In
re Daniel O.
Filed
10/15/13 In re Daniel
O. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In
re DANIEL O., III, et al.,
Persons
Coming Under the Juvenile Court Law.
B243435
(Los
Angeles County
Super. Ct. No. CK67881)
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DANIEL
O.,
Defendant and Appellant.
APPEAL from an order of the
Jacqueline H. Lewis, Juvenile Court Referee.
Affirmed.
Daniel G. Rooney, under appointment by
the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County
Counsel, and Kimberly A. Roura, Associate County Counsel, for Plaintiff and
Respondent.
introduction
Father, Daniel O. (Daniel), appeals
from a dependency court order
sustaining dependency jurisdiction over his three
Y.; (2) Mariah, age four, whose mother is Ashley G.; and (3) Daniel O.,
III (Danny), six months of age, whose mother is Tina L. Jurisdiction was sought over these children
largely based on allegations that Daniel physically and sexually assaulted
Aileen C., the four-year-old daughter of one of his female companions, Virginia
M. Daniel asserts that the dependency
court erred in admitting the out-of-court statements of Aileen C. regarding the
abuse, when Aileen was found not competent to testify at trial and thus could
not be cross-examined. He further
asserts that substantial evidence did not support the findings that he
assaulted Aileen, or that his three children were at serious risk of physical
or sexual abuse. We affirm the order
sustaining jurisdiction.
factual and procedural background
I.
On Sunday, October 9,
2011, Aileen
was taken to the hospital, where staff called law enforcement. At the hospital, Deputy Sheriff Guadalupe
Lopez interviewed Aileen’s paternal grandmother (Grandmother), her father Mario
C., and Aileen herself. According to the
police report, Grandmother stated that Aileen began to complain of pain in her
lower abdominal and vaginal areas as soon as Grandmother picked her up on the
afternoon of Friday, October 7, 2011.
When Grandmother questioned Aileen about what had happened, Aileen
responded by holding her vaginal area with both hands and saying “tu-tu.†When Grandmother took Aileen to the bathroom
later, she saw a clear discharge with blood in her underpants. When Aileen was done urinating, Grandmother
wiped her and more clear discharge with blood appeared on the toilet paper.
Grandmother said she waited until
Sunday to tell Mario because she thought maybe Aileen had just bumped herself
and the pain was going to go away, but Aileen continued to complain of
abdominal and vaginal pain. Grandmother
and Mario drove her to the hospital on Sunday evening.
Deputy Lopez sat next to Aileen’s
hospital bed and spoke with her. Aileen
was excited to have her there, asked her questions about her equipment, and
played with her flashlight. When asked
why she was in the hospital, Aileen said she was not sure. Deputy Lopez asked her if she felt pain
anywhere, and Aileen said, “Daniel punched me,†and made a fist with her left
hand and motioned toward her stomach.
Deputy Lopez asked who Daniel was, and Aileen looked down and did not
want to talk about Daniel. Deputy Lopez
asked if she could draw a picture of Aileen so Aileen could show her where she
was hurt. Aileen answered, “I was
holding hands with my friend and he touched us both and grabbed us right here,â€
as she motioned to her vaginal area.
Deputy Lopez drew a sketch of a figurine, and Aileen took her pencil and
drew what she described as a “sad face, ‘cause I’m hurt of Daniel.†She also scribbled in the hand areas and
said, “Daniel hit me here when I’m with Mom.â€
When asked what else Daniel did, Aileen began to scribble in the breast
area and stopped and motioned with both hands in her breast area. She said, “Daniel rubbed me and my friend
here and grabbed me hard here,†as she motioned towards her vagina and closed
her right hand to make a grabbing motion.
Deputy Lopez asked who her friend was and Aileen said, “A girl who lives
there with my mom, I don’t know.†She
refused to write on the sketch and placed the pencil back on Deputy Lopez’s
uniform shirt. Deputy Lopez attempted to
ask her more questions, but Aileen stayed quiet, looked down, and played
nervously with her hands.
Grandmother said Mario and Aileen’s
mother, Virginia, had been separated for two years, and per their agreement to
share custody, Grandmother picked up or dropped off Aileen and her siblings
Jeremiah and Nalani every other Friday.
She believed Virginia had a live-in boyfriend named
Daniel. Aileen and her siblings had
previously told her that Daniel punched them in the stomach, and after one stay
at Virginia’s home they had returned home with
bruises.
Mario said that Grandmother had
informed him that she found blood spots and discharge on Aileen, and he
reported that Aileen had complained of pain in her abdominal area for two
days. He indicated that during the
custody proceedings regarding Aileen and her siblings, the children alleged
that Daniel hit them and caused bruising.
The judge in their case was notified of the incidents but a criminal
report was not generated. In order to
avoid problems, Mario only communicated with Virginia through Grandmother, and Grandmother
picked up and dropped off the children.
He had not seen or communicated with Daniel and did not know who Daniel
was.
Deputy Lopez spoke to the attending
physician, who did not find anything abnormal but stated he was not a
specialist and could not determine if foul play had occurred. A sexual assault kit was performed on Aileen
the next day, but the nurse who administered it could not confirm or negate
sexual abuse and did not question Aileen.
Deputy Lopez recovered from Mario’s house the clothing Aileen wore on
the day bloody discharge was found in her underwear. The underwear reportedly had been washed and
worn once since the incident.
The emergency physician record lists
the chief complaint as an “alleged sexual assault possibly at mom’s
house.†It records an observation by
Grandmother that Aileen’s vaginal opening looked “wider than usual,†that
Aileen was afraid to be touched there, and that there were “a lot of men†going
to Aileen’s mother’s place. No bleeding,
discharge, swelling or tenderness of the genitalia were found.
The report from the rape kit
examination states that the examination neither confirmed nor negated sexual
abuse. The aftercare instructions for
Aileen included recommendations for treating “child vulvitis.â€
II.
A.
1.
During a caseworker’s private
interview with Aileen, the girl appeared very shy, quiet, and
apprehensive. The caseworker asked if
Aileen knew what her private parts are, and she nodded her head, “yes.†When asked to point to her private parts,
Aileen shook her head, “no.†When asked
two times if anyone had ever touched her private parts, Aileen stayed quiet and
played with her puppy. When the
caseworker asked if it was okay that she was asking these questions, Aileen
shook her head “no.†When the caseworker
told her she did not have to talk to her if she did not want to, Aileen grabbed
her puppy and ran inside the house.
