In re Olivia S.

Filed 3/12/08 In re Olivia S. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In this dependency proceeding, the juvenile court entered jurisdictional and dispositional orders declaring three siblings to be dependent children and removing them from their parents home.[1] The court found that the oldest child, an eight-year-old girl, had been sexually abused, based in part on evidence that she was suffering from chlamydia, a sexually transmitted disease. The parents later petitioned for modification, based on newly discovered evidence of errors at the laboratory that performed their daughters chlamydia test. In this appeal, the parents challenge the juvenile courts refusal to modify its earlier orders, asserting two grounds: that they presented substantial evidence in support of the petition and that they were denied a fair hearing.

For reasons explained below, we reject the parents arguments. We therefore affirm the juvenile courts order.

FACTUAL BACKGROUND and PROCEDURAL HISTORY

This proceeding involves three children, Olivia S., S.W., and Riley W., whose parents are appellants Renee S. (the mother) and Tracy W. (the father). In June 2005, the children were placed in protective custody. At the time, Olivia was eight years old, S. was three, and Riley was one. The incident that precipitated the childrens detention was an investigation of suspected sexual abuse of Olivia, following a referral from her elementary school.

Petitions

In July 2005, petitions were brought on the childrens behalf by the Department of Family and Childrens Services (Department). (See Welf. & Inst. Code, 300.)[2] At the time set for the initial hearing, the court made provisional findings that the children were described by section 300.

The parents requested a prima facie evidentiary hearing on the petition, which the court conducted. By the third court day of the prima facie hearing, laboratory test results were available, which showed that Olivia had tested positive for chlamydia, a sexually transmitted disease. At that point, the mothers counsel submitted at the prima facie level to the allegations in the petition. The fathers counsel did so as well.

Jurisdiction and Disposition

Starting in September 2005, the juvenile court conducted a contested jurisdiction hearing. (See 355.) That hearing took place over the course of more than two months, consuming 19 trial days and involving some 27 witnesses and 85 trial exhibits.

As proof that Olivia had been sexually abused, the Department offered several broad categories of evidence, including evidence related to Olivias chlamydia diagnosis; evidence of the childs behaviors suggesting abuse, such as excessive masturbation at school, statements that she bathed with her father, and drawings of a sexual nature; and evidence of the parents reaction to the Departments investigation.

Concerning Olivias positive test for chlamydia, the Departments witnesses included Dr. John Hamilton, director of the clinical microbiology lab at Valley Medical Center (VMC), the facility that performed the laboratory tests. Having reviewed Olivias slide, Hamilton observed that it was positive for chlamydia. In his opinion, it was impossible to get a false positive with the test used. According to witness Mary Ritter, an expert in diagnosing sexual abuse, there is no explanation for chlamydia in a prepubescent child other than sexual contact. The Department also presented testimony from Janet Kahle, the senior microbiologist at VMC who processed Olivias chlamydia culture. She described the steps used at the lab for processing Olivias culture, including the protocol for labeling the slides. To refute the Departments evidence, the parents called expert medical witnesses who cast doubt on the conclusion that Olivias chlamydia test was positive.

On November 28, 2005, at the conclusion of the jurisdictional trial, the juvenile court sustained jurisdiction over Olivia and her two younger brothers. In doing so, the court explained that it was persuaded by not one piece of evidence but the total package including Olivias history of repetitive masturbation beginning in kindergarten, including in public settings; the positive chlamydia test; Olivias drawings that are phallic in nature. The court also cited other evidence, including Olivias use of the term sex bean or sex beam; the parents reaction to the call from CPS, to hire an attorney who defends sex abuse cases; and the fathers actions in keeping Olivia out of school to avoid being taken into custody by CPS. The court stated that the parents position at trial was based on an unpersuasive conspiracy or snowball theory, which relied on three prongs: the parents claim of retaliation by the school; their assertion of confirmatory bias on the part of the Department; and their attack on the lab results. As to the last prong, the court observed: This attack ranged from accusation of incompetence by VMC to purportedly scientific claims that, in effect, Olivia could not have had a sexually transmitted disease because there was no evidence of penetration or other physical trauma. The court rejected that attack, finding the Departments scientific evidence more credible than the parents.

The court concluded that the children were at substantial risk of sexual abuse and that the parents had failed to protect them. The court set a date for the disposition hearing. The children remained in out-of-home placement.

