exception does not apply to hearsay evidence concerning domestic violence because the justification for this exception is limited to cases of child sexual abuse.
Appellant's argument is built upon the fact that the cases in which the child dependency exception was developed involved and are phrased in terms of sexual abuse. Lucero L., supra, 22 Cal.4th at page 1238, reiterated the rationale for the exception: " '[T]here is a substantial need for the class of hearsay evidence contained in the child dependency exception. As the Carmen O. court and the sources on which it relied recognize, there are particular difficulties with proving child sexual abuse: the frequent lack of physical evidence, the limited verbal and cognitive abilities of child victims, the fact that children are often unable or unwilling to act as witnesses because of the intimidation of the courtroom setting and the reluctance to testify against their parents. [Citation.] Given these realities, the categorical exclusion of child hearsay, or admission only if the hearsay fits within traditional yet narrow categories such as the 'spontaneous utterance' exception, will often mean the exclusion of significant, reliable evidence required for the juvenile court to assert its jurisdiction over the child and to ultimately protect him or her from an abusive family relationship.' (Cindy L., supra, 17 Cal.4th at p. 28, fn. omitted.)"
While the exception was created in cases involving sexual abuse of a child, Lucero L. summarized it in more general terms: "In [Cindy L., supra,] 17 Cal.4th 15 . . . we recognized a child dependency exception to the hearsay rule, providing that the out-of-court statements of children who are subject to juvenile dependency hearings pursuant to Welfare and Institutions Code section 300 may be admitted in that proceeding if the statements show particular indicia of reliability, if the statements are corroborated, and if interested parties have notice that the statements will be used. (Cindy L., at p. 29.)" Lucero L., supra, 22 Cal.4th at p. 1231, fn. omitted.) Logically, the problems of proof described above with respect to sexual abuse could apply with any form of abuse of a young child that does not result in physical injuries or visible marks. One leading authority on child dependency law has stated that "the better view is that Cindy L. merely described the exception in terms of sexual abuse because that was the type of case it was considering at the time, and not because it was limiting the exception to any particular form of abuse." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017 ed.) § 2.110 [13].)
The authors explained, "Although Carmen O. involved sexual abuse, the court of appeal did not limit the exception it created to sexual abuse cases. In Cindy L., however, the Supreme Court described the exception as one allowing the admission of a child's hearsay statements in sexual abuse cases ([Cindy L., supra,] 17 Cal. 4th [at pp.] 18, 28.) It does do that. But there are also other circumstances in which a child's hearsay statements may be reliable, not fit a statutory exception to the hearsay rule, and be both appropriate and needed for the dependency litigation, yet not involve sexual abuse. Elsewhere in the Cindy L. opinion, the Court stated 'the requirement of corroboration will make the rule in this state regarding the admission of child hearsay statements consistent in both criminal and dependency proceedings.' ([Cindy L., at p. 30], citing Evid. Code, § 1360.) Evidence Code section 1360 is not limited to sexual abuse cases, but instead applies when the statement of the child describes 'any act of child abuse or neglect performed with or on the child by another' or any such act attempted by another. Thus, if consistency was a goal, the child dependency hearsay exception should not be limited to cases involving sexual abuse." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 2.110 [13].) The authors went on to observe that Lucero L. described the Cindy L. holding in terms not limited to sexual abuse and that "the Basilio T. case, which essentially started the line of cases leading up to Carmen O. and the creation of the child dependency hearsay exception, was a case involving domestic violence, not sexual abuse. (In re Basilio T. (1992) 4 Cal.App.4th 155, 160 [four-year-old child stated, 'My mom and dad fight. I saw blood'].)" (Seiser & Kumli, supra, § 2.110 [13].)
We need not resolve this question in the present case. As explained above, the statements T.K. made in his interview about appellant and appellant's girlfriend fighting, pushing and hitting each other, as related in the social worker's report, were admissible under section 355, as were the statements the report related T.K. making directly to the social worker.
From the DVD recording, it appears that the disclosure of domestic violence was completely spontaneous. This was not part of what the mother described in initially reporting to CPS the boys told her about appellant's conduct. During the interview, when asked who his father lived with, T.K. said, "with me, and then sometimes his girlfriend comes over." After some discussion of T.K.'s schedule for time with each of his parents, the interviewer asked how T.K. liked his father's girlfriend and he replied, "not really." The interviewer responded, "tell me," and T.K. said "because they fight." He elaborated when the interviewer asked what they fought about.
III.
Appellant argues that even if the trial court's findings were supported by substantial evidence, they do not support jurisdiction under section 300, subdivision (d), because there is insufficient evidence that he acted for the purpose of sexual arousal or gratification.
As alleged in the petition, subdivision 300, subdivision (d), provides that a child may be found a dependent of the juvenile court if he or she "has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in subdivision (b) of section 11165.1 of the Penal Code, by his or her parent. . . ." As relevant here, the referenced statute provides: "As used in this article, 'sexual abuse' means sexual assault or sexual exploitation as defined by the following: . . . [¶] (b) Conduct described as "sexual assault" includes, but is not limited to, all of the following: . . . [¶] (4) The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose." (§ 11165.1, italics added.)
The statute further defines "sexual assault" as "conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), Section 264.1 (rape in concert), Section 285 (incest), Section 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), Section 288a (oral copulation), Section 289 (sexual penetration), or Section 647.6 (child molestation)." (§ 11165.1, subd. (a).) "Conduct described as 'sexual assault' " includes, in addition to the conduct described in the text, "[p]enetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen," "[s]exual contact between the genitals or anal opening of one person and the mouth or tongue of another person," "[i]ntrusion by one person into the genitals or anal opening of another person, including the use of an object for this purpose, except that, it does not include acts performed for a valid medical purpose," and "[t]he intentional masturbation of the perpetrator's genitals in the presence of a child." (§ 11165.1, subd. (b)(1), (b)(2), (b)(3), (b)(5).
The juvenile court sustained allegations that the children had been, or there was a substantial risk they would be, sexually abused in that T.K. stated in his interview that appellant "put his hand inside [T.K.'s] underwear and squeezed and tugged his 'pee-pee' " and "did the same thing" to S.K., and that S.K. "came home stating that [appellant] pulled on his 'pee-pee' during his visits." The court's judgment states that the court "found true . . . that father sexually abused both [T.K.] and [S.K.] in that he touched their penises in a parking lot before going to see Santa in December 2015, and that he also touched their penises during their visits with him." Neither the allegations nor the judgment expressly refer to appellant's intent in touching the children, but both implicitly include a finding of the requisite intent by referring to "sexual abuse."
" 'Because intent can seldom be proved by direct evidence, it may be inferred from the circumstances. [Citations.]' (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.)" (People v. Mullens (2004) 119 Cal.App.4th 648, 662; In re Mariah T. (2008) 159 Cal.App.4th 428, 440.) "[T]he 'circumstances' which bear on the 'sexual' nature of the encounter are those facts which indicate that the actor touched the child in order to obtain sexual gratification." (People v. Martinez (1995) 11 Cal.4th 434, 450, fn. 16.) Circumstances considered in determining whether an act was performed with the requisite intent include such factors as the act itself, the relationship of the parties, whether secrecy was associated with the conduct, and "the presence or absence of any nonsexual purpose." (Id. at pp. 445, 450 & fn. 16.)
