In re A.C.
Filed 4/16/13 In re A.C. CA6
Reposted to provide correct filing date; no change to
text
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
In re A.C., a Person Coming
Under the Juvenile Court Law.
H038929
(Santa Clara
County
Super. Ct.
No. JD21014)
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN’S SERVICES,
Plaintiff and
Respondent,
v.
B.C.,
Defendant and
Appellant.
Appellant
B.C. appeals from an order adjudging his son A.C. a dependent child under
Welfare and Institutions Code section 300, subdivisions (b) [failure to
protect] and (j) [abuse of sibling]. He
contends: (1) there was
jurisdiction, and (2) the juvenile court erred in considering hearsay evidence.
Factual and
Procedural Background
Appellant
and S.C. (mother) are the parents of A.C., who was born in December 2011.
(Department) filed a juvenile dependency petition alleging that A.C. came
within the jurisdiction of the juvenile court under section 300, subdivisions
(b) and (j). The petition alleged that
A.C. was at substantial risk of serious physical harm due to appellant’s
physical and sexual abuse of A.C.’s half siblings and the mother’s inability to
adequately protect him. The petition
included allegations that: (1) there was
domestic violence between the parents, (2) appellant had been arrested after
A.C.’s half sisters, 16-year-old Deborah and 17-year-old Lydia, accused him of
having sexual intercourse and oral sex with them on multiple occasions and
threatening them with physical harm if they disclosed the abuse, (3)
appellant’s parental rights to A.C.’s half sibling, Stephen, were terminated
based on physical abuse by appellant and domestic
violence between appellant and Stephen’s mother, (4) appellant physically
abused A.C.’s half sibling, Gabriel, when he was an infant, (5) appellant had a
criminal history, (6) the mother minimized the domestic violence between her
and appellant and would allow appellant to return home after his release from
custody, and (7) the mother did not believe that appellant sexually or
physically abused any of A.C.’s half siblings.
The
jurisdiction/disposition report, dated February
15, 2012, recommended that the court take jurisdiction of A.C.,
for the mother, and no services be provided for appellant. The report summarized the domestic violence
perpetrated by appellant against his ex-wives and the mother, appellant’s
physical abuse of his other children, and appellant’s sexual abuse of his
daughters.
Vicky R.
was appellant’s first wife. They were
married in 1991 and they are the parents of Stephen,
Lydia, and Deborah. In 1993, Stephen became a dependent of the
court when he was 11 months old due to physical
abuse and domestic violence. At that
time, Stephen had multiple bruises on his head, face, and neck as well as a
possible fractured femur. These injuries
were found consistent with abuse. Though
appellant and Vicky R. were provided with reunification services, they failed
to reunify with Stephen and their parental rights were terminated. Vicky R. originally denied any abuse of
Stephen and domestic violence between her and appellant. However, in 2011, she reported that appellant
had physically abused Stephen. She
explained that she was too terrified of appellant at the time to tell the truth
because he was so abusive to her.
E. Z. was
appellant’s second wife. In 1998, it was
reported that Deborah and Lydia
were exposed to domestic violence by appellant against E. Z. Appellant was arrested for assaulting E. Z.,
and she obtained a restraining order against him. After E. Z. was granted temporary legal
guardianship of Deborah and Lydia,
the referral was closed.
Appellant
married Vicky D. in 2003.
name="_ftnref3" title="">[3] Vicky D. reported that appellant habitually
psychologically and physically abused her.
Appellant pushed her against walls, restrained her, hit her, choked her,
threatened to kill her, bit her, locked her in the bedroom or bathroom, and
never let her talk to anyone. He also
called her names and forced her to have sex with him. After their son Gabriel was born in 2004,
appellant began abusing him. He grabbed
or yanked Gabriel from Vicky D.’s arms, threatened to give him away, shook him
continuously, spun him in his jumper seat until his eyes crossed and then
laughed, yelled at him, and slammed the wall loudly to scare him. He then prevented Vicky D. from comforting or
caring for Gabriel.
The mother
and appellant met at church in 2005.
They were married in 2008. The
mother has a bachelor’s degree in human development and has worked as a
preschool teacher for many years.
In 2009,
Gabriel became a dependent of the court because Vicky D. was unable to care for
him due to his severe mental health issues.
Reunification services were offered to Vicky D., but they were not
offered to appellant. Appellant’s whereabouts
were unknown at that time.