In January 2006, the juvenile court began the contested disposition hearing. (See  358.) At the conclusion of the hearing, the court ordered the children removed from the parents physical custody, and continued their out-of-home placement with the Department.

Modification Petition

In July 2006, the mother filed a petition for modification under section 388. The petition was based on the recent discovery of laboratory errors at VMC. In the petition, the mother asserted that the childrens best interest would be served by a return to their parents care. By way of remedy, the mother asked the court to reverse its jurisdictional findings, dismiss the case, and return the children; alternatively, she requested a new trial.

In August 2006, the juvenile court conducted a hearing on the mothers petition.[3] The court first considered the threshold question of whether to grant a full hearing. (See In re Marilyn H. (1993) 5 Cal.4th 295, 310 [under 388, the petitioner must make a prima facie showing to trigger the right to proceed by way of a full hearing].) After entertaining argument on that point from counsel for all parties, the court agreed to conduct a hearing, stressing that it would be limited to the new evidence concerning laboratory errors.

The sole witness at the hearing was Dr. Hamilton, who had testified at the contested jurisdictional trial.

According to Hamiltons testimony, he discovered a laboratory error in January 2006 in connection with a gonorrhea/chlamydia amplification test performed on a urine specimen from a three-year-old girl, who was unrelated to this case. The three year old had tested positive for chlamydia. The result caught Hamiltons attention, because that type of test is not normally used to diagnose chlamydia in prepubescent children.[4] In reviewing the documentation concerning that January 2006 test, Hamilton discovered that an error had been made in transcribing the information.

Hamilton testified that discovery of that transcription error in January 2006 prompted his decision to perform an audit of all chlamydia amplification tests going back approximately six months. He directed his staff to gather the documentation for all such tests performed between June 2005 and mid-January 2006 and to examine it for the same type of transcription error.[5]

Hamilton testified that the audit revealed three sets of errors. In addition to the error in the January 2006 test that originally caught his attention, the audit disclosed additional transcription errors made on two dates in 2005: June 24th and November 16th. Both errors were made by Janet Kahle, the microbiologist who had processed Olivias chlamydia culture at VMC. The June 2005 error involved two samples, numbered 81 and 83. According to the instrument printout, sample 81 was negative for chlamydia and for gonorrhea, while sample 83 was positive for both. But when Kahle transcribed those results onto the worksheet, she erroneously entered sample 81 as positive and sample 83 as negative for both diseases. The November 2005 error involved a single specimen, number 89. There, the instrument printout showed the results for sample 89 as negative for chlamydia and positive for gonorrhea; on the worksheet, Kahle instead wrote positive for chlamydia and negative for gonorrhea.

In his testimony, Hamilton stressed that the errors disclosed by the audit concerned the transcription of results from gonorrhea/chlamydia amplification tests, which was not the type of test done on Olivias culture. When asked whether he had any doubts about the validity of Olivias test, Hamilton responded: None whatsoever. Hamilton explained that he had re-examined the slide and worksheet used in Olivias shell vial culture test, but that he had found no evidence and no hint of any errors concerning that test.

In addition to Hamiltons testimony, the parties proffered documentary evidence. The court then entertained argument and took the matter under submission.

In a formal order entered the next day, the juvenile court rendered its decision denying the relief requested. As reflected in the order, the court determined that the parents failed to carry their burden of proof under section 388, that the new evidence presented does not warrant reversal or modification and that the best interest of the Minors would not be promoted by reversal or modification of the jurisdictional order.

Appeal

The parents brought this appeal challenging the juvenile courts denial of the section 388 petition for modification. They attack the order on two grounds. First, they assert, the juvenile court erred in rejecting their evidence of changed circumstances. Second, the parents contend, they were denied a fair hearing on the question of the childrens best interest, because the court limited the hearing to evidence concerning the laboratory errors.

The Department disputes both arguments. The children likewise defend the order. In addition, as to the second issue raised by the parents, the children also assert forfeiture.

DISCUSSION

To establish the proper framework for our consideration of the issues raised here, we first summarize the legal principles that govern our analysis, including the applicable standard of appellate review.

I. Statutory Background

A. In General

The Legislature has provided for juvenile court jurisdiction over dependent children. (See 300 et seq.) The primary goal of the dependency statutes is to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible. (In re David M. (2005) 134 Cal.App.4th 822, 824; see 300.2; In re Marilyn H., supra, 5 Cal.4th at p. 307.)