"The standard of proof at the jurisdictional stage of a dependency proceeding is a preponderance of the evidence, and we will affirm the court's findings if they are supported by substantial evidence. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.)" (In re Mariah T., supra, 159 Cal.App.4th at p. 438.) Appellant argues that the record is devoid of direct or circumstantial evidence of sexual intent because appellant was simply "bathing his uncircumcised children and changing their clothing for a visit to Santa," conduct that "could fall within the range of normal caretaking responsibilities." Appellant points out that the boys were not asleep when the alleged touching occurred and there was no secrecy associated with it (compare id. at p. 440 [mother's boyfriend lay down next to sleeping child, fondled thigh near her crotch, and when she awoke signaled for her to be quiet]), one incident took place in a public parking lot, T.K.'s therapist did not make a report to CPS and Sergeant Wong determined that no criminal investigation was warranted.
Appellant's argument is in essence an invitation for us to reweigh the evidence that was before the juvenile court, which we cannot do. (In re Jordan R. (2012) 205 Cal.App.4th 111, 135.) No doubt a parent may have occasion to touch the genitals of a young child in the context of routine hygiene; hence the explicit exclusion in section 11165.1, subdivision (b)(4), for "normal caretaker responsibilities." Perhaps a father washing his son's penis might be described by the child as "playing with" it. But it is difficult to reconcile the other words T.K. used to describe what appellant did— "pulling" and "squeezing" his "pee-pee" or "private" —with normal washing in the bath or shower. T.K. himself made this distinction, telling the interviewer that in the shower appellant "started washing my private and then he put his hand and he started playing with it," "squeezing it and then like doing that with it [demonstrating outside frame of video]." It is even harder to reconcile T.K.'s descriptions with normal clothes changing: T.K. said that while changing his pants in the Nordstrom garage, appellant put his hand inside T.K.'s underwear and was "playing with," "squeezing" and "touching" his "pee-pee," and did the same thing to S.K., and that on another occasion he saw appellant "squeezing" S.K.'s "pee-pee" while putting on S.K.'s pajama bottoms. Even putting aside the fact that T.K. was seven years old and, presumably, capable of changing his own pants, neither changing the pants of a seven-year-old boy nor putting on the pajamas of a three-year-old would involve squeezing the child's penis. Both boys protested appellant touching their penises. We fail to discern a "nonsexual" purpose for the conduct T.K. described.
The other factors appellant cites fall far short of compelling us to reject this substantial evidence supporting the juvenile court's findings. Appellant implies that if he had in fact done what T.K. described, the child would have told his therapist and she would have called CPS. As earlier discussed, however, T.K. may have believed his complaints about his father's bathing practices amounted to disclosing the abuse. Smith testified that she suspected sexual abuse, that there were "red flags," but she did not have sufficient information to make a CPS report. That T.K. did not expressly disclose the abuse to Smith may be a circumstance worthy of the fact-finder's consideration, but it does not necessarily undermine the validity of T.K.'s statements in the interview or to the social worker. The same is true of the circumstance that T.K. described molestation occurring in a public parking garage: While the scenario might seem unlikely, there was no testimony as to how many other people were in the garage at the time or how visible T.K. and appellant would have been if any were present, and, in any event, the unlikelihood of the scenario is not dispositive. As for the decision not to pursue a criminal case, Wong testified that because of the "sheer volume" of cases in his unit, the "solvability" of a case was "weighed heavily" in determining whether to pursue a criminal investigation. A criminal case would have to be proved beyond a reasonable doubt, a far more exacting standard than the preponderance of the evidence required for dependency jurisdiction.
Substantial evidence supports the juvenile court's decision to take jurisdiction under section 300, subdivision (d).
Appellant does not argue that the court's findings do not support jurisdiction under section 300, subdivision (b). In any case, we would affirm "if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
IV.
Appellant challenges several of the juvenile court's other evidentiary rulings. He contends the court erred in permitting social worker Culwell to testify as to her opinion on whether T.K.'s statements had been coached or coerced, in precluding appellant from cross-examining Smith based on her and the children's assertion of psychotherapist/patient privilege, in refusing to allow appellant to present a witness on his behalf or to introduce documentary evidence, and in excluding evidence of appellant's polygraph examination without first conducting an evidentiary hearing.
"A trial court's ruling on the admission or exclusion of evidence is reviewed for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.)" (People v. DeHoyos (2013) 57 Cal.4th 79, 130-131.) " ' " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. . . ." ' " ' (In re Cole C. (2009) 174 Cal.App.4th 900, 911 (Cole C.).)" (In re S.A. (2010) 182 Cal.App.4th 1128, 1135.)
A.
At the jurisdiction hearing, Culwell testified that she had been a child welfare worker for some 19 years, had a master's degree in social work and had been involved in at least 50 sexual abuse cases during her career. After confirming that she had talked to the mother about the allegations in this case, she was asked, "based on your experience, do you have any evidence that mother has in fact coached particularly [T.K.] to make these allegations." She responded, "I don't have any evidence that would lead me to believe that [T.K.] had been coached or coerced." (Italics added.) Culwell was then asked what behaviors T.K. had exhibited that caused her concern and responded by referring to the occasion on which T.K. became "hysterical" at having a visit with appellant and to his appearing anxious, as indicated by his having "a lot of hand movements" and being "kind of jittery in the chair" and seeming "unsure of why [Culwell] was coming around." Culwell was also asked, based on her experience and training, whether there are "symptoms or hallmarks or behaviors that you look to as evidence of child sex abuse," and she replied, "yes." She testified that the regression in toilet training the mother reported in S.K. was one of the symptoms of sexual abuse, especially in a child of his age group. After Culwell testified that T.K. appeared to be angry during the initial visit she observed, "pulling away" when appellant tried to hug him and holding "his arms at his side," she was asked, "So again, based on your 19 years' experience and dozens of investigations of child abuse, is [T.K.'s] behavior consistent with a child who was sexually abused?" (Italics added.) She replied, "Yes."
Appellant argues the juvenile court erred in allowing Culwell to testify "that T.K. had not been coached or coerced" and "that he was a child who had been sexually abused." Appellant maintains that the first of these statements constituted improper vouching as to T.K.'s and the mother's credibility, as Culwell did not observe the mother's conversations with T.K. and the testimony provided a basis for inferring that the mother and T.K. should be believed because the mother did not coach the child.
"Lay opinion about the veracity of particular statements by another is inadmissible on that issue" because, "[w]ith limited exceptions, the fact finder, not the witnesses, must draw the ultimate inferences from the evidence. Qualified experts may express opinions on issues beyond common understanding (Evid. Code, §§ 702, 801, 805), but lay views on veracity do not meet the standards for admission of expert testimony. A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where 'helpful to a clear understanding of his testimony' (id., § 800, subd. (b)), i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. (People v. Hurlic (1971) 14 Cal.App.3d 122, 127; see Jefferson, Cal. Evidence Benchbook (1972) § 29.1, pp. 495-496.) Finally, a lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence (Evid. Code, § 780, subd. (e)), nor does it bear on any of the other matters listed by statute as most commonly affecting credibility (id., § 780, subds. (a)-(k)). Thus, such an opinion has no 'tendency in reason' to disprove the veracity of the statements. (Id., §§ 210, 350.)" (People v. Melton (1988) 44 Cal.3d 713, 744-745 (Melton).)
