Opinion
A154789
09-20-2019
In re F.K. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. SAVANNAH L. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. DEP-4236, DEP-4237, DEP-5227)
Savannah L., mother of nine-year-old F.K., six-year-old S.K., two-year-old A.M., and Matthew M. (father of A.M. only), appeal from the juvenile court's orders sustaining subsequent petitions, filed pursuant to Welfare and Institutions Code section 342, and finding that the three children came within subdivision (d) of section 300 because they had been sexually abused or there was a substantial risk that they would be sexually abused by their parent, guardian, or a member of their household. On appeal, Mother contends F.K.'s out-of-court statements regarding sexual abuse, while admissible, were unreliable and therefore did not provide substantial evidence that the three children had been or were at substantial risk of being sexually abused. Father Matthew M. makes the same claim as to A.M. only. Mother also contends the court violated her due process rights when it denied her request for F.K. to testify at the jurisdictional hearing on the subsequent petitions. Both parents join in and adopt each other's briefs on appeal. We shall affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On July 5, 2013, the Sonoma County Human Services Department/Family Youth and Children Services (Department) filed an original petition alleging that then 3-year-old F.K. and 11-month-old S.K. came within the juvenile court's jurisdiction, pursuant to section 300, subdivision (b), based on Mother's failure to comply with a voluntary case plan in that she had tested positive for marijuana and a drug test was dilute. In addition, the "parent's" home was found to be unsafe due to the presence of loose marijuana, marijuana plants, and smoking paraphernalia, all within the children's reach. F.K. and S.K.'s father Charles K. had been arrested in August 2011, for marijuana cultivation.
Charles K. is the father of F.K. and S.K. only. He did not appear in the juvenile court proceedings and is not a party to this appeal.
Mother agreed to a voluntary family reunification plan and to have the case transferred to Sonoma County. Thereafter, Mother tested positive for marijuana in violation of her voluntary services agreement.
In an August 12, 2013 jurisdictional/dispositional report, the Department recommended that the children be returned to Mother under a family maintenance program and that Charles K. not be permitted to live in the home. In an August 15, 2013 supplemental report, the social worker reported that Mother, who said she had a medical marijuana card, did not appear to have a substance abuse problem. In a follow-up report filed on August 15, 2013, the social worker reported that F.K. had a heart condition that required surgery and that Mother had delayed some six months in following up on a referral to a cardiologist. The cardiologist did not believe F.K.'s condition had worsened due to the delay, but did believe the surgery should be performed in the next few months. Mother wanted to understand the condition and the risks of surgery before making a decision.
In a September 17, 2013 addendum report, the social worker reported that the children had been released to Mother on August 27, and that Mother had been cooperative with all aspects of her case plan. The Department requested that the matter be dismissed, with the agreement that Mother would obtain a family law custody order granting her full physical and legal custody of the children. Charles K. would be granted supervised visitation. On September 18, 2013, the parties agreed that an appropriate stipulation would be filed in family court, and the petition was dismissed.
More than three years later, on February 10, 2017, the Department filed a new petition alleging that then six-year-old F.K. and four-year-old S.K. came within the juvenile court's jurisdiction, pursuant to section 300, subdivision (b)(1) as to F.K., based on Mother's failure "to follow through with lifesaving heart surgery" for F.K., and pursuant to section 300, subdivision (j) as to S.K., based on Mother's failure to obtain necessary medical treatment for F.K.
On February 14, 2017, the court ordered only F.K. detained.
In a jurisdiction report filed on March 2, 2017, the social worker reported that Mother did not think F.K.'s condition warranted surgery, given that she had observed no symptoms. She had been feeding him well and treating him with hawthorn berries, at the recommendation of a naturopath. Mother expressed skepticism about the cardiologist's recommendations and diagnostic procedures. The social worker reported that F.K. had "a complete atrioventricular septic defect, a large hole in the central wall of his heart." According to the cardiologist, his heart had been damaged and, if left untreated, would definitely lead to heart disease in the future. F.K. had also seen a dentist, who said that his heart health was further complicated by a severe dental condition caused by decay and cracked teeth, which would require seven crowns and five extractions.
The social worker described Mother as "a study in contradictions," in that she showed that she cared deeply about the health of her children, going to great lengths to provide them with healthy, organic food, while remaining unable to accept the gravity of F.K.'s medical condition and failing to provide him with dental care. The social worker concluded that Mother's "judgment is critically impaired and she is unable to make informed and reasonable decisions regarding the health of her children."
On March 6, 2017, Mother agreed to submit to jurisdiction and the court found true the allegations in the petition, as amended, as to F.K. only.
On April 14, 2017, the Department filed a request for a protective custody warrant for S.K., reporting that Mother had been completely uncooperative in working with the Department to assess S.K.'s health. The Department also reported that Mother had placed S.K. in the care of S.K.'s great-grandmother and her husband in San Bernardino County. Two of the great-grandmother's daughters had reported that she was physically abusive to them and to a grandson. One of the great-grandmother's daughters had reported that the great-grandmother's husband had "devised a peep hole in their bathroom and would observe her while she showered." The great-grandmother and her husband had refused to cooperate with the social worker or provide any information about medical or dental examinations. The court issued the protective custody warrant on that same date.
This daughter was the maternal great-aunt of the children, with whom F.K. was currently placed.