B. Section 388

Interested persons may petition the juvenile court for modification of its prior orders, as authorized by section 388. Any parent or other person having an interest in a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. ( 388, subd. (a).)

Essentially, the statute requires a showing of a change of circumstances and that modification based on that change would be in the best interests of the minor children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526, fn. omitted; see 388, subds. (a), (c).) The party seeking modification has the burden of proving both prongs: (1) that new evidence or a change in circumstances warrants modification, and (2) that the requested modification is in the best interests of the child. ( 388, subd. (c); California Rules of Court, rule 5.570(h)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re M. V. (2006) 146 Cal.App.4th 1048, 1060.) Generally speaking, the standard of proof is by a preponderance of the evidence. (California Rules of Court, rule 5.570(h)(1); In re Stephanie M., at p. 317.)

II. Standard of Review

The grant or denial of a petition brought under section 388 is committed to the sound discretion of the juvenile court. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) Its ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (Ibid.) That same review standard also applies when the appeal challenges the constitutionality of the hearing procedure. (See In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405 [holding that the juvenile court deprived mother of her right to due process by not allowing cross-examination, which constituted an abuse of discretion].) And when a denial of due process is shown, the reviewing court determines whether it is harmless beyond a reasonable doubt. (Id. at p. 1406, fn. 12; In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1132.)

To the extent that the issue on appeal is the sufficiency of the evidence to support the juvenile courts ruling, we review the record to determine whether there is any substantial evidence, contradicted or not, which supports the courts conclusions. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) When the facts in evidence give rise to more than one reasonable inference, we will not substitute our determination for that of the juvenile court. (In re Stephanie M., supra, 7 Cal.4th at p. 319.) In other words, evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

III. Analysis

With the foregoing principles in mind, we analyze the juvenile court proceedings challenged here.

A. The Parents Evidentiary Claims

The parents frame their first appellate argument as if it were being addressed to the juvenile court. (See Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1387-1388 [parties to an appeal should consider the altered focus of appellate review].) Citing the new evidence that VMC employee Kahle made transcription errors, the parents argue that she was grossly negligent. Certainly, more likely than not, they assert, the fact of Kahles errors throws into question the entire validity of the Chlamydia finding of Olivia S. Those arguments completely ignore the evidence to the contrary that was adduced at the hearing, and they provide no basis for overturning the juvenile courts exercise of discretion.

As explained above, our task is to determine whether there is any substantial evidence, contradicted or not, which supports the courts conclusions. (In re Kristin H., supra, 46 Cal.App.4th at p. 1649.) Here, as the record amply demonstrates, the juvenile court properly evaluated the evidence, and determined that the parents had not carried their burden of proof. (In re Stephanie M., supra, 7 Cal.4th at p. 319.)

In this case, the undisputed evidence does show that transcription errors were made in recording the results of several chlamydia tests; significantly, however, it also establishes that Olivia was tested for the disease using an entirely different type of process than those called into question. For that reason, the juvenile court was not required to infer from the conceded errors that mistakes were made in reporting Olivias results. Furthermore, the court had affirmative evidence bolstering the reliability of Olivias diagnosis, in the form of Hamiltons testimony that he harbored no doubts at all about the validity of Olivias results.

Furthermore, as the juvenile court observed at the outset of the section 388 hearing, while Olivias chlamydia diagnosis was certainly significant in making the jurisdictional determination, the court had relied on some 15 or 20 factors or pieces of evidence in sustaining the dependency petitions. Thus, even assuming that the new evidence had undermined the validity of Olivias diagnosis, the court nevertheless would have been within its discretion in denying the modification petition.

B. The Parents Procedural Claims

The parents next take issue with the juvenile courts decision to limit the presentation of evidence at the section 388 hearing to the new evidence concerning laboratory errors. On appeal, they complain that the court curtailed the presentation of evidence concerning the childrens best interest. In response, the childrens appellate counsel raises the issue of forfeiture, observing that the parents did not object to the limitations at the hearing. We address that issue first.

As a general rule, a claim is forfeited on appeal if it is not raised in the trial court. As the California Supreme Court has often reaffirmed, a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Dependency matters are not exempt from this rule. (Ibid.) The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. (Ibid.)