Subsequently, a deputy from the
Special Victim’s Bureau questioned Aileen about whether anyone had touched her
vagina, using a drawing of a girl’s body, and Aileen said no. When asked if anyone had ever hit her, she
again said no.
When another dependency investigator
later interviewed Aileen, she was friendly, cooperative, and outgoing until
questioned about Daniel, at which point her demeanor changed, and she became
tense and quiet and would not make eye contact.
She gave only limited responses to questions regarding the alleged
abuse. When asked if Daniel had been
physically abusive towards her, Aileen responded, “I don’t want to talk about
him.†When asked why, she said, “He’s
mean.†She went on to state, “He threw
me on the bed and it hurt.†In response
to multiple further questions about possible physical abuse by Daniel, Aileen
kept repeating, “He’s mean.†With
respect to alleged sexual abuse, when shown a diagram of a female girl and asked
if she knew where the private parts were, Aileen nodded “yes,†and stated, “I
don’t want to talk, can I go home?†The
caseworker asked if Daniel ever touched her in her private parts, and Aileen
responded by stating, “I want to sleep in my room,†and when asked to explain,
she stated, “Mom says I have to sleep in there (referring to mother’s bedroom),
but I want to sleep in my room.†When
asked who else sleeps in the mother’s room, Aileen said, “I don’t want to talk,
I am scared.†The caseworker terminated
the interview because it appeared Aileen was experiencing a great deal of
distress.
2.
Daniel denied the allegations and said
he was never alone with Aileen. He
stated that he lived with his mother as well as Tina, the mother of his
youngest child, Danny. He sometimes
brought his daughter Mariah to Virginia’s home on weekends so she and Aileen
could play together, but he denied ever touching either child, or any child,
inappropriately. He said he was rarely
alone with Mariah either.
Daniel agreed to take a polygraph
examination, which was conducted on October 25, 2011.
Daniel passed all the questions except five or six regarding whether he
touched Aileen’s vagina. He later stated
that he did not believe the results, and that when the examiner was asking
questions about the sexual abuse he kept hitting the button. The dependency court ultimately excluded the
evidence of the polygraph results.
Daniel claimed that Grandmother was
“putting stuff in [Aileen’s] head.†He
reported that Aileen’s paternal grandfather had confronted him at Aileen’s
preschool one day, cursing at him and saying he had hit the kids. Daniel claimed that when Aileen and her
siblings go to Mario’s house, they come back dressed in old clothes and once
Jeremiah came back with a bruise.
3.
In an interview with a caseworker, Virginia appeared shocked by the allegations
of Daniel’s sexual abuse of Aileen and denied that they were true. She stated that she was always with her
children and did not leave Daniel alone with them, and if she had to go out,
the maternal grandmother watched them.
She stated that she was very aware of who her children were around
because she was molested as a child by a family friend and she never wanted
that to happen to her daughters. She
denied that Daniel lived with her but stated he slept over sometimes. When the caseworker informed her that it was
also alleged that Daniel had touched another little girl who was with her
daughter, Virginia stated that Daniel had a daughter
named Mariah, who is also four years old, who comes over to play with Aileen
when Daniel has her on the weekends.
Virginia stated that when the children are
going to Mario’s home, the two girls cry and say they do not want to go. The week before, Aileen had stated, “I’m a
bad girl.†When Virginia asked her what had happened, Aileen
would not tell her.
In a later interview, Virginia told a dependency investigator that
she had never seen anything to lead her to suspect Daniel. Aileen had never mentioned any abuse or
complained of pain. According to Virginia, Aileen was an active, happy girl,
who liked to play with Daniel and was always excited to see him. She insisted that Daniel was never alone with
the children. When told that Daniel had
failed a polygraph test about the molestation, Virginia stated that this was “concerningâ€
and that she wanted to find out what had really happened.
4.
Aileen’s five-year-old brother
Jeremiah denied ever being touched in his private parts. When asked if he liked Daniel, Jeremiah said,
“sometimes yes, sometimes no.†He said
sometimes Daniel and Virginia fought, but he denied that they pushed or hit
each other. He said he felt safe with
Virginia and Daniel, and with Mario.
In a subsequent interview, a
dependency investigator asked Jeremiah if Daniel had been physically abusive
towards him or any of the other children.
Jeremiah stated, “I want to live with my mom but no Daniel scares me.†When asked why Daniel scares him, Jeremiah
stated, “He makes my mom cry . . . in the car he went like this,†and Jeremiah
demonstrated a slapping or pushing movement.
When asked if Daniel hits him, his siblings, or his mother, Jeremiah
responded by stating, “He makes my mom cry.â€
Daniel again said he had never been touched in his private parts and had
not seen his sisters being touched there.
Aileen’s two-year-old sibling Nalani
was not able to provide a meaningful statement.
5.
Mario stated that Aileen had never
said anything about Daniel prior to this incident, but that she appeared to be
afraid every time his name was mentioned.
He also said that lately she had been really quiet and only wanted to play
by herself, which was unlike her. He had
not noticed any sexualized behavior.
In a later interview with a dependency
investigator, Mario said he believed his daughter “100 percent†and asserted
that she would not make this up. He
stated that it was the police officer at the hospital who told him what Aileen
had said, and Aileen had never said anything to him before. He said that Aileen had told him several
months before that Daniel hit Jeremiah, but that his children did not talk
about Daniel much, except Jeremiah would sometimes talk excitedly about
Daniel’s car and about how he drives really fast. Mario also said that when he asks Aileen
about Daniel she gets really nervous, so he does not bring it up. He noticed that around the time of the
hospital visit Aileen had been playing by herself and not really wanting to
play or talk with anyone else, but that was better now. He also noticed that she “plays with herselfâ€
a lot while watching television.
Grandmother told a caseworker that on
the Friday evening after she picked up Aileen, she was putting a diaper on
Aileen, who sometimes still wet the bed.
Aileen pointed to her private parts and said they hurt.
Aileen said, “Daniel Ochoa touch me.â€
Grandmother said she told Aileen, “No, Daniel Ochoa did not touch
you.†Aileen stated “Yes he did.†Grandmother did not ask Aileen how or when
Daniel touched her. Grandmother stated
that she called one of her sons and told him, but she did not tell Mario
because she was afraid he would overreact and do something stupid. She wanted her other son to talk to
Mario. When asked why she waited until
Sunday to take Aileen to the hospital, she said she was at the hospital all day
Saturday with her sick and blind husband.