In December
2009, Lydia and
Deborah were adjudged dependents of the court in Sacramento
County due to physical and
emotional abuse by E. Z. The girls were
then placed with appellant over the social worker’s objection, and the case was
transferred to the juvenile court in Santa Clara
County.
In May
2010, Lydia was
placed into protective custody after appellant reported that he could no longer
care for her. Lydia
remained a dependent of the court, and she and appellant participated in family
reunification services due to her emotional and behavioral problems. In June 2011, the juvenile court placed Lydia
with appellant and ordered family maintenance services.
In December
2010, it was reported that Deborah told friends that she was being sexually
abused by appellant. However, Deborah
denied making this disclosure and the referral was closed. A few days later, appellant successfully
completed family maintenance services and the juvenile court dismissed the case
involving Deborah with full custody to appellant.
In October
2011, Lydia and
Deborah were placed into protective custody after appellant was arrested for
sexually abusing Deborah. Deborah
reported to her basketball coach that appellant had been physically abusive in
the past and that her life was a “living hell†at home. After the coach contacted the police, Deborah
told the investigating officer that she had sexual intercourse with appellant
25 times and oral sex twice since she was 14 years old. She also stated that appellant had threatened
to “hurt†her and “throw [her] into a mental institution†if she reported the
abuse. When Deborah reported the abuse, Lydia
denied being sexually abused by appellant and claimed that Deborah was
lying. However, in December 2011, Lydia
reported that she had been sexually abused by appellant as well. She also stated that she had said that
Deborah was lying because she was afraid of appellant due to his past
threats. Lydia
stated that she had sexual intercourse with appellant more than 20 times and
oral sex approximately five times since she was 15 years old. Appellant had also threatened her if she
reported the abuse. The report includes a
detailed account of appellant’s sexual abuse of Lydia
and Deborah.
In addition,
both Deborah and Lydia
reported that appellant was verbally and physically abusive to the mother. Appellant called the mother names and fought
a lot with her. Deborah described a
fight between appellant and the mother after which the mother told her that
appellant had choked her. The mother
also told Deborah that appellant had “done it more than once.†Deborah heard the mother threaten to leave on
another occasion, and appellant said, “Do it, and I’ll kill you.â€
The
jurisdiction/disposition report summarized appellant’s criminal history. In 1995, appellant was convicted of
possession, manufacture, or sale of a dangerous weapon (Penal Code, former § 12020, subd. (a)), a felony, after the
police responded to a domestic dispute and found appellant in his garage with
nunchucks and a 12-inch hunting knife with Lydia, who was then four months
old. A witness stated that appellant was
“acting crazy and wasn’t thinking straight†and threatened to kill Lydia if anyone
tried to enter the garage to speak to him.
In 1999,
appellant was convicted of infliction of corporal injury on a spouse (Penal
Code, § 273.5, subd. (a)), a felony,
after an incident in which appellant hit E. Z. several times in the stomach and
kicked her as she tried to flee. At that
time, E. Z. reported other incidents of abuse.
She also stated that she was afraid that if she reported abuse,
appellant would beat her more. According
to E. Z., appellant had a bad temper and took his anger out on others. On one occasion, appellant threw their puppy
and broke her leg.
In 2005,
appellant was convicted of infliction of corporal injury on a spouse (Penal
Code, § 273.5, subd. (a)), a
misdemeanor, after Vicky D. reported that appellant had grabbed her and
squeezed her arm with such force that she had a large bruise. She described appellant as a “religious
zealot,†who had ordered her to “submit†to him because it was God’s word.
The
jurisdiction/disposition report also stated that the mother minimized the
domestic violence between her and appellant, denied that appellant had abused
her in the past, did not believe that appellant either sexually or physically
abused any of his children, and did not believe that she needed services to
protect A.C. The mother also “stated
that she was aware of [appellant’s] domestic violence convictions in the past
and that he lost his parental rights to his first child, but she still [did]
not believe that he was abusive toward any of his ex-wives or other
children.†The mother reported that she
did not know what she would do regarding A.C.’s living arrangements and his
care when appellant was released from custody.
Based on the mother’s denial, the social worker concluded that it was
“very likely†that the mother would allow appellant to return to the home,
thereby placing A.C. at risk.
An addendum
report, dated March 22, 2012, stated that the mother and A.C. had recently
moved to San Mateo County. The social
worker also informed the court that the mother continued to deny any domestic
violence between her and appellant and she did not believe that Lydia and
Deborah had been sexually abused by appellant.