Culwell's testimony, however, did not express an opinion as to the mother's or T.K.'s credibility in the manner discussed in Melton and People v. Sergill (1982) 138 Cal.App.3d 34 (Sergill), the other case upon which appellant relies. In Sergill, police officers who had interviewed the child who reported having been sexually abused by her uncle and expressly testified that, in their opinions, the child was telling the truth. (Id. at p. 38.) In Melton, a murder prosecution, the defense investigator testified that the main prosecution witness, Boyd, told him a person named Charles had been involved in the murder; on cross-examination, the investigator testified that he did not attempt to find Charles because Boyd's information was " 'not of sufficient quality' to launch an investigation." (Melton, supra, 44 Cal.3d at pp. 728, 742.) The Melton court viewed this testimony as intended only to provide the investigator's opinion that Boyd was not credible, because evidence that the investigator did not follow up on Boyd's information in and of itself had no tendency in reason to establish that Charles did not exist or was not responsible for the murder. (Id. at p. 744.)
Culwell did not testify that she believed the mother and T.K. were telling the truth or even that she did not believe the mother had coached or coerced T.K. Nor did she testify, as appellant claims, that "T.K. had not been coached." Culwell testified that she did not have evidence that would lead her to believe T.K. had been coached or coerced. Unlike the opinion evidence in Melton and Sergill, Culwell's testimony referred to the state of the evidence on the question and left it to the trier of fact to determine whether in fact T.K. was coached.
Appellant also mischaracterizes the other portion of Culwell's testimony that he challenges. Culwell did not testify that T.K. "was a child who had been sexually abused," but rather that the behaviors she saw him exhibit were "consistent with" a child who has been sexually abused. Again, this was not an expression of opinion as to whether the mother or T.K. was telling the truth but rather an interpretation of behavior Culwell observed. A lay witness "may provide an opinion if it is rationally based on what he or she perceived and if it is helpful to a clear understanding of the testimony." (People v. Houston (2012) 54 Cal.4th 1186, 1221 [(Houston)]; Evid. Code, § 800.) Culwell had been involved in over 50 child sexual abuse cases over the course of some 19 years as a child welfare worker. She observed behaviors in T.K. that, based on her experience, she believed to be consistent with behaviors exhibited by a child who had been sexually abused. That her testimony may have implied she believed the abuse allegations were true does not amount to offering an opinion as to the credibility of T.K.'s or the mother's statements. (See Houston, at pp. 1221-1222 ["Although [the witness's] belief about what information defendant would have shared with him, coupled with the fact that defendant did not share such information, might have implied that [the witness] thought defendant's molestation allegations were false, he did not actually offer an opinion on this ultimate issue of fact."].)
Moreover, if we were able to construe Culwell's testimony as impermissible opinion testimony, we would not find it prejudicial. The Sergill court found the police officers' improper express opinion testimony prejudicial because there were inconsistencies in the child victim's multiple accounts of the incident and between her account and her mother's, there was animosity among the family members, medical evidence was not dispositive, and the trial court's comment that one of the officers was "especially qualified" to give an opinion as to whether a person reporting a crime was telling the truth, along with the officer's testimony that he was usually accurate in determining whether a child was telling the truth, might have caused the jury to "place undue emphasis on the officers' testimony." (Sergill, supra, 138 Cal.App.3d at p. 41.) Melton found the error in admitting opinion evidence was not prejudicial because the investigator had earlier testified that he did not attempt to locate Charles because the information Boyd gave him was "fragmentary"; this testimony was properly admitted because the lack of detail in the information was relevant to its credibility, and "[a]ny further implication that [the investigator] simply disbelieved Boyd was minimal in context." (Melton, supra, 44 Cal.3d at p. 745.)
Here, any implication that Culwell "simply believed" T.K. and the mother were truthful was refuted by her testimony that she did not have evidence suggesting T.K. had been coached and that the behaviors she saw T.K. exhibit were "consistent with" a child who had been sexually abused. Unlike Sergill and Melton, this was not a criminal case tried by a jury. Before reaching its decision, the juvenile court judge spent "many hours" reviewing the testimony, reviewed the exhibits and "reviewed the CASARC interview several times." It is clear the court reached its own conclusion on the question whether the allegations had been proven by a preponderance of the evidence, and there is no reasonable probability its decision would have been different if it had not admitted the challenged testimony.
B.
Appellant contends the juvenile court abused its discretion in precluding him from cross-examining Smith based on Smith's and the children's assertion of the psychotherapist-patient privilege (Evid. Code, § 1014). He argues that the privilege was waived because Smith discussed T.K.'s therapy with the social workers without asserting privilege and neither Smith nor the children's attorney asserted privilege when the Agency reports relating Smith's statements were disseminated. Appellant maintains that he was denied due process in that he was prevented from fully cross-examining Smith.
Smith testified as appellant's witness and the trial court viewed appellant's attorney's questioning as direct examination.
During the proceedings, the court granted a motion to quash filed by the children's attorney in response to appellant's subpoena duces tecum seeking production of T.K.'s medical records, including Smith's therapeutic notes, on the ground that the subpoena was defective for failure to follow required procedures. Appellant wanted Smith's notes for purposes of cross-examining her in areas where appellant's believed the psychotherapist/patient privilege had been waived. The court's ruling on the motion to quash is not at issue on this appeal.
Appellant does not specify any particular testimony he was precluded from eliciting, but the record reflects that the court sustained objections on grounds of privilege, or permitted the assertion of privilege, with respect to questioning about what was discussed and done during therapy in three areas. First, with respect to T.K.'s lying, the court sustained privilege objections or allowed Smith to assert privilege when counsel asked Smith whether the mother had requested that she "address issues of lying" with T.K., whether she had communicated to the social workers that she was "working on [T.K.'s] lying," and whether she talked with T.K. about the problem of lying about things that happened at his father's house. Second, the trial court sustained privilege objections when appellant's attorney asked Smith whether T.K. ever told her his father had choked him. Third, the trial court sustained objections or allowed Smith to assert privilege when she was asked whether she asked T.K. if his father had "inappropriately touched him," whether T.K. told her anything about his father "inappropriately touching him," and whether she did a "touch assessment" with T.K.