On April 17, 2017, Dr. Gloria Speicher, a clinical psychologist, filed a report regarding a psychological evaluation she had conducted with Mother. Dr. Speicher found that Mother strongly desired reunification, but "she is very poorly motivated for change or intervention. She lacks insight. She has limited understanding of her thoughts and feelings and situation." Dr. Speicher believed that Mother's prognosis was "poor or guarded" because Mother "either chooses not to acknowledge her difficulties to others or is unable to be aware of them herself. Both of these options interfere with her ability to accept help. . . ." Dr. Speicher concluded, "Unfortunately, there is very little evidence that this behavior will do anything other than continue."
At a May 4, 2017 hearing, Mother advised the court that following a short trip with her grandmother, the grandmother had let S.K. go for a visit with Charles K., despite the fact that there was a warrant out for S.K.
On May 12, 2017, the Department filed a second amended petition as to S.K., with allegations under section 300, subdivision (b)(1), as well as subdivision (j). The petition alleged that Mother had failed to provide necessary dental treatment, requiring two extractions and restorations on 11 of S.K.'s 20 teeth; that Mother had temporarily placed her with caretakers who had histories of child abuse or child endangerment; and that, despite a court order for protective custody of S.K., Mother had facilitated her "being passed from relative to relative," including the great-grandmother, the grandmother, and Charles K., all of whom had histories of child abuse or endangerment.
On June 5, 2017, the court ordered the Sonoma County District Attorney's Office, with the assistance of law enforcement, to begin an investigation for the purpose of finding S.K. and returning her to the jurisdiction of the court. The court set a hearing to determine whether to hold Mother in contempt for willful violation of the order to return S.K. to the Department.
On June 15, 2017, the Department filed a third amended petition regarding S.K., adding allegations under subdivision (b)(1) of section 300, that S.K. had been diagnosed with a cardiac murmur that was assessed to likely be the result of her vegetarian diet and possible anemia. Mother had brought S.K. to the Department's office on June 13, 2017, and on June 16, the court ordered S.K. detained.
On June 23, 2017, the Department filed an original petition alleging that Mother and Matthew M.'s one-month-old son, A.M., came within the juvenile court's jurisdiction, pursuant to section 300, subdivision (j), based on the abuse and/or neglect of F.K. and S.K.
On June 26, 2017, following the dispositional hearing for F.K., the court declared F.K. a dependent of the court and ordered him removed from parental custody. The court ordered reunification services for Mother, but not for Charles K.
On July 24, 2017, following a jurisdictional/dispositional hearing for S.K., the court found true the allegations in the third amended petition, declared S.K. a dependent of the court, and ordered her removed from parental custody. It also ordered reunification services for Mother, but not for Charles K.
On July 27, 2017, Mother and Matthew M. submitted to the Department's recommendation that the court find A.M. a dependent of the court in the custody of his parents, under the supervision of the Department, which would provide family maintenance services, and the court so ordered.
On October 26, 2017, the Department filed subsequent petitions, pursuant to section 342, alleging that F.K., S.K., and A.M. came within section 300, subdivision (d) because they had been sexually abused or were at substantial risk of sexual abuse. With respect to F.K. and S.K., the petition alleged that Mother had exposed them to "multiple pornographic films depicting child on child sexual encounters, while sharing a bed with Matthew M., and one or both of the minors, over an extended period of time," as revealed in two forensic interviews with F.K. As a result of exposing F.K. to child sexual abuse, F.K. "has engaged in sexualized behavior directed at other children, including his sibling."
Both F.K. and S.K. had been placed with the maternal great-aunt, who had reported the sexual behavior and disclosures to the Department. During a September 2018 meeting with Department staff, F.K. had said that before his great-aunt told them to stop, he and his sister would get up at night so that they could play and " 'do stuff,' " but he did not want to discuss it further. He also said that he got the idea to put his mouth on S.K.'s privates from movies he watched at Mother's house, in bed with Mother, S.K., and "the guy." F.K. also reported that he had witnessed a boy having sex with S.K. at the Sundance Native American festival (Sundance) he and S.K. attended with Charles K. He said he told his parents about this incident, but they did not do anything.
As to A.M., the petition alleged that he was at risk of sexual abuse as a result of the exposure of his two half siblings to pornographic films.
On November 9, 2017, the Department filed a supplemental petition under section 387 as to S.K. only, alleging that as a result of child sexual abuse, F.K. had engaged in sexual behavior directed at other children, including S.K., which had increased in recent weeks. Because the Department believed that S.K. could no longer safely remain in the same foster home as F.K., it recommended that S.K. be moved to a separate foster home.
On November 13, 2017, the court ordered S.K. detained in shelter care.
In amended subsequent petitions filed on November 16, 2017, the Department added allegations, which F.K. had disclosed during a November 15 forensic interview, that he had performed sexual acts on adults and children at the direction of Charles K. and Matthew M. He also reported that he had been recorded by both men while performing such acts, that S.K. was directed to perform sexual acts on adults and was also recorded, and that Mother "was present and involved during many of these incidents."
In a jurisdiction report on the subsequent petitions, filed on January 9, 2018, the social worker described additional recent sexual abuse allegations, which involved F.K. and S.K. being sexually abused by Charles K. and his girlfriend while staying with them in Oregon. The allegations included Charles K.'s girlfriend telling F.K. to put his finger in her vagina and his mouth on her vagina while Charles K. videotaped them from behind a curtain and the girlfriend instructing F.K. to perform sexual acts on a younger female child who was present, while Charles K. filmed the children from behind a curtain. The social worker reported other sexual abuse allegations made by F.K., including an incident that took place when F.K. and S.K. were at Sundance in 2015 with Charles K., and F.K. witnessed a slightly older boy having sexual intercourse with S.K., after which F.K. told Mother, who did nothing. Other allegations included Matthew M. directing F.K. to go into a room alone and take pictures of his own penis using Mother's phone; F.K. being in bed with Mother and Matthew M. and watching movies depicting sexual acts between young children; and Matthew M. asking F.K. to videotape Mother rubbing her vagina against the bed while Mother was naked from the waist down and Matthew M. "stood next to the bed posing." Both children had participated in forensic interviews at the Redwood Children's Center (RCC); F.K. had done so on multiple occasions.