The mother stated that she believed that appellant’s ex-wives had lied
about abuse and that appellant “has been nothing but wonderful to her and his children.†Attached to the report was a copy of the
second amended petition regarding Deborah, which the court had sustained
earlier that month.
In June
2012, the Department filed a second amended petition. The second amended petition added allegations
that the juvenile court had sustained second amended petitions and took
jurisdiction of both Deborah and Lydia after finding that their reports of
threats and sexual abuse were true.
A second
addendum report, dated July 24, 2012, stated that appellant was in jail
awaiting trial on charges that he sexually abused his daughters. The Department also recommended that
jurisdiction be completed and the case be transferred to San Mateo County for
disposition. Attached to the report was
a copy of a minute order, dated June 22, 2012, which stated that the
allegations in the first amended supplemental petition regarding Lydia were
true.
On August
17, 2012, the jurisdiction hearing was held.
The jurisdiction/disposition, addendum, and second addendum reports were
admitted into evidence. The only witness
was Edwin Patrick, the supervising social worker, who testified as an expert on
risk assessment of dependent children.
He testified that Susan Lee was the investigative social worker, but she
went on leave in late June. According to
Patrick, A.C. came to the attention of the Department because he had two half
siblings who were dependents of the court.
Patrick never spoke to either appellant or the mother. However, Lee consulted with him on a regular
basis. Patrick also reviewed police
reports involving appellant and the dependency reports from Sacramento
County.
Patrick
acknowledged that in cases where a father has sexually abused his daughter, it
is not common that the father has also sexually abused the son. However, Patrick opined that A.C. was at risk
of sexual abuse from appellant because “the motivation is not sex, the
motivation is domination and control.â€
He explained that appellant “has exhibited a pattern of behavior that
shows that he dominates and controls his family.†He noted that appellant physically abused his
previous wives, physically abused the infant child Gabriel, sexually abused his
two daughters, and physically abused the mother. According to Patrick, the mother could not
protect A.C. because she “doesn’t believe anyone -- that [appellant] has harmed
anyone and that the previous wives of [appellant are] lying, the information
about Gabriel is false, the testimony regarding Debra and Lydia [] is a lie as
well. [¶] However, the mother did disclose to Debra
that [appellant] physically abused her and threatened her, but the mother has
since recanted.†Patrick concluded that the mother was “in severe denial†and
was controlled by appellant, which placed A.C. at risk if he was returned to
the home. Patrick was not concerned that
the mother would abuse A.C. However, the
mother had indicated that if appellant was released from jail, she would allow
him to return home. Patrick was also
concerned that if the petition was dismissed, the mother would leave with A.C.
and reconnect with appellant in the event that he was released from jail.
Following
argument, the juvenile court sustained the petition and stated: “What is remarkable to me is, when I look at
. . . the cases regarding sexual abuse, [appellant] falls squarely in the
aberrant behavior category. He has for
over a 10-year period either done physical or sexual harm to some member of his
family. And I think the expert’s
testimony regarding risk assessment is quite on point when it talks about the
dominion and control exhibited by [appellant] toward his family members
regardless of their age. It doesn’t
matter if they’re as young as Gabriel was or as old as his daughters were, his
behavior toward them has been violent.â€
The juvenile court also noted that it was “absolutely uncontrovertedâ€
that the mother did not believe that appellant sexually abused his daughters,
physically abused two of his sons, and was violent towards his ex‑wives. The juvenile court concluded that the mother’s
refusal to acknowledge appellant’s behavior put A.C. at risk.
On
September 18, 2012, the juvenile court conducted the disposition hearing. The juvenile court adjudged A.C. a dependent
of the court and ordered that he be removed from appellant’s custody. Family maintenance services were ordered for
A.C. and the mother, and the case was transferred to San Mateo County.
Sufficiency of Evidence
Appellant
contends that there was insufficient evidence to support jurisdiction under section
300, subdivisions (b) and (j).
“
300 jurisdiction
hearings require a preponderance of the evidence as the standard of proof. (§ 355, subd. (a).) In reviewing the sufficiency of the evidence
on appeal, we look to the entire record for substantial evidence to support the
findings of the juvenile court. We do
not pass on the credibility of witnesses, attempt to resolve conflicts in the
evidence, or determine where the weight of the evidence lies. Instead, we draw all reasonable inferences in
support of the findings, view the record in the light most favorable to the
juvenile court’s order and affirm the order even if there is other evidence
supporting a contrary finding.
