In re J.T.

Filed 12/4/08 In re J.T. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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D.S., the mother of J.T. and M.S. (mother), and J.T. the father of J.T. (father), appeal from juvenile court orders adjudging the minors dependent children and removing the minors from parental custody. (Welf. & Inst. Code, 360, subd. (d)), 395.)^[1] Mother and father make several contentions of alleged prejudicial error. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On April 20, 2007, Department of Health and Human Services (DHHS) filed original juvenile dependency petitions pursuant to section 300 on behalf of two-month-old J.T. and three-year-old M.S. Those petitions alleged father sexually abused M.S., placing J.T. at a substantial risk of being sexually abused. The petitions also alleged mother failed to provide adequate care for M.S., in that father had sexually abused M.S., and that such abuse would not have occurred except as the result of the unreasonable or neglectful acts or omissions of mother.

The report prepared for the combined jurisdiction and disposition hearing was before the juvenile court. That report consisted primarily of summaries of statements by witnesses and various attached documents. According to the report, sheriffs deputies responded to a telephone call from M.S.s maternal aunt, who reported that M.S. had complained of burning in her vaginal area and of father touching her. Deputy Lopez spoke with M.S., who identified father as her own father.^[2] M.S. told Deputy Lopez in part: My mommy takes good care of me but my daddy is bad. My daddy is bad because he touches my private and it hurts. He touches my private with his hand and a pencil. He says do you like it, do you like it? I tell him no, it hurts but he doesnt stop. He sexes me. He touches my private when my mommy is feeding the baby. I dont touch my daddys

private. [] . . . Daddy sexes mommy in the mirror. Daddy touches mommys private. Daddy touches my private the same way he touches mommys private. I dont like when daddy sexes mommy. When daddy is naked he touches his private and says, Do you like it, do you like it? Daddy bounces on my mommy. He bounces on me too.

Lopez opined that M.S. was articulate for her age. According to Lopez, when the deputy asked M.S. about father, M.S. appeared stressed. On the other hand, when the deputy asked M.S. questions about the latters siblings, she appeared comfortable and calm. Lopez ended the report as follows: I asked [M.S.] open ended questions and I never directed her answer by offering her an explanation or by altering her response. The words in her responses where [sic] all of her own. I did not place pressure on her to talk with me however I asked her questions [sic] about the people in her life. When [M.S.] had trouble explaining something or if I was unclear about her response, rather that [sic] offer her an alternative explanation I asked her to show me what she was trying to explain.

Deputy S. Lofton spoke with M.S.s maternal aunt, who stated M.S. had complained of pain in her private area when the aunt bathed her. According to the aunt, two other individuals, including M.S.s maternal grandmother, also had told the aunt that M.S. complained of pain when M.S. urinated. The aunt also told Deputy Lofton that she and another individual had spoken with M.S., and that M.S. had said father had touched her, and that it hurt when he touched M.S. When asked if father put anything inside her, M.S. allegedly said a pencil and fathers finger.

During two subsequent interviews, one conducted by a medical examiner and the other by a social worker, the minor did not identify father as the person who touched her. Medical examination of M.S. revealed some external redness of her labia majora. However, the examiner also reported the findings were normal and sexual abuse could be neither confirmed nor negated.

On May 1, 2007, mother told DHHS that M.S. had a rash in her vaginal area, one that had appeared first about four months earlier. M.S. allegedly had told mother she got the rash from a toilet seat that had pinched her. Mother denied that father had sexually abused M.S. According to mother, M.S. was in the care of relatives for about one week, and mother believed it was possible the maternal aunt led M.S. to make statements. Mother also told DHHS that M.S. played with another child, from whom M.S. learn[ed] sexual acts and language. Finally, mother reported she had seen M.S. humping a dog, and that M.S. found adult videotapes belonging to mother and father. Father also denied the allegations of sexual abuse.