The social worker further reported that there were concerns about F.K.'s mental health due to his being "obstinate and stubborn at times when told 'no' to the point that he causes harm to himself or others around him." F.K. had also displayed age-inappropriate behavior, including excessive masturbation, stating that he wanted to see "the 'tooshies' " (his name for vagina) of S.K. and other young girls, and acting out sexual behaviors on S.K., including—according to F.K.—orally copulating her and touching her "tooshie." F.K. was scheduled to begin individual therapy in Sonoma County, but when his placement was changed in November 2017 to Contra Costa County, a new therapist had to be found, and F.K. was scheduled to start meeting with the new therapist in January. Given the recent disclosures about sexual abuse and F.K.'s conduct with S.K., S.K. had begun weekly individual therapy.
The Delivered Service Log (log) entries attached to the report contained summaries of the investigating social worker's interviews with F.K., S.K., and the great-aunt; summaries of F.K.'s statements in the forensic interviews; and the social worker's discussions with Matthew M. and Mother about F.K.'s disclosures.
On September 20 and 27, 2017, two investigating social workers met with the great-aunt, who said she had concerns about F.K. and S.K. acting out sexually in various ways.
On September 20, 2017, S.K. told the social workers that F.K. had " 'kissed, licked and sucked on my tooshie' " multiple times. Also on September 20, F.K. met with the social workers and although he was reluctant to discuss the activities between his sister and himself, he did say he got the idea to put his mouth on S.K.'s privates from pornographic movies he watched at Mother's house. F.K. also described seeing a child " 'doing sex' " to S.K. by " 'pushing the front privates together' " during a visit to Sundance with Charles K.
A September 27, 2017 log entry summarizes F.K.'s statements made during a forensic interview held that day at RCC, during which he reported that he " 'did something' " to his sister that he learned from seeing young children " 'rubbing' " and " 'sucking' " each other's " 'front privates' " in two movies he watched with S.K., Mother, and Matthew M. when he was approximately six years old, and while they were living with his grandmother. F.K. drew a picture of the room where this took place, including a bed and a dresser with a television on top and a black DVD case in which he said Mother kept the pornographic DVDs.
Another log entry discusses an interview with Mother, in which she told the social workers that she did keep her DVDs in a black case, but denied possessing any pornography and said the children had never been exposed to any sexually explicit material.
On November 15, 2017, F.K. participated in a second forensic interview at RCC after the Department received a new report of possible sexual abuse from his great-aunt and current foster parent. Log entries attached to the social worker's report indicate that F.K. stated during the interview that while he was at Charles K.'s home in Oregon, Charles K.'s girlfriend engaged in sexual conduct with him while Charles K. filmed the incident with a cell phone from behind a curtain in the bathroom. Charles K.'s girlfriend also had F.K. engage in similar conduct with younger girls in the same bathroom, again with Charles K. present.
F.K. also stated during the forensic interview that while in Mother's care, Matthew M. had told him to go into a room alone and take a picture of his own penis on Mother's phone and that, another time, Matthew M. had F.K. videotape Mother rubbing "her vagina up and down against the bed while Matthew M. stood behind her posing and flexing." F.K. said he told his great-aunt about this incident after she found a drawing he had made of S.K.'s vagina. He also told her about sexual activity that had taken place between S.K. and himself.
Other log entries contain summaries of the social worker's meetings with the great-aunt and F.K. on November 21, 2017, after Mother reported that F.K. had bruises on his hand during a visit. The great-aunt explained that F.K. did not like to go the bathroom and frequently urinated in the bed at night, and the great-aunt made him wash the soiled sheets. She said that F.K. had bruised his hand punching the bathtub after refusing to help clean the sheets on which he had urinated, which the social worker found consistent with the nature of the bruising. The great-aunt also said F.K. had been punching and kicking walls and windows and breaking things when asked to do something he does not want to do. F.K. told the social worker that the bruises on the sides of his hands were "from punching and hitting the walls when he was angry the other night." He denied that anyone had hurt, hit, or restrained him.
In the January 2018 jurisdiction report, the social worker further reported that in October 2017, the Department and the parents had established a safety plan for A.M. to ensure that he was not at risk of sexual abuse. The plan called for the maternal grandmother to move into the home and be with A.M. at all times when the parents were present. In late December, the social worker learned during a home visit that the maternal grandmother had moved out of the home. The parents had not advised the Department of this change when it took place.
In addition, the Department had asked Mother for help locating Charles K. to give him notice of the upcoming hearings. She initially said she had no contact with him and had no idea how to reach him. After repeated questioning, Mother said she had two phone numbers for Charles K. and had recently exchanged messages with him on one of the numbers. As Mother said this, Matthew M. "gave her a sharp look and [Mother] quickly attempted to retract this statement." The social worker then asked for the number, but Mother said she could not give it to her just then. Mother said she would text the number to the social worker, but never did.
The Department recommended that Mother continue to receive family reunification services as to F.K. and S.K. The Department recommended that A.M. be removed from the care of Mother and Matthew M., and that the parents receive family reunification services.