[Citations.] The appellant has
the burden of showing there is no evidence of a sufficiently substantial nature
to support the order. [Citations.]†(In re
A.M. (2010) 187 Cal.App.4th 1380, 1387-1388 (A.M.).)
In order to
sustain a petition under section 300, subdivision (b), the juvenile court must
find that “the child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of the failure
or inability of his or her parent . . . to adequately supervise or protect the
child.†(§
300, subd. (b).) The juvenile court must
determine “whether circumstances at the
time of the hearing subject the minor to the defined risk of harm. [Citations.]
Thus, the past infliction of physical harm by a caretaker, standing
alone, does not establish a substantial risk of physical harm; ‘[t]here must be
some reason to believe the acts may continue in the future.’ [Citations.]â€
(In re Rocco M. (1991) 1
Cal.App.4th 814, 824, fn. omitted.)
Relying on
177, In re Maria R. (2010) 185
Cal.App.4th 48, and In re Alexis S.
(2012) 205 Cal.App.4th 48, appellant argues that there was insufficient
evidence that A.C. was currently at substantial risk of harm since his gender
was different from that of his sexually abused siblings.
We first
note that other courts have held that male siblings of sexually abused females
are at risk of sexual abuse, because “aberrant sexual behavior by a parent
places the victim’s siblings who remain in the home at risk of aberrant sexual
behavior.†(In re P.A. (2006) 144 Cal.App.4th 1339, 1347; accord
1405, 1414; In re Karen R. (2001) 95
Cal.App.4th 84, 90-91.)
name="_ftnref4" title="">[4] However, we need not resolve which line of
authority to follow, since the present case includes appellant’s extensive
history of violence against family members regardless of their age or gender.
Here, the
juvenile court had sustained petitions which included allegations that
appellant had engaged in more than 20 incidents of sexual intercourse with each
of his daughters during the past year and a half. That A.C. differed in age and gender from
Deborah and Lydia was not particularly relevant, because, as Patrick opined,
appellant’s “motivation [was] not sex, the motivation [was] domination and
control.†He explained that appellant had
“exhibited a pattern of behavior that shows that he dominates and controls his
family.†The record fully supports
Patrick’s opinion.
Appellant
had a significant history of violence against his children when they were
infants. In 1993, Stephen, who was 11
months old, became a dependent of the court due to physical abuse perpetrated
by appellant. Appellant’s parental
rights to Stephen were eventually terminated.
In 1995, police officers responded to a domestic dispute in which
appellant, while armed, was threatening to kill Lydia, who was then four months
old. In 2004, appellant was also
physically and psychologically abusive to Gabriel, who was then an infant. Despite this history of abuse and having been
previously offered family reunification and family maintenance services, there
was no evidence that appellant had attempted to ameliorate his violent
tendencies towards children.
In addition
to physical abuse, appellant also exposed his children to domestic
violence. As In re Heather A. (1996) 52 Cal.App.4th 183 explained: “It is clear to this court that domestic
violence in the same household where children are living is neglect; it
is a failure to protect [the minors] from the substantial risk of encountering
the violence and suffering serious physical harm or illness from it. Such neglect causes the risk.†(Id.
at p. 194.) Moreover, “ ‘[p]ast violent behavior in a
relationship is “the best predictor of future violence.†Studies demonstrate that once violence occurs
in a relationship, the use of force will reoccur in 63% of those relationships.
. . . Even if a batterer moves on to
another relationship, he will continue to use physical force as a means of
controlling his new partner.’
[Citation.]†(
576.) Here, appellant was convicted of
infliction of corporal injury on a spouse in 1999 and 2005. In addition to physically abusing E. Z. and
Vicky D., appellant was physically abusive to Vicky R. and the mother.
appellant and the mother.
women, there was a substantial risk that A.C. would be exposed to domestic
violence.
In sum, the
record establishes that appellant physically abused his two infant sons,
threatened to kill his infant daughter, exposed his children to domestic
violence by physically abusing three ex-wives and the mother, and sexually
abused his two daughters. Despite
overwhelming evidence, the mother refused to acknowledge that appellant had
engaged in any of this behavior. Thus,
there was substantial evidence to support the juvenile court’s finding that
there was a substantial risk that A.C. would suffer serious physical harm as a
result of his parent’s inability to protect him.