When asked if Aileen had ever mentioned Daniel before, Grandmother
stated that the children would tell her and Aileen’s father that Daniel hit
them.
The caseworker asked Grandmother if
she had noticed Aileen exhibiting any sexualized behavior, and Grandmother said
that about five months earlier, she noticed that Aileen was taking a long time
in the bathroom, and Grandmother caught her touching herself in the
bathroom. When Grandmother asked her why
she was touching herself, Aileen looked at her and cried. Grandmother had also observed Aileen looking
at herself in the mirror and touching her breast. On another occasion, when Mario’s adult
friend came over for the first time, Aileen tried to rub herself on him and sit
on his lap, to the point that the friend became uncomfortable and left.
Grandmother told a dependency
investigator that she had not asked Aileen about the abuse because she did not
want to upset her more. The only thing
Aileen had said was that she did not want to see her mother or Daniel and that
she was scared. Aileen had been waking
up in the night complaining of nightmares and Grandmother would find her curled
up in a ball in the corner of the bed.
She would not talk to Grandmother and only wanted to talk to Mario. She had also been wetting the bed lately.
6.
Aileen’s maternal grandmother stated
she had no concerns of abuse by Daniel, and said she and Virginia were always
home with the children. She claimed that
Mario’s family was upset that Virginia had a boyfriend. Virginia’s father, who lives in the back
duplex of Virginia’s home, stated he had never seen
Daniel hit Aileen or touch any of the children inappropriately. Aileen’s maternal aunt, who also lives in Virginia’s home, stated that Daniel seemed
like a “good guy†and that he got along well with the kids.
B.
Mariah
A caseworker interviewed Mariah and
her mother Ashley on October 12, 2011.
Ashley was very concerned about the allegations regarding Aileen and
Mariah. She stated that she had full
custody and Daniel had been out of Mariah’s life prior to April 2011 because he
had been in jail. After he got out of
jail, however, Daniel was successful in procuring unmonitored visitation with
Mariah every other weekend, beginning in April 2011, although sometimes Mariah
would refuse to go with Daniel.
The caseworker assessed that Mariah
was not able to tell the difference between truth and lies and could not
identify her body parts. The caseworker
pointed to her chest and vaginal area and asked if anyone had touched Mariah
there, and Mariah shook her head. The
caseworker asked if Mariah’s mother had ever helped her use the bathroom and
touched her there, and Mariah said, “no.â€
The caseworker determined that Mariah was too young to make a meaningful
statement.
Mariah had a medical examination on October
13, 2011,
which neither confirmed nor negated the possibility of sexual abuse. Mariah told the medical examiner that she
liked living with Ashley, but did not like staying with Daniel, although she
would not explain why. Ashley reported
that Mariah told her that when she stayed at the home of Daniel’s girlfriend
Tina, she slept in a bed with Daniel, Tina, and Danny. She reported that she slept with Daniel when
she stayed at Virginia’s house.
Subsequently, Ashley reported that
Mariah had begun having toilet accidents since the allegations surfaced. Ashley had asked her if anyone touched her
private parts, but Mariah would become embarrassed and not respond.
Ashley had a restraining order in place
against Daniel for domestic violence against her and her son, Ruben, who was
Mariah’s half-brother. When Ruben was
four, and Daniel and Ashley had separated, Daniel came to the house and he and
Ashley got into an argument. Ruben
became scared that Daniel was going to hurt Ashley and he threw his yogurt at
Daniel. Daniel then kicked Ruben in the
stomach, leaving Ruben gasping for breath and unable to breathe.
C.
Daniel disclosed that he had been
molested by a neighbor growing up, and there were seven DCFS referrals alleging
sexual abuse, all of which were found to be inconclusive.
In addition, Daniel had a criminal
history involving sexual and physical abuse of women and teenage girls. He acknowledged that was accused of
inappropriate touching when he was 12 or 13 years old and stated he was
arrested at age 14 for domestic violence and committed to the California Youth
Authority until age 18. In addition to
numerous drug and firearm offenses, his adult criminal history includes (1) when
he was 25 years old, an offense involving a 16-year-old girl for which he
initially was charged with forcible rape, but was convicted of the lesser
offense of sex with a minor; (2) a separate conviction for sex with another
minor girl no more than 15 years old, when Daniel was over 21; (3) assault
of a spouse with bleach, and (4) multiple convictions for domestic
violence involving different women. In
interviews with caseworkers, he claimed that the police as well as the women
lied in all these cases.
A 2004 police report regarding one of
the statutory rape offenses discloses that the 16-year-old victim contacted the
Sheriff’s Department to report a rape.
The victim stated she had been in a dating relationship with Daniel for
approximately one month. They previously
had consensual sex, but on the occasion in question, Daniel started to get
rough with her while they were kissing and pinned her wrists against the
bed. She told him to stop and tried to
punch him and kick him off her, and Daniel punched her on the head, arms and
thighs, overpowered her, and pulled her jeans off and forcibly raped her,
ignoring her pleas that he stop.
Afterwards he threatened to send someone to kill her if she told the
police, and she believed he could carry this threat out because he was a gang
member. The police officer observed
large bruises on her arms, wrists, and thighs.
A rape kit examination was performed and evidence of sexual assault was
found. During the subsequent
investigation, the victim reported that Daniel had begun beating her up for no
apparent reason soon after they began dating, but she did not report the abuse
because she was afraid of him. Daniel
admitted that he knew the victim was under age, but claimed the sex was
consensual and denied hitting her.
III.
Findings
A.
Dependency petitions filed with
respect to Heaven, Mariah, and Danny alleged that jurisdiction was appropriate
under Welfare and Institutions Code section 300, subdivision (a)
that Daniel had punched Aileen in the abdomen with his fists. Jurisdiction was alleged under section 300,
subdivision (b) based on Daniel’s sexual and physical abuse of Aileen. Jurisdiction under section 300, subdivision
(d) was alleged based on Daniel’s sexual abuse of Aileen.
In addition, as to Heaven,
jurisdiction was sought under section 300, subdivisions (b) and (d), based on
Daniel’s criminal history of sex with minors.