On January 10, 2018, the Department filed second amended subsequent petitions (subsequent petitions) as to F.K., S.K., and A.M. which contained more specific allegations regarding the sexual abuse already alleged.
On March 20, 2018, the social worker filed a status review report in which she reported that F.K. had been placed with Matthew M.'s aunt and uncle, nonrelated extended family members (NREFM foster parents) in Contra Costa County on December 8, 2017, and S.K. had been placed in emergency foster care in Sonoma County. A.M. remained in the parents' care.
F.K. had undergone open heart surgery in September 2017, to repair the defect in his heart. The surgery had been only a partial success due to the extent of existing damage to the valve. He also had had dental surgery under general anesthesia in July 2017.
S.K.'s heart murmur had been found to be presently "innocent" and a treatment plan had been developed to address her dental issues. She would require six crowns, two fillings, and five extractions to repair her dental decay.
Mother had declined to have any of the three children immunized.
Mother had reported that she and Matthew M. did not consider Sonoma County their home and hoped to have the dependency case dismissed or transferred to San Bernardino County, where her support network—including her grandparents and mother—lived.
The contested hearing on the supplemental petitions took place over five days, between April 13 and May 18, 2018. Social worker Dawn Romero testified that in September 2017, F.K. and S.K.'s great-aunt, with whom they were placed, contacted her and told her that F.K. was masturbating with increasing frequency. The children's placement with the great-aunt ended in December both because she said that F.K.'s behaviors were becoming more aggressive and she was concerned about his and her own safety, and because she was not transporting him to many of his medical and therapy appointments. F.K. never told Romero he was scared at his great-aunt's house, nor did he act scared while he was there.
Matthew M. testified that he had never seen sexualized behavior from either F.K. or S.K. and had never watched movies with a rating beyond PG with the children. Nothing that F.K. said about Matthew M. and Mother in the forensic interviews with respect to sexual activity was true. Matthew M. had previously been present for some supervised visits between F.K., S.K., and Charles K. In approximately 2016, Mother had occasionally left the children with Charles K. for a day of unsupervised visitation in Oregon. Matthew M. could not say whether a child would be safe in Charles K.'s home.
F.K.'s NREFM foster mother testified that F.K. had been in her home since December 2017. She and her husband noticed that F.K. lied a lot. F.K. told her he had acted out sexually with S.K. once while at his great-aunt's house. He had learned this activity from a boy at the Sundance festival he and S.K. had attended with Charles K. His great-aunt had said she knew he had learned this behavior from Mother and Charles K.'s girlfriend, but F.K. said this was a lie. His great-aunt also "told him to tell the lady" at the forensic interview that he learned it from Mother and Charles K.'s girlfriend. F.K. did not tell his great-aunt that he had learned the sexual behavior from the boy at Sundance because he was afraid she would hurt the boy.
The NREFM foster mother had never seen F.K. masturbate. He had, however, regularly gotten very angry and acted out verbally and physically. She recounted several incidents in which he got very angry at home and at school when told to use the bathroom. He also had accidents where he urinated and defecated in his pants. The NREFM foster mother did not believe that F.K.'s behavior had improved in the time he had been placed in her home.
By the time of the hearing, the NREFM foster parents had told the social worker that they would be unable to continue to care for F.K. because his behaviors were too extreme and they did not feel they could keep him safe.
Mother testified that she had never exposed her children to any kind of pornography and had not engaged in any sexual conduct in front of them. She had only recently learned of the allegations of sexual conduct involving Charles K. and his girlfriend. When asked whether she believed the allegations, Mother testified that "it was hard to decide, you know, to believe or not to believe because it was hearsay" that she had heard through the Department. There was nothing in her relationship with Charles K. that would cause concern that the allegations could be true. She believed F.K. needed to continue with therapy and that more information was needed because "there's so many inconsistencies with some of the stories." However, Mother did not think F.K. and S.K. should visit with Charles K. because "there's serious concern that something's definitely happened to my son." Based on the NREFM foster mother's information, Mother believed the children had not been properly supervised while with Charles K., with whom they had unsupervised visits on occasion. Mother denied that F.K. had told her that something inappropriate had happened at Sundance.
Mother had viewed some of the forensic videos in which F.K. made allegations of sexual activity. When asked whether there were some allegations that seemed improbable or impossible, Mother responded that something that stood out was when F.K. said he had taken pictures of her rubbing her genitals on a bed, and in "part of the video . . . he's describing an incident that he says had occurred with me and [Matthew M.], he says that he went on his head and he did a headstand or a handstand and he held the phone with his foot and continued to take pictures" with his feet. F.K. also said his grandmother was present during this activity, which also was "an unlikely scenario."
Mother had completed a two-hour online course called "Reducing the Risk of Child Sexual Abuse," and described what she had learned in the course. She wanted F.K. and S.K. to participate in a program for sexual abuse victims and had started compiling a list of local resources. Mother now believed that F.K. was sexually abused since he had "learned these things from somewhere." She believed "he was exposed to either direct or indirect sexual abuse. Sexual abuse, possibly content. It could have been pornography. It could have been children. It could have been adults. It could have been both." But she did not know if any of the stories he had reported about what happened to him had actually occurred. She did not know if S.K. had been sexually abused.
Mother believed it was her responsibility to educate herself and her children to help the children heal and to prevent them from being exposed to any sexual abuse. Mother did not believe it was her fault that her child was sexually abused and she had no reason to know her children were at risk when she sent them to be with Charles K.