"Evidence Code section 1014 provides that a patient has a privilege to refuse to disclose, and to prevent another from disclosing, confidential communication between the patient and his or her psychotherapist." (N.S. v. Superior Court (2016) 7 Cal.App.5th 713, 718-719.) " 'It is established that the psychotherapist-patient privilege applies to the relationship between a dependent minor and his or her therapist. [Citations.] "[T]he purpose of the privilege is to protect the privacy of a patient's confidential communications to his [or her] psychotherapist. [Citations.]" ' " (In re S.A., supra, 182 Cal.App.4th at p. 1135, quoting Cole C., supra, 174 Cal.App.4th at p. 910.)" " '[O]nce an attorney has been appointed for a minor in a juvenile dependency matter, the attorney holds the privilege to therapeutic communications sought to be introduced in evidence.' ([Cole C.], at p. 911.)" (In re S.A., at p. 1136.) " '[T]he psychotherapist-patient privilege is to be liberally construed in favor of the patient.' " (People v. Wharton (1991) 53 Cal.3d 522, 554, quoting Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)
Appellant's contention that the privilege was waived by Smith's disclosures to the Agency social workers and the family court evaluator regarding T.K.'s statements in therapy is not persuasive. The right to claim the psychotherapist-patient privilege "is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege." (Evid. Code, § 912.) But "[w]here two or more persons are joint holders of a privilege provided by Section . . . 1014 (psychotherapist-patient privilege) . . . , a waiver of the right of a particular joint holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege." Smith's discussions with the social workers and the family court evaluator could not waive T.K.'s right to claim privilege (In re S.A., supra, 182 Cal.App.4th at pp. 1137-1138), which he did at the jurisdictional hearing through his attorney (§ 317, subd. (f).)
Section 317, subdivision (f), provides in pertinent part: "Either the child or counsel for the child, with the informed consent of the child if the child is found by the court to be of sufficient age and maturity to consent, . . . may invoke the psychotherapist-client privilege, physician-patient privilege, and clergyman-penitent privilege. If the child invokes the privilege, counsel may not waive it, but if counsel invokes the privilege, the child may waive it. Counsel shall be the holder of these privileges if the child is found by the court not to be of sufficient age and maturity to consent."
The discussion of waiver of privilege in appellant's briefs primarily focuses on Smith's discussion of T.K.'s therapy with the social workers, arguing that Smith could not claim privilege at the jurisdiction hearing because she did not do so before speaking with the social workers. Appellant also states that the privilege was waived by T.K.'s failure to object when the Agency's reports—which related Smith's statements about T.K.'s therapy— "were disseminated." When this argument was pressed below, counsel for the children maintained she was not required to raise the issue until there was an attempt to bring privileged material before the court.
The statutory authorities appellant cites in support of this argument do not directly address the question. Section 317, subdivision (f), as we have said, provides that the child or child's counsel may invoke the privilege, and that counsel may not waive it if invoked by the child but the child may waive it if invoked by counsel; the statute does not address when the privilege must be invoked to avoid a waiver. Evidence Code section 1014 establishes the privilege, "[s]ubject to [Evidence Code] section 912." Section 912 provides that the privilege is waived if the holder of privilege discloses "a significant part of the communication" or consents to disclosure, and that consent may be manifested by statements or conduct indicating consent. The only indication in the statutory language as to when failure to object waives the privilege is in the statute's specification that conduct indicating consent includes "failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege." (Evid. Code, § 912, subd. (a).) T.K. and his attorney did not disclose any of the child's communications with his therapist, and did claim the privilege in the juvenile court proceedings.
In re S.A., supra, 182 Cal.App.4th at page 1137, which appellant also cites in support of his argument that T.K. waived the privilege by failing to object when the Agency's reports were disseminated, does not address the issue. In that case, the jurisdiction report and a police investigator's report related that the minor's therapist had told the social worker and police that the minor never revealed having been abused by her father and that the therapist did not believe her story. (Id. at pp. 1132-1133.) Based on the minor's invocation of the psychotherapist-patient privilege, the court struck the therapist's statements from the reports and limited her trial testimony. (Id. at p. 1133.) In re S.A. rejected appellant's argument that the psychotherapist-patient privilege had been "forfeited" by not being timely raised, noting that counsel raised the issue at the detention hearing and the child invoked privilege at the jurisdiction hearing when appellant tried to introduce the therapist's statements. (Id. at p. 1137.)
As discussed in In re S.A., Cole C. also rejected an argument that the psychotherapist-patient privilege was not timely raised. No objection was raised by the minors' counsel when a letter from the therapist was submitted to the court in connection with a motion, or to the inclusion of the therapist's statements in the Agency's report. Two months later, three days after witness lists were submitted that included the therapist, the minors' counsel asserted privilege and the court struck the letter and limited the therapist's testimony. (Cole C., supra, 174 Cal.App.4th at p. 910.) Cole C. found the assertion of privilege timely, noting that it was raised at the beginning of the jurisdiction and disposition hearing and three days after submission of the witness lists, which was "well in advance" of the therapist being called to testify. (Id. at p. 912, fn. 4.)
In both In re S.A. and Cole C., the fact that the minors did not raise a privilege objection to therapists' statements in the Agency's reports was not taken as a waiver of the privilege; the courts determined the timeliness of the invocation of privilege based on when it was asserted with respect to testimony to be given at the hearing. This is consistent with the provision in section 912, subdivision (a), that privilege is waived when the holder of the privilege fails to claim it "in any proceeding in which the holder has legal standing and the opportunity to claim the privilege." (§ 912, subd. (a).) " '[T]he holder of the privilege is determined at the time the disclosure of the confidential communications is sought to be introduced in evidence.' " (In re S.A., supra, 182 Cal.App.4th at p. 1136, quoting Cole C., supra, 174 Cal.App.4th at p. 911.) Appellant has not claimed that the privilege was not timely asserted in the proceedings below, only that it was waived by Smith's discussions with the social workers and family court evaluator and T.K.'s failure to object to the reports that related Smith's statements.
"Proceeding" means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given. (Evid. Code, § 901.)
We find no error. Moreover, we find no basis in the record for appellant's claim that it is reasonably probable a result more favorable to him would have been reached if he had been able to fully cross-examine Smith. Appellant does not explain his prejudice argument except to state that it is reasonably probable he would have obtained a more favorable result with full cross-examination "especially since Smith was [T.K.'s] treating psychologist and she never filed a CPS report." Unlike the situations in In re S.A. and Cole C., in the present case, the court was not asked to and did not strike the portions of the Agency's reports describing Smith's statements to the social workers, nor was Smith precluded from testifying. The court was made fully aware that T.K did not directly disclose sexual abuse to Smith and that Smith did not file a CPS report, and Smith explained that, as a mandatory reporter, her not making a report meant she did not have the "reasonable suspicion" that would trigger her obligation to report. Smith also testified that the fact she did not make a CPS report did not mean she was not concerned about possible abuse, and that in fact she did suspect sexual abuse: She testified that her concern was demonstrated by the facts that she considered making a CPS report, she conducted a touch assessment because of concern about possible abuse, and she discussed her concerns about "possible inappropriate touch" with social worker Malcolm and with the family court evaluator, whom she asked to "check in on the touch, specifically about the bathing practices." In light of this testimony, it is difficult to imagine why appellant would expect to have achieved a more favorable result if he had been able to further cross-examine Smith further "especially since Smith was T.K.'s treating psychologist and she never filed a CPS report."
With respect to the other areas in which privilege issues were raised, Smith testified that one of the treatment goals in T.K.'s therapy was to address "two types of lying"—not saying what he did at appellant's house and lying about where gifts came from. Thus, while appellant was prevented from eliciting Smith's testimony about her conversations with the mother, the social workers and T.K. about T.K.'s "lying," the court was informed both that lying was one of the issues in T.K.'s therapy and that the problem was with two specific types of lying.