Further, jurisdiction was sought under subdivisions (a) and (b), based
on the allegation that Heaven’s mother, Wendy Y., inappropriately disciplined
Heaven by striking her with a belt.
Further, jurisdiction under subdivision (b) was asserted based on the
fact that Heaven suffers from mental and emotional problems, including
depression and deficit hyperactive disorder, that Heaven’s mother failed to
regularly provide her with psychotropic medication, and that Heaven had
exhibited aggressive and assaultive behavior towards a law enforcement officer.
As to Mariah, jurisdiction was
additionally sought under section 300, subdivisions (b) and (d), based on
Daniel’s criminal history, including a conviction for sex with a minor, and
under subdivisions (a) and (b) based on Daniel’s physical abuse of Mariah’s
half-brother Ruben by kicking him in the stomach. Further, jurisdiction was alleged under
subdivision (b) because Daniel allowed his female companion Tina, whom he knew
to be a current user of methamphetamine, to have unlimited access to the
Mariah. Allegations under subdivision
(j) were also included based on Daniel’s sexual and physical abuse of Aileen
and his physical abuse of Mariah’s sibling.
As to Danny, jurisdiction was
additionally alleged under section 300, subdivision (b) based on Tina’s history
of drug abuse and current use of methamphetamine and amphetamine, and because
she previously had two other children permanently removed from her as a result
of her substance abuse.
B.
Beginning on April
4, 2012, the
court held a joint hearing to adjudicate the four cases as to Danny, Mariah,
Heaven, and Aileen and her siblings.
DCFS reports memorializing the DCFS investigation and incorporating the
police reports were admitted into evidence.
Although no objection was made at trial at the time these exhibits were
introduced, Daniel had previously filed objections to the admission of hearsay
in the DCFS reports.
1.
The court questioned Aileen in
chambers to determine whether she was competent to testify at the hearing. After asking her a number of questions, the
court determined she was not competent to testify because she was not able to
understand the consequences of telling lies versus the truth. The jurisdiction hearing was continued so
that Daniel could file a motion to strike Aileen’s out-of-court statements as
hearsay.
Daniel filed a motion to exclude
Aileen’s out-of-court statements to Grandmother on October 7,
2011, and to
Deputy Lopez on October 9, 2011.
The court denied the motion, finding that Aileen’s statements were
admissible under In re Cindy L.
(1997) 17 Cal.4th 15 (Cindy L.) and
as she was unable to understand the duty to tell the truth, the court found
that the time, content, and circumstances of her out-of-court statements bore
sufficient indicia of reliability because (1) Aileen made the majority of
the statements contemporaneously with reporting the physical sensation of pain
in her abdomen and vagina; (2) the statements were made close in time to
the alleged incident; (3) the statements were spontaneous and did not
appear to be the result of suggestive or leading questioning; (4) the
statements were consistent over time; (5) there was no indication of a
motive to lie on the part of Aileen or her relatives; (6) Aileen’s
statements were consistent with the court’s observations of the child; and
(7) Aileen used terminology expected of a child of her age talking about
subjects that were not within the knowledge of a child of that age. The court further found that independent
evidence corroborated the statements, including the bloody discharge from
Aileen’s vagina.
2.
Deputy Lopez testified that she and
her partner, Deputy Ed Hernandez, had responded to Monterey Park hospital on Sunday,
October 9, 2011, and spoke to Grandmother first, while Aileen’s father was with the
child in her hospital room. Grandmother
told her that for two days, Aileen had been complaining of abdominal pain. In addition, two days earlier, when
Grandmother took Aileen to the restroom and wiped her, she saw discharge and
blood. Grandmother said she thought
Aileen might have hit herself, but she stated that she did not know what the
cause of the blood and discharge could be.
Grandmother reported that she had told Mario earlier that day that she
had found some discharge in Aileen’s underwear, and he became concerned and
decided to take Aileen to the hospital.
Deputy Lopez met with Mario next, and
he told her he was concerned about the discharge and the blood and he stated
Aileen had never had this issue before.
He stated that Grandmother had just told him what she had discovered,
and he had not seen the discharge or blood himself.
Next, Deputy Lopez spoke with Aileen
in her hospital room, while Mario and Grandmother were outside the room. Aileen was excited and smiling, and wanted to
play with Deputy Lopez’s equipment and her radio. She freely answered questions about her age
and what she liked to do for fun. Deputy
Lopez asked her if she knew why she was at the hospital, and she said she did
not know. Deputy Lopez then drew a
figurine of a person and told Aileen that it was her, and asked her to show her
on the picture if she was hurt anywhere.
Aileen responded by taking the pencil from Deputy Lopez’s uniform pocket
and scribbling on the hands, breast, and vaginal area of the figure, and as she
scribbled she said that Daniel rubbed her, and she used her hands to show where
she was touched. She first rubbed her chest
area, and then motioned towards her vaginal area and said Daniel grabbed her
there. She said that she played with
another little girl and that Daniel touched both of them in the breast area,
but she would not tell Deputy Lopez the name of the other child or give her any
more information about the child. Aileen
would look down and stop every time she mentioned Daniel. Then she “shut down†and would not answer
questions about where her mother was at the time, who “Daniel†was, or when she
was hurt. Deputy Lopez said Aileen
appeared to be holding something inside that she would not let out.
Deputy Lopez then spoke again with
Grandmother and, without explaining why she was asking, asked her who Daniel
was. Grandmother told her Daniel was Virginia’s live-in boyfriend. She provided a description of Daniel, but she
did not ask why Deputy Lopez needed the information. She stated that she had seen Daniel when she
picked up or dropped off Aileen at Virginia’s home, but she had not talked to
him. She had last seen him two days
earlier when she picked up Aileen at Virginia’s house.
Deputy Lopez then spoke with Mario
again and told him what Aileen had said.
He reacted angrily and started to curse.
He was concerned and wanted to know what he could do to help Aileen.
Deputy Lopez also spoke with the
treating physician, who was concerned Aileen was having discharge and bleeding
from her vagina. He could not see any
indication of foul play, but he recommended a sexual assault kit because he had
concerns that she may have been sexually assaulted.
C.