In its report, DHHS noted with concern that mother believed M.S.s abuse allegations were influenced by the maternal aunt, whom mother believed disliked father. DHHS also was concerned mother had not accepted M.S.s allegations and that mothers relationship with father was continuing. DHHS reported mother and father had missed or been late to scheduled appointments and failed to submit to drug testing, as directed. DHHS opined that neither mother nor father understood the severity of the allegations . . . . DHHS recommended removal of the minors from parental custody.

At the September 21, 2007, jurisdiction and disposition hearing, the juvenile court admitted into evidence the jurisdiction and disposition report, ruling the statements made by M.S. were not the result of fraud, deceit or undue influence, and that, under the totality of the circumstances, they were reliable.

Mother and father moved for dismissal of the petitions on the ground the evidence was insufficient for the juvenile court to assume jurisdiction. In support of that motion, counsel cited the allegedly conflicting statements by M.S. contained in several of the reports, and the lack of physical evidence of molestation. The juvenile court denied the motion, ruling M.S.s hearsay statements contained in the social workers report provided sufficient evidence in support of the petitions.

After fathers counsel called M.S. as a witness, the juvenile court ruled M.S. was not available for cross-examination due to a lack of competency as a witness. Thereafter, at the continued hearing, father testified that, although he was not the biological father of M.S., she considered him to be her father. Father denied ever touching M.S. inappropriately. Other than turning on the water, father denied helping with or giving M.S. a bath. However, father acknowledged assisting the minor with the toilet.

At the conclusion of the October 1, 2007, combined hearing, the juvenile court ruled that the totality of the circumstances before the court does show that there are significant and sufficient indicia of reliability for the Court to consider the hearsay statements of the [minor] as substantial evidence to support the petition[s]. The court found the testimony of father not credible. The court also ruled there was sufficient evidence to support the allegation that mother had failed to protect the [minor], . . .

In support of its ruling, the juvenile court stated in part as follows: The Court, though, finds in this case there are a number of indicia of reliability. Without any argument the precociousness of statements by [M.S.] to the law enforcement officer and her level of sexual knowledge or her knowledge of sexual maters goes well beyond that of a three or four year old child. The statements due [sic] contain age-appropriate language. Her statements do, in fact, contain physical gestures and acting out of what she had difficulty finding words to describe. There was no indication that she had any motive to lie or any ill will towards her father. And there was also a clear level of spontaneity in the statements.

The juvenile court also stated: So when the Court references the totality of the evidence in this case we have the statement to the aunt, the statement to law enforcement, and those statements were not identical. We have the precociousness of the childs statement regarding her knowledge of sexual matter. We have language very consistent with a child of her age. She references seeing daddys private, and it sticks out and out and out. [] We have the physical gestures that are referenced by Detective Lopez. We have the childs detail in the statement that was provided to Detective Lopez. The statement that provides the -- the -- the tie-in, if you will, that this is sexual abuse, and that being the statements by [father], Do you like it? Do you like it? This is not a child thats simply describing [father] touching her in her vaginal area. That in and of itself would not necessarily equate molest. Its that -- that extra statement by the child that the perpetrator is gaining some sort of sexual satisfaction from the act.

The juvenile court sustained the petitions as amended, adjudged the minors dependent children, and ordered them removed from parental custody.

DISCUSSION

I

Mother and father contend that, as the hearsay statements of M.S. did not show the requisite special indicia of reliability, the juvenile court committed prejudicial error in relying on those statements to sustain its findings of jurisdiction. According to mother and father, M.S.s statements were inconsistent, the terms she used did not demonstrate reliability, and M.S. was influenced by the initial questioning to provide certain answers. Mother and father also claim a lack of information about the circumstances surrounding the interviews with M.S. suggests insufficient reliability. Section 355 provides in part: (b) A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d). [] . . . (c)(1) 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. [] (B) The hearsay declarant is a minor under the age of 12 years who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under the age of 12 years shall not be admissible if the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence.

In In re Cindy L. (1997) 17 Cal.4th 15, 28-30, our Supreme Court established the child dependency hearsay exception for a minors hearsay statements in dependency hearings. Pursuant to this exception, such statements in cases where sexual abuse is alleged are admissible if sufficient indicia of reliability is shown, the minor is available for cross-examination or evidence is adduced of corroborating evidence, and notice is provided that the minors hearsay statements will be used. (Id. at p. 30.)