Social worker Romero then testified, with respect to A.M., that she no longer believed he was safe in Mother and Matthew M.'s care. This was because the parents were protective of Charles K. and claimed they did not know his whereabouts, which prevented investigation of the sexual abuse allegations against him. In addition, they did not acknowledge the sexual abuse of F.K. and S.K. until the current hearing, they did not follow the safety plan for A.M., and they said they did not have computers, but then brought a laptop computer to a meeting at the Department.
On May 18, 2018, at the conclusion of the hearing on the subsequent petitions, the court stated that it "has had the opportunity to review the files, look at the delivered service logs, watch the video, listen to the testimony, heard the argument. . . . [¶] "There is no doubt that something happened to the six—seven-year-old child. The acting out behavior that was witnessed by the [NREFM foster mother] and others is—is alarming. Obviously the contact in the [great-aunt's] home is disturbing. The question is: What is the cause of all of this?
"I do believe, by a preponderance of the evidence, that the child was molested. I do believe the child is [sic] in the video. There are aspects of the video that, obviously, cannot be reconciled, but that does not detract from the nature and quality overall of the video itself. I do find it's credible when the child described the filming of his mother. When he portrayed his mother by using his hands and how she was posing, I do find that to be credible.
"The court also, for the reasons stated in rebuttal by county counsel, finds that the petition has been proved. The logic and reasoning of county counsel was persuasive."
County counsel had argued, inter alia, that there was evidence corroborating F.K.'s disclosure of the sexual abuse: "I think his sexual acting out is corroborating evidence. I think, also, corroborating evidence is the emotional reaction that he's had to many situations including, by [F.K.'s NREFM foster mother's] own testimony, much of it around the issue of going to the bathroom, and we know from the RCC interview, this is where the child identified the most horrendous abuses occurring, the bathroom at his father's home." She also argued, with respect to the allegations of sexual abuse and Mother's denial about what had occurred at Charles K.'s home, that, just as she did with F.K.'s heart disease and the children's dental decay, Mother had "failed to listen to every person who could ever tell her what the risks are confronting her children, and that's what she's doing now. That's what she's doing now with everything that [F.K.] has said. She's refusing to listen to it. She's refusing to listen to the social workers."
The court then found the allegations of the subsequent petitions true, ordered A.M. detained based on his sibling having been molested in the home of a parent, and ordered the matter continued for an 18-month review hearing as to F.K. and S.K. and a 6-month review hearing as to A.M.
On July 9, 2018, Mother filed a notice of appeal from the court's orders on the subsequent petitions as to F.K., S.K., and A.M. Also on July 9, 2018, Matthew M. filed a notice of appeal from those orders as to A.M.
Subsequently, this court denied Mother's petition for extraordinary writ, filed after the juvenile court terminated her reunification services as to F.K. and S.K. and set the matter for a section 366.26 hearing. (In re F.K. et al. (May 31, 2019, A156346) [nonpub. opn.].)
DISCUSSION
I. Substantial Evidence Supports the Trial Court's Jurisdictional Findings
The subsequent petitions were filed pursuant to section 342, and alleged that F.K., S.K., and A.M. came within the provisions of section 300, subdivision (d), which states that the court may adjudge a child a dependent child of the court if it finds that "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse."
Section 342 provides: "(a) In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. This section does not apply if the jurisdiction of the juvenile court has been terminated prior to the new allegations.
"(b) Unless otherwise provided by law, all procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section." (§ 342.)
Under Penal Code section 11165.1, " 'sexual abuse' means sexual assault or sexual exploitation," as further defined in that section.
"Jurisdictional findings must be made by at least a preponderance of the evidence." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.)
Here, Mother contends F.K.'s out of court statements regarding sexual abuse, in both the Department's reports and the RCC forensic interviews, while admissible, were unreliable and therefore did not provide substantial evidence that the three children had been or were at substantial risk of being sexually abused. Matthew M. makes the same claim as to A.M. only.
In reviewing the juvenile court's ruling on appeal, "the evidence supporting the jurisdictional finding must be considered ' "in the light of the whole record " ' 'to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value. . . .' [Citation.]" (In re I.C. (2018) 4 Cal.5th 869, 892 (I.C.).)
A. The Social Studies and Section 355
First, with respect to the hearsay statements contained in the Department's reports and attached log entries, 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, including, inter alia, when "[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).)
In addition to these specific statutory requirements, in In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.), the California Supreme Court held that in order to satisfy the requirements of due process, "[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 (Cindy L.).) The Lucero L. court further stated that, without special indicia of reliability, a truth-incompetent minor's hearsay statements contained in a social study are admissible, but sufficient to support a jurisdictional finding only "if corroborated by other evidence." (Lucero L., at pp. 1244, 1247.)
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 similar age; and (4) lack of motive to fabricate. [Citation.]' " (Lucero L., supra, 22 Cal.4th at pp. 1238, 1239, quoting Cindy L., supra, 17 Cal.4th 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.)
This corroboration requirement is "not required 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.' [Citation.]" (Id. 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 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.) The corroborating evidence does not need to establish " 'the precise facts' " 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 pp. 984, 985.)
Here, although F.K. was not found to be "truth incompetent" (Lucero L., supra, 22 Cal.4th at p. 1249), he did not testify at the jurisdictional hearing because the court found that requiring him to testify would cause him psychological harm. Our Supreme Court has not yet addressed whether the same reliability standard discussed in Lucero L. and I.C. would apply to hearsay statements of a child who does not testify for reasons other than truth incompetency. We agree with the Department, however, that because the "parents had no opportunity to cross-examine F.K. due to his unavailability, arguably, the same standard of reliability [applies] to permit his statements in the social study to be considered as exclusive evidence supporting jurisdiction."