After the hearing, the court noted
that it considered the case “relatively close,†and that it had been concerned
when Aileen did not qualify as a witness, but that Deputy Lopez’s testimony
giving context to Aileen’s statements led the court to conclude that the
allegations were true by a preponderance of the evidence. The court found compelling Aileen’s
statements as well as the drawing she made over the portions of her body she
believed had been injured. Further, the
court noted the corroborating evidence, specifically the blood and discharge in
Aileen’s underwear. The court noted that
no evidence had been presented that Grandmother and Mario had a motive to
falsely accuse Daniel or that they had coached Aileen to make the
accusations. The court found it telling
that neither Grandmother nor Mario had accused Daniel, and instead had seemed
surprised by Aileen’s spontaneous statements to Deputy Lopez.
As to Heaven, her mother pled no contest
to the allegation under section 300, subdivision (a) regarding physical abuse
by the mother. The court also sustained
dependency jurisdiction under subdivisions (a), (b) and (d) based on Daniel’s
physical and sexual abuse of Aileen, noting that Daniel’s criminal history was
relevant as well.
As to Mariah, the court sustained
jurisdiction under section 300, subdivisions (a) and (b) based on Daniel’s
physical abuse of Aileen and Mariah’s sibling Ruben, and his criminal history,
which the court found showed that Daniel was likely to “cross societal
bounds.†In addition, the court
sustained jurisdiction under subdivision (b) based on Daniel’s allowing Tina, a
current drug user, to have unlimited access to Mariah. The court dismissed the allegation under
subdivision (j).
As to Danny, the court dismissed the
allegation under section 300, subdivision (a) (based on serious physical harm
inflicted on Aileen), but sustained dependency jurisdiction pursuant to
subdivision (b) based on Daniel’s physical and sexual abuse of Aileen as well
as Tina’s drug abuse. Although the court
noted that it was aware of disagreements in the case law with respect to the
probability of sexual abuse of a male child when his parent has sexually abused
a female child, the court sustained jurisdiction under subdivision (d) based on
the sexual abuse of Aileen. The court
found that it was not determinative that Danny was not the same sex as Aileen,
and found it more compelling that, like Aileen, Danny was very young and
pre-pubescent. The court’s decision
predated the recent Supreme Court decision in this area, In re I.J.
(2013) 56 Cal.4th 766, 773.
Father appealed from the
jurisdictional orders. After the notices
of appeal were filed, the court terminated jurisdiction as to Mariah. We granted County Counsel’s motion to augment the record to
include the order terminating jurisdiction and providing for supervised
visitation of Mariah by Daniel. The
order states that visitation must be supervised due to Daniel’s “sex abuse of
[a] very young child.â€
discussion
Daniel
alleges that the dependency court erred in sustaining allegations as to him
under section 300, subdivisions (a), (b), and (d), with respect to Heaven,
Mariah, and Danny. We conclude that
substantial evidence supported the court’s findings.
I.
Daniel’s Appeal Is Not
Moot
A.
As a preliminary matter, County
Counsel argues that Daniel’s appeal challenging the jurisdictional findings
against him is moot as to Danny and Heaven, because as to Danny, dependency
jurisdiction under section 300, subdivision (b) is unchallenged based on his
mother’s history of drug abuse, and, as to Heaven, jurisdiction is unchallenged
under subdivision (a) based on her mother’s physical abuse. Given the circumstances here, we disagree
that Daniel’s appeal is moot.
“‘When a dependency petition alleges
multiple grounds for its assertion that a minor comes within the dependency
court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding
of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial
evidence. In such a case, the reviewing
court need not consider whether any or all of the other alleged statutory
grounds for jurisdiction are supported by the evidence.’ (In re
Alexis E. (2009) 171 Cal.App.4th 438, 451.)†(In re
I.J., supra, 56 Cal.4th at p. 773.)
However, we may exercise our discretion and reach the merits of a
challenge to any jurisdictional finding when the finding could be prejudicial
to the appellant or have other consequences for him outside the dependency
proceedings. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763;
1015.) “Here, the outcome of this appeal
is the difference between father’s being an ‘offending’ parent versus a
‘non-offending’ parent. Such a
distinction may have far-reaching implications with respect to future
dependency proceedings in this case and father’s parental rights. Thus, although dependency jurisdiction over
[Daniel] will remain in place because the findings based on mother’s conduct
are unchallenged, we will review father’s appeal on the merits.†(In re
Drake M., supra, 211 Cal.App.4th at p. 763.)
B.
County Counsel also argues that because
dependency jurisdiction has been terminated over Mariah, the appeal from the
earlier order sustaining jurisdiction in her case is moot. We disagree.
Although, as a general rule, an order
terminating juvenile court jurisdiction renders an appeal from a previous order
in the dependency proceedings moot (In re
Michelle M. (1992) 8 Cal.App.4th 326, 330), dismissal in such circumstances
is not automatic, and instead “must be decided on a case-by-case basis.†(In re
Kristin B. (1986) 187 Cal.App.3d 596, 605.)
In
re Joshua C. (1994) 24 Cal.App.4th 1544 is instructive. In that case, the juvenile court sustained
dependency jurisdiction after finding that the appellant had sexually abused
his daughter and that her sibling was in danger of being sexually abused. At the subsequent dispositional hearing, the
court awarded sole custody of the minors to their mother, restricted the
appellant’s visitation, and terminated dependency jurisdiction. (Id.
at p. 1547.) On appeal, the court
rejected the respondents’ contention that the appellant’s appeal from the
jurisdictional order was moot due to termination of the dependency
proceedings. The court concluded the
jurisdictional findings were reviewable because they were basis for the
continuing custody and visitation orders and the appellant would be
collaterally estopped from relitigating the jurisdictional issues in family
court. (Id. at p. 1548.) “As the
jurisdictional findings are the basis for the restrictive visitation and
custody orders, error in the former undermines the foundation for the
latter. [¶] The fact that the dependency action has been
dismissed should not preclude review of a significant basis for the assertion
of jurisdiction where exercise of that jurisdiction has resulted in orders
which continue to adversely affect appellant.
If the jurisdictional basis for orders restricting appellant’s
visitation with, and custody of, [Daniel] is found by direct appeal to be
faulty, the orders would be invalid.†(
1431 [holding that despite termination of the jurisdiction of the juvenile
court, father could appeal the jurisdictional order resulting from findings
that he abused his daughter in part because these findings had an adverse effect
on his custody rights]; In re Daisy H.