Regarding the alleged choking incident in January 2016, while the invocation of privilege prevented appellant from eliciting testimony about what T.K. did or did not tell Smith, Smith testified that she was not contacted by CPS about the incident and that the family court evaluator told her about it. This incident was not directly at issue in the present case. The potential significance of any testimony that T.K. did or did not discuss the incident in his therapy with Smith would have been minimal as compared with the evidence bearing directly on the allegations of sexual abuse and domestic violence.
C.
Appellant argues that the juvenile court abused its discretion in denying him his right to call a witness to testify in his favor. Appellant sought to have the witness, the children's former teacher and currently T.K.'s tutor, testify about the domestic violence allegations and appellant's parenting. Counsel for the mother, the Agency, and the children objected that the witness could offer nothing relevant to the issues and the court agreed that it did "not see the relevance given what's at stake here."
Appellant frames this issue as directed also at the court's exclusion of proffered documentary evidence but his briefs discuss only the admissibility of the witness's testimony, not that of the documents. The documents, primarily letters attesting to his good character, love for the boys and excellent parenting of them, were submitted in conjunction with his trial brief as "Supporting Documents to be Proffered at Trial." Appellant cites to the court's exhibit record to demonstrate that they were not admitted; the exhibit record does not refer to them, and appellant does not point to any record of them being offered into evidence and excluded. As appellant has not supported the portion of his argument concerning the documents with argument or citation to authority, we do not address it further. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784.)
As described by appellant's attorney, the witness was a teacher at the Montessori school both boys attended before their present school and knew the parents from that, and had been tutoring both boys but primarily T.K., at appellant's house, on a regular basis. Counsel represented that "[s]he would testify about some of the allegations related to the domestic violence and the parenting by appellant. She's also a mandated reporter. . . . She also has evidence . . . about the current school; about the prior school where there's also no problems; very good kids; good parents; no inappropriate sexual abuse of any kind; nothing giving rise to any mandated report."
Recognizing courts' wide discretion over the admission of evidence (People v. Lawley (2002) 27 Cal.4th 102, 155), appellant argues that the testimony the proposed witness would have given was relevant and admissible, and, with respect to the juvenile court's discretion to exclude evidence under Evidence Code section 352, that it would not have "necessitate[d] an undue consumption of time" or "create[d] substantial danger of undue prejudice" or "of confusing the issues." (Evid. Code, § 352.)
People v. McAlpin (1991) 53 Cal.3d 1289, which appellant cites as authority in asserting his witness's evidence was relevant and admissible, reviewed the trial court's refusal to allow the testimony of several proposed character witnesses. The defendant, charged with sexually molesting the daughter of the woman he was dating, sought to call three witnesses to testify that he was not a "sexual deviant": A male friend who had met many of the women the defendant dated, and two women, each of whom had dated the defendant for about six months and each of whom had a daughter. McAlpin held that the trial court properly excluded the testimony of the male friend as to his observations of the defendant's "assertedly normal sexual conduct with adult women" and that of the women to the extent it was based on their "assertedly normal personal sexual experiences" with the defendant. (Id. at pp. 1308-1309.) Opinion testimony of lay witnesses must be based on personal perception (Evid. Code, § 800, subd. (a)), and the just-described testimony would not have been based on the witnesses' observation of the defendant's conduct with children. (McAlpin, at pp. 1307-1309.) The trial court erred, however, in excluding testimony by the two women based on their observation of the defendant's conduct with their daughters during the period of their relationships with the defendant, because this evidence was a proper subject of lay opinion testimony and relevant to the charge of child molestation. (Id. at p. 1309.)
Here, the proposed testimony did not directly address the disputed issues in the case. The proposed witness was to testify that she did not observe appellant engage in sexual molestation of the children or in domestic violence, and that based on her observation of him with the children, he was a loving and caring father. The witness's observations of appellant and his children occurred at the school where she worked, when the children attended that school, and in appellant's home during her tutoring sessions. Given this limited context, the witness was not in a position to know what occurred between appellant and the children outside her presence—that is, the majority of the time. The point of her testimony was to provide the court with evidence that appellant was such a good and loving father that he could not have engaged in the alleged conduct. But even if she had been allowed to give this testimony, there is no reasonable probability the court would have reached a different result. Contrary to appellant's assertion that the court did not consider "the serious nature of the child molestation and domestic violence allegations," the court stated at the conclusion of the evidentiary portion of the proceedings (which spanned four days from late May to early August) that the case was "very serious" and the court wanted to "give it every consideration"; after hearing arguments, the court stated that although it had reviewed the hearing transcripts once, it wanted to do so again and also review the CASARC recording before reaching a decision, and it noted before rendering its decision that it had spent "many hours" reviewing the evidence and watched the children's recorded interviews several times. It is apparent that the court recognized the critical question was the credibility of T.K.'s statements about the sexual conduct and the domestic violence. In light of the factors we have previously discussed indicating the reliability of those statements, there is no reasonable probability that the court would have reached a different conclusion on the basis of evidence from the boys' tutor that appellant was a superb and loving father.
Appellant quotes the court's observations in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1752, 1754, that "[f]ew crimes carry as much (or as much deserved) social opprobrium as child molestation" and "[t]he hearing on a contested petition alleging child sexual abuse is thus, to repeat, extraordinarily important. It is not the sort of thing to be rushed, or taken routinely. Allegations of child molestation are serious; they merit more than a rubber stamp. With the exception of death penalty cases, it is hard to imagine an area of the law where there is a greater need for reliable findings by the trier of fact. The consequences of being wrong—on either side—are too great."
D.
Appellant contends the trial court erred in excluding evidence that he passed a polygraph test without first holding an evidentiary hearing. Prior to the jurisdiction hearing, in his supplemental trial brief, appellant asserted that he had passed a polygraph examination on April 17, 2016, in which he answered "no" to the questions whether he had ever touched either of his children in order to arouse himself, whether he had ever touched either child on the penis other than for normal hygiene, whether he had pulled down T.K.'s pants and touched his penis before taking pictures with Santa in December, and whether he had ever touched S.K's penis other than for normal care. The polygraph examiner's report, finding "No Deception Indicated," was submitted to the court as a "document proffer" filed simultaneously with the trial brief.
The mother filed a response challenging appellant's attempt to put the polygraph test results before the court as an improper attempt to bias the court with inadmissible evidence, as polygraph evidence is admissible only by stipulation of all the parties or after the proponent of the evidence petitions the court for a foundational hearing to determine the validity of the evidence. At the outset of the jurisdiction hearing, the other parties joined the objection, arguing that appellant was required to request a foundational hearing before providing the test results to the court. Appellant's attorney argued that the trial brief was "akin to an opening statement," not an offer of evidence, but agreed that a "Kelly" hearing was required and argued that the polygraph test results would be admissible if that foundational requirement was met. The court excluded the polygraph evidence, stating "I think it was improper how it was presented to the court and its excluded."
People v. Kelly (1976) 17 Cal.3d 24.