Nevertheless, in the circumstances of this case, we need not decide whether F.K.'s statements regarding the sexual abuse described in the Department's reports would satisfy the special indicia of reliability requirement discussed in Lucero L. because, even assuming that his statements in the social studies do not provide sufficient indicia of reliability to be relied on exclusively, F.K.'s hearsay statements were not the sole basis for the court's jurisdictional findings. As we shall discuss, additional evidence in the record corroborates F.K.'s statements in the social studies regarding the sexual abuse and that evidence, together with F.K.'s statements, constitutes substantial evidence supporting the juvenile court's finding that the three children came within subdivision (d) of section 300. (See Lucero L., supra, 22 Cal.4th at p. 1247; see also id. at pp. 1251-1252 (conc opn. of Kennard, J.) [describing plurality's analysis of indicia of reliability of minor's hearsay statements in majority opinion as dictum because "trial and appellate courts need only determine whether such indicia of reliability are present when hearsay declarations by a minor who is unable to understand the duty to tell the truth are the sole evidence supporting the trial court's jurisdictional finding," and there was corroborating evidence in that case].)
F.K.'s hearsay statements in the social studies related to sexual abuse include the following: in a September 20, 2017 log entry attached to a Department report, a social worker summarized an interview with F.K. on that date, in which F.K. said he and S.K. would get up at night after their great-aunt was asleep so they could play and " 'do stuff.' " Although he was reluctant to discuss the details, he disclosed that he got the idea to put his mouth on his sister's privates from movies he had watched at Mother's house. He described the movies as " 'guy and girl' and stated that the clothes were 'being pulled down' and the 'guy touched his own privates and touched the girl's privates. He put mouth on privates, mouth to crotch. Boys on girls, then girls on boys.' [F.K.] reports watching these movies multiple times with his sister, mother, and another man present. [F.K.] stated they watched the movies on a big bed, and 'we were going crazy, my mom and the guy and me and my sister all on the bed rolling around. It was boy on girl, and we were all bouncing around.' [¶] [F.K.] stated the movie was watched 5 times and that there was a second movie where items were put into butts and 'they just kept doing it.' "
F.K. also "reported that in addition to the movies, he had witnessed a child 'doing sex' to his sister during a visit to Sundance with his father. [F.K.] described this incident as happening two years ago, and stated that the child was probably 7 at the time, and had an older sister. [F.K.] describes the boy as 'doing sex' by 'pushing the front privates together' while [S.K.] laid still on the floor and 'stared at me.'. . . [F.K.] stated he told his parents about this incident, but that they did not do anything."
In another log entry dated September 27, 2019, the social worker described F.K.'s forensic interview at RCC that day, in which he "disclosed watching two different movies with his sister, his mother, and [Matthew M.]" on TV while in bed together when he was approximately six years old. F.K. drew a picture of the room in which they watched the pornography, which included a bed, a dresser near the foot of the bed, and a television on the dresser, along with a black DVD case in which Mother kept the pornography DVDs, together with other DVDs they owned. F.K. further described one of the movies, from which he learned about the sexual acts he had performed on S.K., as involving "two children, approximately age 5 and 7 'rubbing their front privates together' and 'sucking each other's front privates.' " A second social worker added in her log entry regarding the forensic interview that F.K. said Mother and S.K. were always present while the videos were being viewed and that Matthew M. "was present at least 50% of the time." He also said that one time his grandmother walked in and saw him watching the child pornography videos with Mother and Matthew M., and "was upset that his mother was showing them."
The recording of the September 27, 2017 forensic interview was not admitted into evidence.
Log entries attached to the social worker's report regarding the November 15, 2017 forensic interview indicate that F.K. stated during that interview that while he was at Charles K.'s home in Oregon, Charles K.'s girlfriend instructed F.K. to put his finger in and mouth on her vagina while Charles K. filmed the incident with a cell phone from behind a curtain in the bathroom. F.K. stated that Charles K. was "breathing hard because he was scared that [F.K.] saw him." Charles K.'s girlfriend also told F.K. to do the same things with a younger girl, who was present. On another occasion, Charles K.'s girlfriend told F.K. to engage in sexual behavior with another young girl, "by putting 4 crayons in her butt and allowing [the girl] to put 5 crayons in his butt." Charles K. was also present during this incident.
The log entries further indicate that F.K. stated during the November 15, 2017 forensic interview that while in Mother's care, Matthew M. had told him to take a picture of his own penis on Mother's phone, which he did. Another time, Matthew M. asked F.K. "to take a video while [Mother] rubbed her vagina up and down against the bed while [Matthew M.] stood behind her posing and flexing." F.K. "said it was 'very hard to get shots' of his mother's vagina as it was against the bed but he was eventually able to see it in through [sic] the tablet screen." Finally, F.K. said he told his great-aunt about this incident after she found a drawing he had made of S.K.'s vagina. He also told her that he had touched S.K.'s vagina with his hand and mouth and tried to put his penis inside of her body, " 'but it kept coming out.' " He said S.K. also touched his penis with her hand and mouth.