(2011) 192 Cal.App.4th 713, 716 [holding that termination of jurisdiction did
not moot father’s appeal where jurisdictional findings, “if erroneous, could
have severe and unfair consequences to Father in future family law or
dependency proceedings.â€].)
Similarly, in this case, the
jurisdictional findings regarding Daniel’s sexual abuse of Aileen were the
explicit basis for the continuing visitation order restricting his visitation.
That visitation order would be directly affected were Daniel successful
in having the dependency court’s jurisdictional findings reversed in this
appeal. Therefore, the appeal from the
jurisdictional order in Mariah’s case is not moot.
II.
Daniel
Daniel challenges the sufficiency of
the evidence supporting the findings that he physically and sexually abused
Aileen, which findings in turn were used as a basis for exercising jurisdiction
over Heaven, Mariah, and Danny under section 300, subdivisions (a), (b), and
(d). Daniel further contends that there
was no substantial evidence demonstrating that Heaven, Mariah, or Danny were at
serious risk of physical or sexual abuse.
In reviewing a challenge to the
sufficiency of the evidence supporting jurisdictional findings, we determine if
substantial evidence, contradicted or uncontradicted, supports them, drawing
all reasonable inferences from the evidence to support the findings and orders
of the dependency court. We do not
reweigh the evidence or exercise independent judgment, and review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence such that a reasonable trier of fact could
find that the order sustaining jurisdiction is appropriate. (In re
I.J., supra, 56 Cal.4th at p. 773.)
A.
1.
Standard for Admissibility of Aileen’s
Out-Of-Court Statements Regarding Abuse
Daniel contends that the dependency
court violated his right to due process by admitting into evidence social study
reports by DCFS containing Aileen’s hearsay statements to her grandmother and
Deputy Lopez suggesting that she had been physically and sexually abused. Daniel contends that the statements were
inadmissible because they were uncorroborated.
We disagree with Daniel’s contention that Aileen’s hearsay statements
must be corroborated in order to be admissible.
In any event, there was corroborating evidence of abuse.
Section 355 provides that hearsay
evidence contained in a social study report may be admissible and constitute
competent evidence upon which a finding of dependency jurisdiction may be
based. (§ 355, subd. (b).) If, however, a party timely objects to the
admission of specific hearsay evidence contained in such a study, that evidence
“shall not be sufficient by itself to support a jurisdictional finding or any
ultimate fact upon which a jurisdictional finding is based,†unless one of
several exceptions applies. (§ 355,
subd. (c)(1).) The relevant exception
here is for hearsay by a minor under 12 years of age who is the subject of the
jurisdictional hearing. (§ 355,
subd. (c)(1)(B).) Hearsay by such a
minor is admissible in a dependency proceeding unless the objecting party
“establishes that the statement is unreliable because it was the product of
fraud, deceit, or undue influence.â€
(§ 355, subd. (c)(1)(B).)
In Lucero
L., our Supreme Court considered whether section 355 controls when the
hearsay statement comes from a minor who is deemed incompetent to testify
because he or she lacks the capacity to distinguish between truth and
falsehood. In such a case, the court
held that, section 355 notwithstanding, due process concerns require that the
dependency court find that “‘the time, content and circumstances of the
statement provide sufficient indicia of reliability’†in order for the
statement to form the exclusive basis for sustaining jurisdiction over the
minor. (Lucero L., supra, 22
Cal.4th at p. 1248; see id. at pp.
1250–1251 (conc. opn. of Kennard, J.) [out-of-court statements of a child who
is subject to a jurisdictional hearing and disqualified as a witness because of
the lack of capacity to distinguish between truth and falsehood at the time of
testifying may not form the sole basis for a jurisdictional finding unless they
show special indicia of reliability].)
So long as the minor’s hearsay statements are deemed sufficiently
reliable, corroboration is not necessary.
(Lucero L., supra, 22 Cal.4th
at pp. 1248-1249; see In re April C.
(2005) 131 Cal.App.4th 599, 610, fn. 5.)
Although Lucero L. is directly controlling here, Daniel fails to cite it in
his opening brief, and relies on Cindy
L., supra, 17 Cal.4th 15, to argue that hearsay statements of a child not
available for cross-examination must be supported by “significant corroborating
evidence†in order to be admissible.
However, in Lucero L., the
Supreme Court limited its earlier holding in Cindy L., which had held that the out-of-court statements of a
child, including a child’s hearsay statements contained in social workers’
reports, were admissible in dependency jurisdiction proceedings (1) if the
statements show particular indicia of reliability; (2) if, where the child is
not available for cross-examination, the statements are corroborated; and (3)
if interested parties have notice that the statements will be used. (Lucero
L., supra, 22 Cal.4th at p. 1231.)
The Lucero L. court recognized
that the Legislature had amended section 355 in 1997 to codify a somewhat broader
“child dependency†exception to the hearsay rule than that articulated in
Whereas Cindy L. had required
corroboration of a child witness’s hearsay statements where the child was not
available for cross-examination, Lucero
L. held that such corroboration is not required in cases involving a “truth
incompetent†minor who is the subject of a jurisdictional hearing where the
statements are sufficiently reliable. (Lucero
L., supra, 22 Cal.4th at p. 1242, 1246.)
Thus, under Lucero L., Aileen’s hearsay statements are admissible, whether or
not corroborating evidence exists, if they are sufficiently reliable, i.e., the
time, content, and circumstances of the statements provide sufficient indicia
of reliability.
2.
Aileen’s Statements Were Sufficiently
Reliable to be Admissible Without Corroborating Evidence
We review for substantial evidence the
dependency court’s finding that the time, content, and circumstances of
Aileen’s statements provide sufficient indicia of reliability. (In re
Lucero L., supra, 22 Cal.4th at pp. 1248-1249 [reviewing for substantial
evidence the dependency court’s finding that hearsay statements were
reliable].) Factors bearing on the
inherent reliability of a child witness’s statements in sex abuse cases
include, but are not limited to “‘(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. [Citation.]’â€
(Id. at p. 1239.)
According to Grandmother, while she
was putting a diaper on Aileen after picking her up from a stay at Virginia’s
home, Aileen made spontaneous statements about Daniel touching her vaginal
area. These statements were made
contemporaneously with statements that she was hurting and behavior suggesting
that she was in pain. Further, she made
the statements soon after being picked up from Virginia’s home. She then consistently complained of pain for
the next two days.
