In re O.W.
Filed 3/2/12 In re O.W. CA2/4
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re O.W., a
Person Coming Under the Juvenile Court Law.
B234560
(Los Angeles County
Super. Ct. No. CK86777)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.W.,
Defendant and Appellant.
APPEAL
from orders of the Superior Court of
County, Stanley Genser, Commissioner. Affirmed.
William
Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea
Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and
William D. Thetford, Principal Deputy County Counsel, for Plaintiff and
Respondent.
T.W.,
the presumed father (Father) of dependent child O.W., appealed the jurisdictional
and dispositional orders of the juvenile
court. He contends that one of the
jurisdictional findings was erroneously sustained based solely on
uncorroborated hearsay evidence. We
conclude the contention lacks merit and we affirm.
At
the June 27, 2011 jurisdictional and
dispositional hearing, the juvenile court sustained four counts of a dependency
petition, only one of which is at issue on appeal. Significantly, Father does not challenge the
following jurisdictional findings:
physically abused while in Father’s custody.
(Welf. & Inst. Code, § 300, subd. (a).)
Father was the aggressor. (§ 300, subd.
(b).)
Beginning in August 2010, Father concealed O.W. from Mother for five
months. (§ 300, subd. (b).)
This
appeal concerns only count b-2 of the petition, which alleged in relevant part
that during the five-month period when O.W. was concealed by Father from Mother
as alleged in count b-5, Father had caused “the child to reside in abandoned
buildings and in roach infested homes” and had failed to change the child’s diapers
“for three days.” For purposes of this
appeal, it will be assumed that the count b-2 allegations were based on
information provided by Father’s girlfriend Bianca J., who returned the child
to Mother after showing her where Father had been keeping the child.
Prior
to the jurisdictional and dispositional hearing, Father timely objected under
section 355 to “any and all statements attributed to Bianca J.” that were
contained in the detention and jurisdiction/disposition reports of the Los
Angeles County Department of Children and Family Services (Department), as well
as the investigative reports of the Los Angeles Police Department
(collectively, the reports). Father
sought either to cross-examine Bianca or have her statements stricken from the
reports.
When
Bianca did not appear at the June 27 hearing, the Department informed the
juvenile court that it had attempted to subpoena Bianca, who had moved to Florida. In light of Bianca’s unavailability for
cross-examination, the court stated that it would consider her statements but
would not sustain any of the counts based solely on them.
Neither
parent presented evidence at the June 27 hearing. After considering the Department’s reports,
which included Bianca’s hearsay statements, the juvenile court stated, “I don’t
have any trouble finding support for . . . (b)(2) independent of the lay witness
[Bianca].” The court pointed out that
Mother, who had gone with Bianca to the location where Father had been keeping
the child, had corroborated Bianca’s account of the child’s unsafe and filthy
living conditions. The court
explained: “Most of the specific
descriptive language is from the lay witness but that corroborates Mother’s
testimony; therefore, since I’m not relying on the lay witness exclusively, I
find (b)(2) true also.”
Father
contends on appeal that count b-2, which alleged that he had endangered O.W. by
keeping him in abandoned buildings and roach-infested homes, and by not
changing his diaper for three days, was improperly sustained based solely on
Bianca’s uncorroborated hearsay statements.
We are not persuaded.
Under
section 355, hearsay evidence contained in the Department’s reports is
admissible and may be relied upon to support a jurisdictional finding to the
extent allowed by statute. Subdivision
(c)(1) of section 355 provides in part:
“If any party to the jurisdictional hearing raises a timely objection to
the admission of specific hearsay evidence contained in a social study, the
specific hearsay evidence shall not be sufficient by itself to support a
jurisdictional finding or any ultimate fact upon which a jurisdictional finding
is based, unless the petitioner establishes one or more of the following
exceptions: [¶] (A) The hearsay evidence would be admissible
in any civil or criminal proceeding under any statutory or decisional exception
to the prohibition against hearsay.”