"The admissibility of polygraph evidence has long been an issue in federal and state courts. (United States v. Scheffer (1998) 523 U.S. 303, 309-312 (Scheffer) [discussing controversy in state and federal courts concerning both the admissibility and reliability of polygraph examination]; People v. Wilkinson (2004) 33 Cal.4th 821, 850 (Wilkinson) [recognizing 'deep division' in scientific and legal community about polygraphy].)" (In re Jordan R. (2012) 205 Cal.App.4th 111, 121 (Jordan R.).) By statute, polygraph evidence is inadmissible in a criminal proceeding (including any trial or hearing of a juvenile for a criminal offense) unless all parties stipulate to its admission. (Evid. Code, § 351.1; In re Kathleen W. (1990) 190 Cal.App.3d 68, 72 (Kathleen W.).) In 2004, the Wilkinson court upheld this categorical exclusion of polygraph evidence against constitutional challenge due to the "continuing division of opinion regarding the reliability of polygraph evidence." (Wilkinson, at p. 851.)
In enacting Evidence Code section 351.1, however, "[t]he Legislature left open the question of use of a polygraph examination in civil and noncriminal juvenile matters." (Kathleen W., supra, 190 Cal.App.3d at p. 72.) "When a party seeks the admission of polygraph evidence at a jurisdictional hearing under section 300, the juvenile court is required to hold a foundational hearing to determine the admissibility of polygraph examination results, if the results of the examination are relevant to the primary issue before the court. (Kathleen W., . . . at pp. 71, 73.) A foundational hearing allows the trial court 'to decide preliminary questions of fact upon which the admissibility of evidence depends.' (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 209, fn. 6, citing Evid. Code, § 402.) In the hearing the proponent of a new scientific procedure must prove three preliminary facts: (1) that the reliability of the scientific technique is generally accepted by recognized authorities in the scientific field(s) in which the technique belongs; (2) that the witnesses giving expert testimony on the acceptance in the relevant scientific communities are qualified experts on the subject; and (3) that correct scientific procedures were used in administrating the scientific technique. (People v. Roybal (1998) 19 Cal.4th 481, 505; Kelly, supra, 17 Cal.3d at p. 30; In re Sara M. (1987) 194 Cal.App.3d 585, 592-593; Seering v. Department of Social Services (1987) 194 Cal.App.3d 298, 310 (Seering); 2 Witkin, Cal. Evidence [(5th ed. 2012)] Demonstrative, Experimental, and Scientific Evidence, § 42, p. 53.)" (Jordan R., supra, 205 Cal.App.4th at p. 122.)
Appellant submitted his polygraph test as a "document proffer" with no express request for a foundational hearing on admissibility and no offer of proof that the "scientific technique is generally accepted by recognized authorities in the scientific fields(s)," that he had qualified experts to testify that it was accepted as a reliable technique, or that correct scientific procedures were used in administering his test. (Jordan R., supra, 205 Cal.App.4th at p. 122.) At the jurisdiction hearing, in response to the objections to appellant's submission of the test results, counsel acknowledged that a Kelly hearing was a prerequisite to admission of the results, but neither asked the court to conduct an evidentiary hearing nor made an offer of proof regarding the Kelly factors.
The juvenile court did not abuse its discretion in excluding the evidence under these circumstances. "Absent an offer of proof that the polygraph is now accepted in the scientific community as a reliable technique, the evidence was presumptively unreliable and inadmissible." (People v. Harris (1989) 47 Cal.3d 1047, 1094.) "[F]or purposes of admission as evidence in legal proceedings [the polygraph] is still 'new' scientific evidence largely because the great weight of case law and literature has shown a lack of general acceptance in the relevant scientific community as to the accuracy, validity, and reliability of the polygraph in determining truth telling and deception in real world situations involving an individual who has a significant stake in the outcome." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 2.110[15].) Even on appeal, appellant makes no suggestion that he would have been able to demonstrate that the reliability of the polygraph is now accepted in the scientific community.
The authors observed, "Whether there ever will be such general agreement regarding the polygraph remains questionable for a variety of reasons including, but not limited to: (1) the polygraph does not measure truth or deception, it measures physiological responses that can be influenced or caused by things other than being untruthful, thus the scientific basis and theoretical rationale for the polygraph are considered by many experts to be weak; (2) many experts also believe polygraph accuracy as cited in studies by proponents of the polygraph are overestimated for real world situations; and (3) with a minimum of education readily available on the Internet and published materials, countermeasures can be learned and practiced that may be effective in enabling a person to 'beat the poly.' (Committee to Review the Scientific Evidence on the Polygraph, The Polygraph and Lie Detection (National Academies Press 2003) ch. 8, pp. 212-231 (Conclusions and Recommendations).)" (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 2.110[15].)
V.
Appellant raises several issues regarding disposition: He claims the juvenile court abused its discretion in failing to order "enhancement services" to which he was entitled; the order dismissing the petition did not comply with statutory requirements; and the order denying him visitation was not supported by substantial evidence. As we will explain, only the visitation issue is properly before us, as appellant forfeited his right to challenge the others by submitting on the Agency's recommendation as to disposition.
"Enhancement services are child welfare services offered to the parent not retaining custody, designed to enhance the child's relationship with that parent. (See In re A.C. (2008) 169 Cal.App.4th 636, 642, fn. 5; see also In re A.L. (2010) 188 Cal.App.4th 138, 142, fn. 2.)" (Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1497, fn. 1.) We are aware of no statutory definition of "enhancement" services. (In re A.L., at p. 142, fn. 2.)
The Agency recommended that the children reside in the mother's home; the petition be dismissed "in favor of legal and physical custody with" the mother; and the case be referred back to family court for recommendations by the court-appointed evaluator as to visitation and services for appellant. The Agency also suggested that appellant complete a "sexual perpetrator assessment" prior to any unsupervised contact with the children.
At the end of the evidentiary portion of the jurisdiction hearing, the court addressed appellant's attorney: "And it's my understanding while we were off the record from [appellant's counsel] that while there was a request that the matter be bifurcated earlier on, that should the court sustain any of the allegations or variations on those allegations, that there would not be a need for a disposition hearing because father would be submitting to the proposed disposition. Is that correct, [counsel]?" Counsel replied, "Yes."
Following arguments on jurisdiction on August 5, counsel reiterated, "I said yesterday and I will reiterate today that part of the recommendation about disposition, not having a full-blown disposition hearing and recommendation, I will submit on that," but stated that she wanted to "advocate for some reasonable visitation" for appellant "if we get to that point." When a question was raised because counsel had previously said appellant was "going to submit on the recommendation in the dispo report[,] not except this," counsel clarified that "it's only the exit order . . . that I am asking to be heard on. That is not a full-blown disposition. If I am submitting on the vacate and dismiss petition with a JV-200, it's only the exit order that is at issue here."
In re Richard K. (1994) 25 Cal.App.4th 580, 590, discussed the significance of a mother submitting on the social worker's "recommendation" rather than "on the report." A parent who submits "on a particular report or record" agrees that the court will consider that information as the only evidence; the court is limited to that record, but "must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved." (Id. at p. 589.) By contrast, "the mother's 'submitting on the recommendation' constituted acquiescence in or yielding to the social worker's recommended findings and orders, as distinguished from mere submission on the report itself. . . . The mother's submittal on the recommendation dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders." (Ibid.) If the court makes the recommended orders, "the party who submits on the recommendation should not be heard to complain. As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware. [Citation.] Similarly, in this case, by submitting on the recommendation without introducing any evidence or offering any argument, the parent waived her right to contest the juvenile court's disposition since it coincided with the social worker's recommendation. He who consents to an act is not wronged by it. [Citation.]" (Id. at pp. 589-590.)