Similarly, Aileen’s statements to
Deputy Lopez in the hospital about physical and sexual abuse by Daniel were
made spontaneously, in reaction to general questions about whether she was
hurt. Deputy Lopez did not ask Aileen
who had hurt her or ask if her private parts had been touched. Asked if she felt pain anywhere, Aileen
stated, “Daniel punched me,†while making a fist and directing it towards her
stomach. When Deputy Lopez asked who
Daniel was, Aileen looked down and did not want to talk about him. Then, when Deputy Lopez drew the figurine and
asked Aileen to show her where she was hurt, Aileen scribbled on the hands,
chest, and vaginal areas of the rough figurine Deputy Lopez had drawn, grabbed
her chest area and motioning towards her vagina with a grabbing motion, and
stated, “I was holding
hands with my friend and [Daniel] touched us both and grabbed us right here.†The simple,
demonstrative manner in which Aileen conveyed this information was
age-appropriate and supports the reliability of her statements. Moreover, the dependency court concluded that
the reported statements were consistent with the court’s observations of the
child’s capacity.
The record shows that after providing
Deputy Lopez with limited answers to her questions, Aileen “shut down†and
refused to answer the deputy’s further questions, and looked down every time
Daniel’s name was mentioned. In
subsequent questioning by other deputies, caseworkers and investigators, Aileen
consistently was withdrawn, tense, uncooperative, and fearful when asked about
possible abuse. Further, her demeanor and
conduct consistently demonstrated that she was afraid of Daniel. Her general statements that Daniel was
“mean,†her refusal to further elaborate, and her general denial in response to
a deputy’s questions asking whether anyone had ever hit her or touched her
vagina, were all made after she had “shut down,†and they do not diminish the
reliability of her initial, spontaneous statements providing specific
information about abuse by Daniel.
Further, there was no indication that
Aileen was coached into implicating Daniel.
Aileen’s use of hand motions to describe the physical abuse and
molestation are not indicative of coached accusations. (See Lucero
L., supra, 22 Cal.4th at p. 1250 [“Lucero’s language, while not precocious,
was age appropriate and her statements had the mark of being made in her own
words, without evidence of prompting.â€].)
Further, no evidence was introduced of any animus towards Daniel on the
part of Aileen’s paternal relatives. It
does not appear that Mario had ever met or seen Daniel, and Grandmother had
seen him but had never spoken with him.
Neither Grandmother nor Mario mentioned Daniel to Deputy Lopez; instead,
Aileen was the first one to mention him.
Moreover, although Grandmother stated that Aileen had told her that
Daniel had touched her private parts, Grandmother says she told Aileen this was
not true, and she did not tell Mario because she was scared of his
reaction. At the hospital, Mario reacted
with shock and anger upon hearing Deputy Lopez repeat Aileen’s allegations
about Daniel. These facts suggest that
Aileen was not coached to allege physical and sexual abuse by Daniel and that
her statements were true.
In sum, we conclude that Aileen’s
statements to Grandmother and to Deputy Lopez regarding physical and sexual
abuse by Daniel were sufficiently reliable to constitute substantial evidence
of such abuse.
3.
Even if Aileen’s statements, standing
alone, did not bear sufficient indicia of reliability, they were still properly
admitted because there was corroborating evidence of physical and sexual
abuse. (Lucero L., supra, 22 Cal.4th at pp. 1248-1249.)
“‘Corroborating evidence is
“[e]vidence supplementary to that already given and tending to strengthen or
confirm it. Additional evidence of a
different character to the same point.â€
[Citation.] In this context,
corroborating evidence is that which supports a logical and reasonable
inference that the act described in the hearsay statement occurred. [Citation.]’
[Citation.]†(
Cal.App.4th 437, 448.) “[W]ith respect
to dependency jurisdictional findings, corroborative evidence, whether direct
or circumstantial, (1) is sufficient if it tends to connect the allegedly
offending parent with the alleged negligent act even though it is slight and
‘“entitled, when standing by itself, to but little consideration [citations],
nor does it need to establish the precise factsâ€â€™ in the hearsay statements;
(2) is sufficient if it tends to connect the allegedly offending parent with
the alleged negligent act and the parent’s ‘“own statements and admissions,
made in connection with other testimony, may afford corroboratory proof
sufficientâ€â€™ to find jurisdiction; (3) need not ‘“go so far as to establish by
itself, and without the aid of the testimony of [the hearsay declarant], that
the [allegedly offending parent] committed the [negligent act] chargedâ€â€™; (4)
may include the allegedly offending parent’s ‘“own testimony and inferences
therefrom, as well as the inferences from the circumstances surrounding the
entire transactionâ€â€™; and (5) may consist of ‘[f]alse or misleading
statements to authorities . . . or as part of circumstances supportive of
corroboration.’ [Citation.] ‘“‘[W]hether 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.]†[Citation.]’ [Citation.]â€
(Ibid.)
In this case, corroborating evidence
supported Aileen’s statements regarding physical abuse by Daniel. Grandmother had previously observed bruises
on Aileen and her siblings when she returned from a stay at Virginia’s house. In addition, through her non-verbal behavior,
Aileen consistently demonstrated a fear of Daniel. Moreover, Daniel had a restraining order
against him based on the fact that he had kicked Mariah’s then four-year-old
sibling, Ruben, in the stomach. Further,
Daniel had suffered convictions for physical abuse of his romantic partners,
including teenage girls.
Substantial evidence corroborating
Aileen’s statements regarding sexual abuse was also introduced. Grandmother found blood and discharge on
Aileen’s underwear, and on toilet paper after wiping her, on the day she picked
up Aileen from a stay at Virginia’s house, where Daniel
was present. Grandmother also observed
that Aileen did not want to be touched in her private area and appeared to be
in pain when Grandmother was putting a diaper on her. Further, Daniel and Virginia admitted that
Daniel sometimes brought his four-year-old daughter Mariah with him to stay at Virginia’s house while Aileen was
there, corroborating Aileen’s statements that she was holding hands with her
“friend†who stayed at Virginia’s house when the abuse
occurred. In addition, Grandmother and
Mario reported changes in Aileen’s behavior, such as becoming more withdrawn
and antisocial, having nightmares, and exhibiting some sexualized
behaviors. Both Aileen and Mariah
reportedly had more toilet accidents after the allegations surfaced. Finally, Daniel’s past criminal history
involving sexual abuse of teenage girls constitutes additional corroborating
evidence. Substantial evidence thus
supported the dependency court’s findings that Daniel physically and sexually abused
Aileen.