After section 355 was amended to authorize admission into evidence of the minor victims hearsay statements as contained in the social workers report, our Supreme Court again considered the child dependency hearsay exception. In In re Lucero L. (2000) 22 Cal.4th 1227, 1231, a plurality of the court held the hearsay statements contained in the social workers report of a minor who is found incompetent as a witness may be admitted into evidence pursuant to section 355. However, those statements may be relied on solely as the basis for a jurisdictional finding only if the juvenile court finds they show special indicia of reliability. (Id. at p. 1231.) In determining whether such reliability is shown, the court must examine such factors as the time, content and circumstances surrounding the statements. (Id. at p. 1248.) Those factors may include the spontaneity of the statements, the minors knowledge of sexual matters, whether a motive to lie is present, and any other factor relevant to reliability. (Id. at pp. 1246, 1250.)

In this case, the juvenile court relied primarily on the content of the statements made by M.S., including her demonstrated knowledge of sexual matters, her body language used during the interview with law enforcement, the level of spontaneity in the statements, the fact the statements were not identical in the various interviews, the level of detail in the statements, and the lack of evidence of coaching or motive to lie.

Mother and father argue M.S.s statements were not consistent because she did not disclose that father touched her inappropriately during the interviews with the medical examiner and social worker. On the other hand, as DHHS notes in its brief, M.S. made consistent statements to several people about inappropriate touching by father, followed by a detailed series of statements made to Deputy Lopez. Moreover, an examination of the interviews to the medical examiner and the social worker reveals arguably some ambiguities, rather than inconsistencies. First, the interview with the medical examiner was a brief one, with only a half-dozen questions asked; M.S. was not asked if father had touched her. Moreover, during the interview with the social worker, at one point M.S. declared without being asked a question that father had not touched her. M.S. also stated first, in response to the question whom M.S. would tell if someone touched her, her father, but then said [n]o, she did not want to get into trouble.

The statements made by M.S. to Deputy Lopez showed M.S. distinguished between sexual conduct between mother and father and sexual acts by father perpetrated on M.S. For example, M.S. referred to mother and fathers activity as Daddy sexes mommy . . . . On the other hand, she told Deputy Lopez that father touched her private and it hurts and that [h]e sexes me. M.S. also reported in separate statements that father bounces on mother and also on M.S. Finally, M.S. twice disclosed to Deputy Lopez that fathers acts caused her pain.

Deputy Lopez described the interview room she used as very comfortable, with toys and no outside distractions. M.S. appeared to be very comfortable with her, and the two apparently established a good rapport. On the other hand, the other two interview situations involved a medical examination, and, according to DHHS, another setting in which M.S. appeared to be uncomfortable and distracted.

Deputy Lopez noted M.S. appeared stressed by questions about father, and would tend to look down and become fidgety. At such times, M.S. seemed sad. . . . However, when Deputy Lopez asked M.S. about other family members, M.S. appeared comfortable and calm. According to Lopez, M.S.s eyes seemed to light up when the conversation was about anything other than [father].

After evaluating the circumstances surrounding M.S.s statements as well as the content of the statements themselves, the juvenile court concluded it did not appear M.S. had been coached to make her statements. The court then found that sufficient indicia of reliability existed to justify its reliance on the statements made by M.S. as substantial evidence in support of the dependency petitions.

We agree. In In re Lucero L., supra, 22 Cal.4th at page 1250, the plurality opinion noted the minors statements were not identical in every detail[.] However, they contained substantial details and showed no evidence of prompting. (Ibid.) Accordingly, a plurality of the court found sufficient reliability existed on which to find substantial evidence for jurisdiction. Similarly, here we conclude that, with the reliability of the statements made by M.S. demonstrated sufficiently, the juvenile courts decision to admit the statements into evidence was supported by substantial evidence. There was no violation of due process or other error.