Appellant asserts that he did not submit on the Agency's "recommendations" or otherwise "acquiesce[] in or yield[] to" the social worker's recommendations but only "submitted the evidence to the juvenile court without the need for a dispositional hearing." As described above, the record belies this characterization. Appellant's counsel stated that if the petition was sustained, appellant would submit to the Agency's "proposed disposition" and "recommendation." Counsel represented that a disposition hearing would not be necessary except with respect to the issue of visitation; she expressly referred to submitting to the recommendation to "dismiss" with a custody order, and at one point noted that the court was "not proposing a reunification plan or services." Appellant did not contest any aspect of the recommendation except the no-visitation order and never requested that he be provided services of any kind.
Appellant seeks to avoid forfeiture through the principle that where " ' "the facts are not disputed, the effect or legal significance of those facts is a question of law," which "is not automatically subject to the doctrine of forfeiture." ' " (In re Carl H. (2017) 7 Cal.App.5th 1019, 1036-1037 (Carl H.).) In Carl H., the dependency petition was dismissed after allegations were sustained as to the mother but not as to the father (to whom the mother had given full custody of the child) and the father was given sole physical custody of the child. (Id. at p. 1032.) On the child's appeal challenging dismissal of the petition, the Carl H. court found that the juvenile court erred in dismissing the petition, declining to find the issue forfeited by failure to object. (Id. at pp. 1036, 1039.) The court explained, "We decline to deem this important issue forfeited because it appears that all participants in the proceedings were unclear on the governing law, and an appellate determination on the validity of the dismissal could bear upon whether this child and family get the supervision, support and stability offered by our dependency system." (Id. at pp. 1036-1037.)
Appellant argues the same result should obtain here, for the same reason. The situations in the present case and in Carl H., however, are decidedly not alike. In Carl H., the question whether the petition was to be dismissed was discussed on the record, which reflected that "all participants in the proceedings were unclear on the governing law" in that they believed the court was required by law to dismiss the petition because no allegations had been sustained as to the father, despite some remaining concern over risk to the child. (Carl H., supra, 7 Cal.App.5th at pp. 1036-1037.) In the present case, the record does not suggest the court misunderstood the applicable law. There was no discussion at the hearing on the issue of dismissal; no party suggested that the circumstances did not call for dismissal and, as we have said, appellant affirmatively acquiesced in the dismissal.
We recognize that the juvenile court did not state the statutory basis for the dismissal order or make the findings specified for a dismissal pursuant to section 390, the general dismissal statute discussed in Carl H., supra, 7 Cal.App.5th at page 1038. Had appellant objected to dismissal, both the propriety of the order and the procedural requisites could have been addressed.
More importantly, unlike the situation in Carl H., the dismissal here was consistent with the Agency's view that there was no continuing risk to the children once the mother had sole custody. In Carl H., the child and father lived with a grandmother in whose house another child had died after consuming methadone left within her reach; Carl previously had survived ingesting methadone left within his reach. The allegations of the petition were not sustained as to the father because, in the particular circumstances of the case, the court found there was no longer a risk to Carl in this regard. In explaining why the juvenile court could not properly have dismissed the petition under section 390, which requires findings "that the interests of justice and the welfare of the minor require the dismissal" and "that the parent or guardian of the minor is not in need of treatment or rehabilitation," the Carl H. court noted a host of ways the father had demonstrated inability to properly care for a child, as the social worker had stated. (Carl H., supra, 7 Cal.App.5th at pp. 1034, 1038.) In the present case, by contrast, the Agency did not believe that the children would be at risk once the mother had full custody and there is no indication in the record to the contrary. The risk was due to appellant's sexual molestation of the children, which is why the court ordered that appellant have no visitation. Contrary to appellant's argument, the parents' long-standing and contentious custody battle did not require continuation of dependency jurisdiction once the juvenile court determined that the mother was able to protect the boys. Nor did the social worker's suggestions that appellant should "complete a sexual perpetrator assessment prior to any unsupervised contact" with the children and that appellant would "need assistance with learning to manage parenting two boys at the same time" when he resumed visits with the boys. In Carl H., dismissal of the dependency left the child in the custody of a parent whose ability to safely parent the child was "demonstrably lacking." That is not the case here.
Carl H. stated that the juvenile court could not have made the findings required for dismissal under section 390 because "[d]espite the availability of other housing options, Carl Sr. chose to place his young son at risk by living with Grandmother, even after Carl Jr. was poisoned by the methadone left freely around the house in reach of the children. He exposed his son to marijuana. He had a sexual relationship with Mother when she was a minor, impregnating her when she was 13 or 14 years old. He abused her in front of their son. He exhibited callous disregard for the lives and well-being of his son's young half sisters when they were in Grandmother's home, feeling no responsibility to protect them from obvious hazards there. He lacked appropriate housing. None of that was seriously disputed. On this record, it is difficult to understand how a trier of fact could conclude Carl Jr.'s welfare and the interests of justice demanded that the court terminate its dependency jurisdiction. As [the social worker] wrote, '[Carl Sr.] needs to demonstrate his ability to make decisions in the best interest of his son and that demonstration should [be] monitored over a significant period of time. Carl Jr. has parented himself long enough.' " (Carl H., supra, 7 Cal.App.5th at p. 1038.)
Appellant's suggestion that the dismissal was a "punitive gesture" toward him because it "completely terminated" contact with his sons might more aptly be addressed to the no-visitation order. The court could have made an order for visitation before dismissing the petition, but decided it was not appropriate to do so.
"[T]he appellate court's discretion to excuse forfeiture should be exercised rarely." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) We do not find this an appropriate case in which to excuse it.
This brings us to the no-visitation order. Appellant argues that substantial evidence does not support the juvenile court's finding that visitation would be detrimental to the children. As we understand it, appellant's argument is that there was no substantial evidence of risk to the children from visitation with appellant because, as appellant's visitation had been terminated in March, there was no basis for assessing whether visitation was harmful. He also argues that the Agency failed to show how "monitored therapeutic visits" would place the children at substantial risk of detriment.
Appellant asserts that we must review the juvenile court's detriment finding under the substantial evidence standard. The Agency maintains the correct standard is abuse of discretion. As these differing positions illustrate, there "appears to be some disagreement as to the appropriate standard of review in these matters. Specifically, some courts have applied the substantial evidence test, others have reviewed for abuse of discretion, and still others have applied a blended standard, finding no abuse of discretion where substantial evidence supports the order. (See [In re] T.M. [(2016)] 4 Cal.App.5th [1214,] 1219-1221 [collecting cases and applying a blended standard].)" (In re Matthew C. (2017) 9 Cal.App.5th 1090, 1101, fn. 7.) It has been observed that "it is unclear 'whether the two standards are so different in this context.' (In re D.B. (2013) 217 Cal.App.4th 1080, 1092, fn. 7.)" (In re Matthew C., at p. 1101, fn. 7.) We need not reach the issue, as our conclusion would be the same under any of these standards. (Ibid.)