“[S]ection 300 does not require that a
child actually be abused or neglected before the juvenile court can assume
jurisdiction. The subdivisions at issue
here require only a ‘substantial risk’ that the child will be abused or
neglected. . . . ‘The court need not
wait until a child is seriously abused or injured to assume jurisdiction and
take the steps necessary to protect the child.’
[Citation.]†(
773.) Given its findings regarding
physical and sexual abuse of Aileen, the dependency court properly exercised
jurisdiction under section 300, subdivision (a) (substantial risk of serious
non-accidental physical harm) over Heaven and Mariah, and under subdivision (b)
(substantial risk of serious physical harm) and subdivision (d) (substantial risk
of sexual abuse) over Heaven, Mariah, and Danny.
A.
Daniel first argues that it was
inconsistent for the dependency court to dismiss the allegation under section
300, subdivision (a) that Danny was at risk of physical abuse based on Daniel’s
physical abuse of Aileen, but to sustain substantially identically counts under
subdivision (a) with respect to Heaven and Mariah. Daniel notes that the allegation under subdivision
(a) was dismissed with respect to the dependency petition involving Aileen and
her siblings. He asserts that in
dismissing the allegation in Aileen’s case, the court found that Daniel did not
inflict serious physical harm on Aileen, and that this finding was binding with
respect to the other minors. However,
the court made no such finding. Rather,
the court explained that it was dismissing the allegation under subdivision (a)
as to Aileen and her siblings because abuse by a parent is required under that subdivision, and Daniel is not Aileen’s
parent. That rationale does not apply as
to Heaven, Mariah, and Danny. It is
likely that the court mistakenly dismissed the allegation under subdivision (a)
with respect to Danny, but it was not required to repeat the same mistake as to
Mariah and Heaven.
Daniel also challenges the sufficiency
of the evidence supporting jurisdiction under section 300, subdivisions (a)
with respect to Heaven
and Mariah, and under subdivision (b) as to Heaven, Mariah, and Danny, based on
the alleged risk of physical abuse. In
order for the minors to be declared dependent children within subdivision (a),
there must be substantial evidence that they have suffered or there is a
“substantial risk†that they will suffer, “serious physical harm†inflicted
non-accidentally by Daniel. (§ 300,
subd. (a).) Similarly, for purposes of
jurisdiction under subdivision (b), DCFS must establish that the children
suffered, or there is a substantial risk that they will suffer, “serious
physical harm or illness,†as a result of neglectful
conduct by a parent in one of several specified forms. (§ 300, subd. (b); see
In re James R. (2009) 176 Cal.App.4th
129, 135.) Evidence of a single
incident of serious physical harm to a child may be sufficient for the juvenile
court to assume jurisdiction. (See
1439 [jurisdiction appropriate under subdivision (a) where father broke down
door and struck daughter, dislocating her shoulder]; In re Mariah T. (2008) 159 Cal.App.4th 428, 438 [jurisdiction
proper where on one occasion mother used a belt on her three-year-old’s stomach
and arms, leaving “deep, purple bruisesâ€].)
While we are not aware of any case defining the term “serious physical
harm,†in this context the word “serious†is defined as “having . . . dangerous
possible consequences.â€
(Merriam-Webster’s Collegiate Dict. (11th ed. 2006) at p. 1136.)
In this case, there was evidence that
Daniel had hit Aileen and her siblings in the past, causing bruises. In addition, Aileen reported that Daniel had
hit her hands, punched her in the stomach, and hurt her by throwing her hard on
the bed. Moreover, Daniel had a
restraining order against him as a result of kicking Mariah’s four-year-old
sibling, Ruben, in the stomach, hard enough that he could not breathe. In addition, Daniel had a long history of
engaging in serious domestic violence, including with his minor girlfriends,
resulting in two felony convictions.
This unrelenting pattern of physical abuse by Daniel of minors, from
four years old to teenagers, constituted substantial evidence that Heaven,
Mariah, and Danny were at substantial risk of serious physical harm from
Daniel.
B.
Daniel challenges the exercise of
jurisdiction over his three children under section 300, subdivision (d) based
on the court’s finding that they were at “substantial risk†of being sexually
abused by him. (§ 300, subd.
(d).) Daniel contends that even assuming
that he sexually abused Aileen, the dependency court erred in finding that
Heaven, Mariah, and Danny are at substantial risk of sexual abuse. He relies on the fact that his children are
not related to Aileen and none of them live in the same household as him, and
he further argues that his alleged touching of Aileen is not the kind of
sexually aberrant behavior that reasonably would lead to the conclusion that
all his children are at risk.
That Aileen is not related to Heaven,
Mariah and Danny does not undermine the court’s finding, particularly given
that Daniel had assumed the role of a pseudo-stepfather to Aileen as a frequent
houseguest in Virginia’s home who shared a bed
with Aileen and Virginia when he was there.
(Los Angeles County Dept. of
Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962,
970 [rejecting the juvenile court’s distinction between a stepdaughter and a
biological daughter when considering whether sexual abuse of one child in the
household puts at risk other children in the household, and noting that focus
should be on whether adult has assumed a parenting role towards the child];
515, 523 [dismissing argument that jurisdiction could not be asserted where the
sex abuse victims were not siblings of child over whom dependency was sought,
because all three children
| Description | Father, Daniel O. (Daniel), appeals from a dependency court order sustaining dependency jurisdiction over his three minor children: (1) Heaven O., age 14, whose mother is Wendy Y.; (2) Mariah, age four, whose mother is Ashley G.; and (3) Daniel O., III (Danny), six months of age, whose mother is Tina L. Jurisdiction was sought over these children largely based on allegations that Daniel physically and sexually assaulted Aileen C., the four-year-old daughter of one of his female companions, Virginia M. Daniel asserts that the dependency court erred in admitting the out-of-court statements of Aileen C. regarding the abuse, when Aileen was found not competent to testify at trial and thus could not be cross-examined. He further asserts that substantial evidence did not support the findings that he assaulted Aileen, or that his three children were at serious risk of physical or sexual abuse. We affirm the order sustaining jurisdiction. |
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