But by the same token, application of the forfeiture rule is not automatic. (In re S.B., supra, 32 Cal.4th at p. 1293.) The reviewing court has discretion to consider forfeited claims though the discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. (Ibid.; see id. at pp. 1293-1294 [excusing forfeiture in order to reach an important issue of law: whether a juvenile court in a dependency case may delegate to the childs legal guardian the authority to decide whether a parent may visit the child; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [discussing parents contentions in order to foreclose any other auxiliary claims]; In re Crystal J. (1993) 12 Cal.App.4th 407, 411 [discussing a forfeited claim where the mother asserted a procedural due process violation].)

In this case, there is good reason to treat the claim as forfeited. Before taking evidence, the juvenile court repeated several times that the hearing would be limited to new evidence of laboratory evidence, the first prong of the statute. No objection was interposed by counsel for either parent. Following the presentation of evidence, and before making oral arguments, the mothers counsel clarified with the court that the hearing was limited to the new evidence prong, but she registered no objection even then.

Even reaching the merits, the claim fails for several reasons.

For one thing, the parents proffered information about the childrens best interests was before the court, attached to the mothers petition. And to the extent that it bore on the question of best interests, the court also was advised by the childrens counsel of their desire to be with their parents. (See 317; In re Alexis W. (1999) 71 Cal.App.4th 28, 37 [court was not in the dark about the closeness of the minors relationship with their mother and their strong desire to live with her].) The court was not required to permit live testimony on the question of best interests. Under the governing court rule, proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court. (California Rules of Court, rule 5.570(h)(2).) The rule has two explicit exceptions: where the requested modification is for removal from the home of the parent or guardian or to a more restrictive level of placement and where a due process right to confront and cross-examine witnesses applies. (Ibid.) Concerning the second exception, the due process right comes into play where there is a contested hearing with an issue of credibility. (In re Clifton V., supra, 93 Cal.App.4th at p. 1405; see In re C.J.W., supra, 157 Cal.App.4th at p. 1081 [courts refusal to allow parents to present evidence or cross-examine social workers at section 388 hearing was neither an abuse of discretion nor a denial of due process]; cf. In re Vanessa M., supra, 138 Cal.App.4th at p. 1132 [courts refusal to allow father to testify at jurisdictional hearing was a denial of due process].) Here, the parents do not suggest that their proffered documentary evidence on this point raised credibility issues.

For another thing, since the parents did not carry their burden of proving that the new evidence warranted modification of the jurisdictional and dispositional orders, the court had no need to revisit its prior finding that the childrens best interests were served by maintaining dependency jurisdiction over them with placement outside the parents home.

Finally, this record provides no evidence of prejudice. In this case, a review hearing was scheduled, presenting another forum at which the parents proffered evidence could again be presented. While the modification hearing process is critical to the constitutionality of the dependency statute as a whole, it nevertheless constitutes just one part of a dynamic whole. (In re Marilyn H., supra, 5 Cal.4th at p. 309; In re Kimberly F., supra, 56 Cal.App.4th at p. 528.) Review hearings are another important part of the comprehensive statutory scheme. (In re David B. (2006) 140 Cal.App.4th 772, 778-779.) While different hearings within the dependency process have different standards and purposes, they are part of an overall process and ongoing case. (In re Marilyn H., at p. 307.) Here, because it was contemplated that the best interests prong would be explored at the review hearing, the parents were not harmed by the exclusion of live testimony on that issue at the modification hearing.

DISPOSITION

The order is affirmed.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

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[1] The jurisdictional and dispositional orders are the subject of another appeal now pending in this court (H029972). The parents brought a third appeal in this court (H030869), which they later voluntarily dismissed. At the respondents request, we have taken judicial notice of the records in both of those appeals.

[2] Further unspecified statutory references are to the Welfare and Institutions Code.

[3] The father requested a hearing on his motion for modification, which drew the Departments objection on timeliness grounds. The court agreed to proceed with the understanding that the fathers additions relating to a change of circumstances would not be part of the proceedings.

[4] For prepubescent children, testing for chlamydia typically is done using the shell vial culture process. In that process, a culture obtained by swab is placed on a slide and examined under a fluorescing microscope for the presence of characteristic inclusions that indicate chlamydia. The results are handwritten, either directly on the slide or on a worksheet. By contrast, the gonorrhea/chlamydia (GC/CT) amplification test uses very different procedures. In amplification tests, the specimens (either urine or cultures) are placed in test tubes, which are analyzed by machine in large batches. The machine provides a printout, which is then further transcribed onto a worksheet.

[5] The focus of the audit was errors in transcribing information from the instrument printout (generated by the apparatus that runs the tests) to the computer worksheet (which contains the identifying information for the samples being tested).