The juvenile court found clear and convincing evidence that visitation would be detrimental to the children, explaining that "the evidence doesn't speak so much to physical harm" but "the real issue is emotional harm to these children given the nature of the allegations that have been sustained and their young age." On the facts presented here, it is impossible to say the court's conclusion was not supported by the evidence, which showed that appellant molested both children by "touching," "squeezing" and "pulling on" their penises, that T.K. "appeared traumatized and was emotionally distraught" at his first supervised visit, becoming "hysterical" before it and remaining in that state for around an hour during the visit, at which he physically resisted appellant's attempts to hug him, and that T.K. became very scared, "crying, shaking," when appellant unexpectedly approached him outside a store.
Appellant contends there was no evidence of detriment because, although in February the court "ordered supervised visits until therapeutic visits were set up," in March the court suspended visitation prior to a visit occurring and without making a detriment finding. Arguing that there cannot be evidence of detriment until "at least a visit occurs" and it was not sufficient for the court to "merely generally refer to past abuse and any emotional harm the children suffered" without explaining why the "past abuse would result in present detriment," appellant cites cases he describes as having found visitation detrimental based on evidence of the children's reactions after visitation began. (In re D.B., supra, 217 Cal.App.4th at p. 1093; In re C.C. (2009) 172 Cal.App.4th 1481, 1486.) According to the Agency reports and Culwell's testimony, however, the Agency did begin supervised visitation: Part of the evidence of detriment was T.K.'s "extreme" reaction at the first such visit.
In fact, in the February order the court "grant[ed] the department[] the discretion for supervised visits till therapeutic visits are set up."
At the hearing on August 15, counsel for the children recalled that visitation was suspended by the court in March, "shortly after that disturbing visit," and the court made a detriment finding at that time. Counsel for the Agency had the same recollection. On review of the case file, however, the court found nothing reflecting a detriment finding having been made at that time.
Appellant's position appears to be that too much time had passed since the visit in March, and the conduct reported in February, for the juvenile court to be able to make a detriment finding when it ruled on the case in August. As we have indicated, the trial of this case spread over a number of months: The evidentiary portion of the jurisdiction hearing took place on May 25, June 17, July 7, and August 3. Arguments on jurisdiction were heard on August 5, and on August 15 the court rendered its decision on jurisdiction, then heard and decided the visitation issue. The passage of so much time is obviously unfortunate. But that cannot mean the court was required to ignore that appellant subjected his children to an extreme trauma. In the disposition report, social worker Culwell reported that no providers would accept the Agency's referral for therapeutic visits because, as explained in a letter from one provider, visitation was considered "contraindicated" when child victims of sexual abuse express not wanting to have contact with their perpetrators, as "[h]aving contact between victims and perpetrators when the victim is unwilling, and/or the perpetrator is not acknowledging the abuse can be damaging to a child's mental health functioning." The record does not indicate anything had changed to mitigate the risk of emotional harm to the children.
Contrary to appellant's suggestions, the no visitation order did not amount to giving a child veto power over the parent's visitation (see In re S.H. (2003) 111 Cal.App.4th 310, 317 [child's wishes may not be "sole factor" in determining whether visitation takes place]), nor is there any reason to view the order as "punitive." The order serves to protect the children from having to face a father who had sexually abused them and, as far as the record shows, taken no steps to address his conduct with the children or learn how to ameliorate the emotional damage he had caused.
At the juvenile court hearing, in response to the Agency's argument that appellant never asked for visits after they were suspended in March, continued to deny the abuse occurred, and had not been in treatment. Appellant's attorney represented that she asked about visitation before the trial began and was told by the court that "those issues had been decided and we would hear the evidence in the trial." At that point, counsel stated, she would have told appellant not to ask. Counsel also represented that she had asked Culwell whether she had specific treatment plans in mind that she would want appellant to participate and Culwell did not want to discuss the issue.
Appellant points to the provision in section 362.1, subdivision (a)(1)(A), that "[v]isitation shall be as frequent as possible, consistent with the well-being of the child." This provision is not applicable to the present case, as it pertains to orders placing a child in foster care and ordering reunification services, neither of which were ordered here. Moreover, since the statute provides for visitation to be "consistent with the well-being of the child" and prohibits visitation that would "jeopardize the safety of the child," visitation may be denied under section 362.1 if it would be "inconsistent with the physical or emotional well-being of the child." (In re Matthew C., supra, 9 Cal.App.5th at p. 1102.) This is "essentially a detriment test." (Ibid.)
Section 362.1, subdivision (a) provides:
"(1)(A) Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child.
"(B) No visitation order shall jeopardize the safety of the child. To protect the safety of the child, the court may keep the child's address confidential. If the parent of the child has been convicted of murder in the first degree, as defined in Section 189 of the Penal Code, and the victim of the murder was the other parent of the child, the court shall order visitation between the child and the parent only if that order would be consistent with Section 3030 of the Family Code."
Appellant acknowledges that he "may not have been entitled to reunification services" because the children were not removed from the mother's custody.
Neither of the parties actually identifies the standard governing visitation orders when a dependency is dismissed after children previously in the joint custody of parents living in separate households are removed from the custody of one parent and placed in the full custody of the other. Section 361.2 provides that "[w]hen a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. . . ." (§ 361.2, subd. (a).) Appellant and the mother had joint legal and physical custody of T.K.; he was removed from appellant's custody and not from the mother's. Since the sexual abuse and domestic violence occurred in appellant's household or when the children were in appellant's care, it is reasonable to say the children were not "residing" with the mother at "the time that the events or conditions arose that brought the child within the provisions of Section 300."
When the court removes a child from the parent with whom the child was residing when the events causing intervention occurred and places the child with the other parent, with whom the child was not residing when the triggering events occurred, the court has several options: It may give the parent with whom the child has been placed legal and physical custody of the child and terminate dependency jurisdiction (§ 361.2, subd. (b)(1)); it may have the second parent assume custody subject to juvenile court supervision (§ 361.2, subd. (b)(3)); or it may have the second parent assume custody subject to juvenile court jurisdiction, order a home visit, and then decide whether to require juvenile court supervision (§ 361.2, subd. (b)(2)).
The court's order here was consistent with the first of these options. Section 361.2, subdivision (b)(1), provides as follows: "If the court places the child with that parent it may do any of the following: [¶] (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents." (Italics added.)
As indicated by the italicized text, section 361.2, subdivision (b)(1), does not appear to mandate an order of visitation for the parent from whom custody is removed, suggesting a court could deny visitation in this situation even without a detriment finding. We need not consider the import of this provision, however, as the juvenile court here made a detriment finding which we find supported by the evidence. The court's decision necessarily demonstrates that it believed its order achieved the goal of the dependency proceedings, "to 'eliminate[e] the conditions or factors requiring court supervision.' " (In re A.L., supra, 188 Cal.App.4th at p. 140, quoting § 364, subd. (b).) The order of no visitation for appellant was part of the protection the juvenile court deemed necessary for the children. If and when circumstances change, whether by virtue of progress in therapy in which appellant chooses to engage, input from the family court evaluator or some other development in the family, appellant is free to seek modification of the juvenile court's orders in superior court.
DISPOSITION
The orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.