Section
355 does not preclude the admission of all hearsay evidence at a jurisdictional
hearing. It instead provides that “if a
timely objection is made and no hearsay exception applies, the evidence must be
corroborated. (
(2007) 156 Cal.App.4th 975, 983-984 (B.D.).)” (In re
R.R. (2010) 187 Cal.App.4th 1264, 1280 (R.R.).) The question we face
is whether Bianca’s statements were sufficiently corroborated to support the
jurisdictional finding at issue.
“
evidence is evidence which supports a logical and reasonable inference that the
act described in the hearsay statement occurred. (B.D., supra, 156 Cal.App.4th at p.
984.) The quantum of corroboration
necessary to
finding is ‘somewhat analogous
law
requiring independent
accomplice testimony,’ that is, direct
or circumstantial evidence, even if slight, is sufficient if it tends to
connect the accused with the act. (Ibid.)” (R.R.,
supra, 187 Cal.App.4th at pp.
1280-1281.)
Courts have held that the
corroborating evidence under section 355 need not precisely mirror the disputed
statement. In B.D., for example, “
witnesses included in the detention and jurisdictional reports, each of whom
said they saw mother hit the child. The
juvenile court sustained the objection and dismissed the petition, finding no
independent evidence upon which it could rely to support the petition. The appellate court reversed, finding the
mother’s statements regarding the incident, including several inconsistent
statements, as well as the child’s changed attitude toward the mother after the
incident, provided sufficient evidence from which it could reasonably be
inferred that the act of which the mother was accused occurred.
156 Cal.App.4th. at pp. 985-986.)” (
although hearsay, were admissible under section 355 to prove his recent drug
use because the records were corroborated by the mother’s observations. (Id. at
p. 1281 [“Here, mother’s
statement to the social worker that father had used methamphetamine with mother
shortly before she entered a drug program, and that he had become ill and had
been taken to the hospital, was sufficient corroboration. Father does not argue the corroboration was
insufficient as a matter of law, only that mother was not credible. That, of course, was for the juvenile court
to decide.”].)
Father contends that “there is no
evidence corroborating Bianca’s statements about [O.W.] residing in abandoned
buildings, living in roach-infested homes, or having an unchanged diaper for
three days. None of [Mother’s]
statements indicated that any of these facts were true and there were no
statements by any other witnesses in the social worker’s reports.”
The test, however, is not whether
Mother’s statements precisely matched Bianca’s statements. Rather, “[t]he quantum of corroboration
necessary to support a jurisdictional finding is ‘somewhat analogous to the
rule in criminal law requiring independent corroborative proof of accomplice
testimony,’ that is, direct or circumstantial evidence, even if slight, is
sufficient if it tends to connect the accused with the act. [Citation.]”
(R.R., supra, 187 Cal.App.4th at pp. 1280-1281.)
The Department recites the following
evidence of corroboration from which the truth of Bianca’s statements may
reasonably be inferred (internal record references are omitted): “When Bianca took mother to father’s home, mother
observed it to be filthy, with no bathroom.
Mother stated that as long as she had known father, he never held a
job. Father told his previous fiancée
and Bi[anc]a he was out of work, struggling to care for [O.W.] and had no place
to live. Mother observed [O.W.] to be
filthy and underfed. When Bianca brought
the child to mother, mother found him in a diaper soiled with feces. Mother told Ms. Markovitch [the Department’s
social worker] that [O.W.] complained that his buttocks hurt. And, she reported that when [O.W.] initially
returned home he had night terrors.
Also, Detective White told the [dependency investigator] that three
women reported to him that father neglected [O.W.] [¶]
Furthermore, other statements were corroborated, which would be an
indication that the statements in question were also true. For example, Bianca’s and Carolyn’s [the
former fiancée] statements regarding their contact with father and [O.W.] were
almost identical.”
We conclude that the above evidence,
which Father does not dispute, constitutes sufficient corroboration of Bianca’s
statements to support a jurisdictional finding.
The jurisdictional and dispositional
orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
MANELLA, J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Mother,
who was given supervised custody of the child, is not a party to this appeal.