II

Mother claims the evidence is insufficient to support the jurisdictional findings by the juvenile court that mother knew or should have known the minors were at a substantial danger of being sexually abused, and that mother failed to protect M.S. from sexual abuse. According to mother, her denial of the abuse was made many months before the jurisdiction hearing, no evidence was adduced mother should have known anything unusual was occurring to M.S., and there was no showing of harm caused to the minors by any conduct of mothers. Father joins in these contentions.

Our review of the sufficiency of the evidence to support the judgment is limited to whether the judgment is supported by substantial evidence. Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.)

The purpose of section 300 is to protect children from conduct or omissions by parents that place the children at a substantial risk of suffering serious physical harm or illness. ( 300, subd. (b); 300.2.) In this case, the petitions alleged generally the minors had suffered or were at a substantial risk of suffering serious physical harm as a result of the sexual abuse of M.S. by father and mothers failure to protect M.S. In evaluating the evidence, emphasis must be on circumstances existing at the time of the jurisdiction hearing. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) But evidence of past problems may be relevant to current circumstances and thus may be considered. (Cf. In re Michael S. (1981) 127 Cal.App.3d 348, 358.)

The evidence before the juvenile court at the jurisdiction hearing was in the form of the social workers report and testimony of witnesses at the hearing. The juvenile court indicated it had considered that report. The court also referred to various other documents and arguments submitted in connection with the proceedings.

Subdivision (d) of section 300 provides for jurisdiction where there is a substantial risk the minor will suffer serious physical harm or illness as a result of various types of conduct or acts of omission on the part of the parent of the minor.

Subdivision (d) of section 300 provides for jurisdiction where the minor has been sexually abused or the parent knew or should have known the minor was in danger of sexual abuse.

Subdivision (j) of section 300 provides for jurisdiction where the minors sibling has been abused and there is a substantial risk the minor will be abused.

Viewed in the light most favorable to the judgment (In re Terry D. (1978) 83 Cal.App.3d 890, 899), the record supports the juvenile courts jurisdictional finding under subdivisions (b), (d), and (j) of section 300. Five months before the jurisdiction hearing, mother denied that father had sexually abused M.S. Instead of taking M.S. to a doctor when she learned of M.S.s rash, mother suggested the maternal aunt of the minors may have led M.S. to make sexual abuse allegations. Moreover, although mother reported M.S. had engaged in sexual play, apparently she did not investigate or ask M.S. about how and where M.S. had learned such behavior.

On this record, although the evidence of neglect by mother is not overwhelming, the juvenile court reasonably could conclude, as it did, that mothers conduct placed the minors at a substantial risk of suffering serious physical harm, and that mother failed to protect M.S. Substantial evidence supports the courts jurisdictional findings.

III

Mother claims the evidence is insufficient to support the juvenile courts dispositional order removing the minors from parental custody. According to mother, the record is bereft of evidence of a substantial danger to the minors if they were not removed, and there is a lack of evidence that no reasonable means existed other than removal to protect the minors. Father joins in these arguments.

To support an order removing a child from parental custody, the juvenile court must find clear and convincing evidence that [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. ( 361, subd. (c)(1); see In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The court also must make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor and state the facts on which the decision to remove the minor is based. ( 361, subd. (d).)

Removal findings are reviewed under the substantial evidence test set forth above (In re Heather A., supra, 52 Cal.App.4th at p. 193), and evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.)

Evidence before the juvenile court at the disposition hearing showed father denied sexually molesting M.S. and mother did not believe father had done so. Past referrals pertaining both to M.S. and a half sibling, even though not substantiated, should have caused mother to become more sensitive to M.S.s complaints and alleged sexualized play. On this record, no alternative to removal of the minors from parental custody would have protected the minors. Accordingly, substantial evidence supports the dispositional order of removal.

DISPOSITION

The orders of the juvenile court are affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

SIMS , J.

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^[1] All further undesignated statutory references are to the Welfare and Institutions Code.

^[2] Father actually is the stepfather of M.S., who lived with mother. The biological father of M.S. is not involved in this appeal.