In addition to F.K.'s hearsay statements summarized in log entries attached to the social studies, the record contains a great deal of evidence from both the social studies and the jurisdictional hearing—which does not consist of hearsay statements of F.K.—that corroborates F.K.'s hearsay statements and supports the court's jurisdictional findings. (See Lucero L., supra, 22 Cal.4th at p. 1247.) Some of this evidence was discussed by county counsel in her rebuttal argument at the hearing on the subsequent petitions, on which the court relied in finding that the children came within section 300, subdivision (d). This includes evidence of both F.K. and S.K. acting out sexually. For example, as early as June 16, 2017, log entries state that the great-aunt called the social worker to express concern about some sexualized behaviors F.K. and S.K. were exhibiting, including F.K. masturbating a couple of times and grabbing the great-aunt once, and S.K. blowing on the great-aunt's groin area. The great-aunt was worried that the children "may have been exposed to adult sexuality." A week later the great aunt called the social worker and was "very upset." She reported that she had gone into F.K. and S.K.'s room and saw F.K. with his hands in S.K.'s pants. Later, S.K. said her "tooshie" hurt and said it was because F.K. "rubbed it." F.K. then admitted touching himself and touching S.K.'s "tooshie."
Subsequently, on September 20, 2017, a log entry states that the great-aunt met with the social worker and told her that S.K. had reported to her several weeks earlier that F.K. had " 'kissed and licked her tooshie,' " which was the word used for vagina. Prior to this disclosure, the great-aunt reported "that she had been concerned about [F.K.'s] frequent masturbation, noting that he had injured his penis prior to entering her home, and that he will touch and expose himself in front of others, rub against people who are seated on the floor, and make sexually provocative comments." She also reported that the children attempted to sleep together and S.K. called sleeping in the same bed their " 'sexy time.' " Finally, the great-aunt stated "there may have been a time when [F.K.] tried to put a crayon into [S.K.'s] anus."
Social worker Dawn Romero also testified at the jurisdictional hearing on the subsequent petitions that in September 2017, the great-aunt contacted her and told her that F.K. was masturbating with increasing frequency.
Also on September 20, 2017, a social worker interviewed S.K., who told her that F.K. had lied to their great-aunt "when he 'got me out of bed, swung me down and dragged me under [the] bed by my hair. Then he kissed, licked and sucked on my tooshie.' " This had happened multiple times.
At the jurisdictional hearing, county counsel also referred to the evidence of F.K.'s extreme emotional reactions, including the testimony by F.K.'s NREFM foster mother, "much of it around the issue of going to the bathroom, and we know from the RCC interview, this is where the child identified the most horrendous abuses occurring, the bathroom at [Charles K.'s] home."
That much of this corroborating evidence is circumstantial does not undermine the court's jurisdictional finding. As noted, even slight circumstantial evidence " 'is sufficient if it tends to connect' " the alleged perpetrator with the alleged act. (In re B.D., supra, 156 Cal.App.4th at p. 984.) Indeed this corroborating evidence need not establish " 'the precise facts' " described by F.K. (Id. at p. 985.) Moreover, the evidence as a whole demonstrates that, regardless of the exact combination of abuse committed, F.K. and S.K. plainly suffered sexual abuse as a result of the parents' and Charles K.'s conduct. (Cf. In re Christina T. (1986) 184 Cal.App.3d 630 [after finding that child was abused, juvenile court erred as a matter of law in finding sexual abuse allegations in petition untrue because it could not determine "whether the molester was the father, the boyfriend, both of them, or possibly some unidentified person"].)
The same evidence in the record shows that S.K. also was sexually abused, whether directly by the parents or Charles K., while unsupervised at Sundance, and/or during interactions with F.K., who acted out sexually with S.K. as a result of being abused himself.
With respect to the continuing risk to the children, as county counsel stated in her rebuttal argument, Mother's response to the evidence regarding sexual abuse was, at a minimum, part of her pattern of refusing to listen to others about risks—such as F.K.'s heart disease and his and S.K.'s dental decay—in that she was in denial about what had taken place while the children were with Charles K. Indeed, both Mother and Matthew M. had acknowledged leaving F.K. and S.K. unsupervised with Charles K., in violation of a family court order that was based on a stipulation between Mother and Charles K. Mother had stated during a September 28, 2017 interview with a social worker that she did not know about any sexual assault that took place at Sundance, but acknowledged "that she had sent the children to their father's home for extended visitation in Oregon for the Sundance festival. [Mother] was not present and the visits were not supervised. She stated both children had attended Sundance, which is a Native American cultural celebration, at least 3 times, and that [S.K.] had attended alone this past year when her brother was in foster care." The evidence shows that Mother also repeatedly denied knowing Charles K.'s whereabouts and the parents had kept Charles K.'s contact information from the social worker both during S.K.'s disappearance and even as the Department attempted to investigate the serious allegations of sexual abuse.
Social worker Romero also testified to the danger posed by the parents, specifically as to A.M., stating that she did not believe he was safe in Mother and Matthew M.'s care because the parents were protective of Charles K. and had claimed they did not know his whereabouts, which prevented investigation of the sexual abuse allegations against him; they did not acknowledge the sexual abuse of F.K. and S.K. until the current hearing; they did not follow the safety plan for A.M.; and they said they did not have computers, but then brought a laptop computer to a meeting at the Department. All of these points made by Romero are also supported by additional evidence set forth in the social studies.