Appellant
also argues that A.C. was not at substantial risk of harm because he was
incarcerated. This same argument was
rejected in In re Carlos T. (2009)
174 Cal.App.4th 795. In that case, the
Court of Appeal stated: “It certainly is
true that at that time father had no immediate access to [the minors] due to
his incarceration. But father had not
yet been sentenced on his sexual molestation convictions, and he still had the
right to appeal those convictions. [¶]
is a possibility that father would be released from custody, and there is every
reason to believe that father would resume his sexual abuse of [the minors]
without the state intervening to prevent him from obtaining access to
them.†(Id. at p. 806.) Similarly,
here, appellant has denied the charges and there remains the possibility that
he would be released from custody.
Since we
have found that there was substantial evidence to support the juvenile court’s
finding of jurisdiction under section 300, subdivision (b), we need not
consider the sufficiency of the evidence to support its finding under section
300, subdivision (j). (
873, 875.)
Appellant
next contends that the juvenile court erred in admitting hearsay evidence.
On
cross-examination, Patrick was asked if he could identify any statements in the
reports in which the mother had indicated that she would let appellant back
into the home if he were released from custody.
He was unable to do so. He then
testified, “But I distinctly remember having a conversation with Susan Lee
regarding the mother -- the conversation with her where she’s indicated that
she will allow the father back into the home.â€
Appellant objected to the testimony as hearsay, noting that “[i]f that
was something that was found by the social worker to come under the hearsay
exception, it should have been in the social study.†The juvenile court noted that the
jurisdiction/disposition report stated Lee’s opinion that it was “very likelyâ€
the mother would allow appellant to return to the home and have unsupervised
contact with A.C. The juvenile court
overruled the objection.
Evidence
Code section 1200 states in relevant part that “ ‘[h]earsay evidence’ is evidence of a statement that was
made other than by a witness while testifying at the hearing and that
prove the truth of the matter stated.†Hearsay is inadmissible, unless it falls
within an exception to the general rule.
(Evid. Code, § 1200, subd.
(b).) Evidence Code section 1201
authorizes the admission of multiple hearsay evidence under certain
circumstances. This statute provides
that “[a] statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that
the evidence of such statement is hearsay
evidence if such hearsay
evidence consists of one or more statements each of which meets the
requirements of an exception to the hearsay rule.†(Evid. Code, §
1201.) Exceptions to the hearsay rule
include any admissions by a party.
(Evid. Code, § 1220.) Thus, the mother’s statements to Lee were
admissible if Lee had been testifying or if they had been included in the
reports. (See § 355, subd. (b).)
Since Lee did not testify and the mother’s statements to Lee were not
included in the reports, the mother’s statements to Lee were not admissible to
prove that she would allow appellant to return to the home.
However,
expert testimony in the form of an opinion can be based on information “made known to
him at or before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates.â€
(Evid. Code, § 801, subd.
(b).) “Hearsay relied upon by experts in formulating their opinions
is not testimonial because it is not offered for the truth of the facts stated
but merely as the basis for the expert’s opinion.†(
731, 747.) Here, the parties stipulated
that Patrick would testify as an expert on risk assessment of dependent
children. In forming his opinion as to
the risk to A.C., he relied on the social worker’s statement to him that the
mother had told her that she would allow appellant to return home if he was
released from custody. Patrick
reasonably relied on this statement in forming his opinion that A.C. was at
risk of serious harm.
Even
assuming that the juvenile court erred in admitting this evidence, it was not
prejudicial. Where an alleged error
violates state evidentiary law, this court examines whether “ ‘ “ ‘it is reasonably probable a result
more favorable to the appellant would have been reached absent the error.’ †’
[Citations.]†(
111, 134.) Here, the
jurisdiction/disposition report stated that the mother minimized the domestic
violence between her and appellant, did not believe that appellant sexually or
physically abused any of A.C.’s half siblings, and did not believe that she
needed to engage in services to protect A.C.
The mother also “stated that she was aware of [appellant’s] domestic
violence convictions in the past and that he lost his parental rights to his
first child, but she still [did] not believe that he was abusive toward any of
his ex-wives or other children.†Thus,
the mother had no reason not to reunite with appellant if he were released from
custody. Accordingly, it is not
reasonably probable that the result would have been more favorable to appellant
if her statement had not been admitted.
Disposition
The order
is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Premo, Acting P. J.
______________________________
Grover, J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
name="_ftn2" title="">[2] The
mother is not a party to the appeal.