Everyone—the court, the Department, the parties—agreed that F.K. and S.K. had suffered sexual abuse. The parents, however, contend it is possible the abuse took place only at Sundance, and not as a result of Charles K.'s or the parents' conduct. First, as noted, the opportunity for sexual abuse at Sundance resulted from the parents leaving the older children with Charles K., in violation of a court order that he have only supervised visitation with F.K. and S.K., for their safety and protection. The parents violated this order by admittedly leaving the children with him unsupervised and, even beyond that, repeatedly hiding and protecting him from the Department and the court. Second, the variety of abuse described by F.K.—including, inter alia, female masturbation, inserting a finger into a vagina, female on male and male on female oral sex, and inserting crayons in children's anuses—went far beyond what he described occurring at Sundance, i.e., seeing a boy "doing sex" with S.K. by " 'pushing the front privates together,' " making it clear that F.K. was exposed to additional sexual conduct. Moreover, the fact that F.K. lied at times, that he told his NREFM foster mother that in fact the only sexual misconduct to which he was exposed occurred at Sundance, or that he related certain improbable or impossible scenarios in his hearsay statements does not change the fact that the parents' conduct either directly or indirectly led to the sexual abuse of F.K., as already discussed, and placed those two children as well as A.M. at substantial risk of suffering sexual abuse in the future.
In sum, in light of the record as a whole, including both F.K.'s hearsay statements in the social studies and the other relevant evidence, substantial evidence supports the court's finding of sexual abuse as to F.K. and S.K. and a substantial risk of sexual abuse as to all three children. (See I.C., supra, 4 Cal.5th at p. 892; § 300, subd. (d); see also Lucero L., supra, 22 Cal.4th at p. 1247.)
B. The Recordings of the November 15 , 2017 Forensic Interview
The actual recordings of the November 15, 2017 forensic interviews in which F.K. discussed the additional sexual abuse alleged against the parents and Charles K. and his girlfriend, while summarized in the social studies, were not attached to them and, therefore, do not fall within section 355's hearsay exception. Instead, they can be considered as competent evidence only if they satisfy the separate requirements of the judicially created child dependency exception, which include the following: "(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; accord, Lucero L., supra, 22 Cal.4th at pp. 1238-1239.)
In light of our conclusion that the F.K.'s hearsay statements in the social studies, together with other corroborating evidence, provides substantial evidence to support the juvenile court's jurisdictional findings, it is unnecessary to undertake a separate analysis of the competency of his hearsay statements in the November 15, 2017 forensic interview recordings pursuant to the judicially created child dependency exception to the hearsay rule. Thus, even assuming the recordings would not satisfy the sufficient indicia of reliability requirement of this exception, that would not change the result, given that "[t]he role of the reviewing court is not to reverse judgments where they may have been based in part on excludable evidence. Rather, the duty of the reviewing court is to strip away the inadmissible evidence and ask whether enough admissible evidence remains to sustains the court's finding." (In re Christina T., supra, 184 Cal.App.3d at p. 639; cf. Lucero L., supra, 22 Cal.4th at pp. 1249-1250 [reviewing court may disregard juvenile court's reasoning because "the decision of the juvenile court, if correct, will be upheld even if the stated reasons for the decision are erroneous or incomplete"].)
In conclusion, we find that F.K.'s hearsay statements summarized in the social studies and the additional evidence in the record corroborating those statements constituted substantial evidence that F.K., S.K., and A.M. came within subdivision (d) of section 300. (See Lucero L., supra, 22 Cal.4th at p. 1247.)
II. The Court's Denial of Mother's Request to Have F.K. Testify
Mother contends the court violated her due process rights when it denied her request for F.K. to testify at the jurisdictional hearing on the subsequent petitions.
On April 13, 2018, F.K.'s attorney told the court that Mother's attorney had given her an "Order to Attend Court or Provide Documents," which "looked like a subpoena" for F.K. to testify at the April 17 jurisdictional hearing in this matter. F.K.'s attorney also filed a motion to quash the subpoena on the ground "that requiring him to testify would cause him serious psychological harm that outweighs any potential benefit the court would gain." Counsel attached a letter from F.K.'s therapist stating that requiring him to testify "would be traumatizing and detrimental to [his] mental health."
At a hearing on the motion, Mother's attorney said that F.K.'s testimony was necessary to show that F.K. had been afraid of his great-aunt and had been abused at her house, and "that she had told him to specify that the parents were involved in the behavior that he was describing or had some influence on it." She said that F.K. had already told this to the NREFM foster parents, who would be testifying at the hearing. She also said that F.K.'s testimony could be taken in chambers with only the judge and the attorneys present, with the proceeding kept as informal as possible. The court found that "probing a young child's mind on the issue of undue influence, I think it is fairly problematic. So I would be inclined not to allow the child to testify and allow in the statements that are attributed to the child" through the NREFM foster parents' testimony.
As already discussed in part I., ante, due process is satisfied when the hearsay statements of a truth incompetent child summarized in a social study are admitted at a jurisdictional hearing and either the statements provide special indicia of reliability or are corroborated. (See Lucero L., supra, 22 Cal.4th at pp. 1246-1248.) In this case, in which F.K.'s hearsay statements, set forth in the Department's social studies, were admissible under section 355 and were also corroborated by other evidence admitted at the jurisdictional hearing, F.K.'s failure to testify at the hearing did not violate due process. (See ibid.)
That a juvenile court may, for example, require a child to testify in chambers and outside of the presence of the parents using closed circuit television does not mean the court's refusal to order F.K. to testify in such a way violated due process. In re Amber S. (1993) 15 Cal.App.4th 1260, cited by Mother, does not hold otherwise. (See id. at p. 1262 [holding that juvenile court had inherent power to order use of closed circuit television to take testimony of children outside presence of their parents, "notwithstanding the absence of any express statutory authorization for the procedure in dependency proceedings"].) --------
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.