Opinion
B201345
9-4-2008
In re PATRICK C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KATHLEEN C., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
Kathleen C. challenges a dependency courts jurisdictional orders. She argues the evidence does not support the courts findings that (1) her oldest son sexually abused her youngest son, and that (2) she is unable to protect her youngest son from sexual abuse by his brother. (Welf. & Inst. Code, § 300, subd. (d).) We agree. The dependency courts findings regarding sexual abuse are reversed, and the cause is remanded with directions that the court make such further orders as are consistent with a nonfinding of sexual abuse.
All section references are to the Welfare & Institutions Code.
FACTS
Kathleen and Robert C. are the parents of two children: Anthony (born in 1992) and Patrick (born in 1995). Robert and Kathleen are now divorced. Robert is remarried to Gretchen C., and lives in Contra Costa County. Kathleen lives in the Los Angeles area. During summer school breaks, Anthony and Patrick have lived with Robert and Gretchen in Contra Costa County.
On August 10, 2006, Deputy Mack Cuttita of the Contra Costa County Sheriffs Department responded to Roberts residence to investigate a report of possible child and animal molestation. When Deputy Cuttita arrived at the scene, he interviewed Anthony, Gretchen, and Patrick.
Anthony told that deputy that the report arose after he and Patrick returned home from walking the family dog. Anthony said that he had used the leash to choke the dog, and that he had kicked the dog. Anthony further stated that he "hurts animals often," that he "did not know why he hurts animals," and that he wanted "some mental health assistance or he would hurt himself or someone else." After talking to Anthony, Deputy Cuttita arranged for Anthony to be hospitalized for a psychiatric evaluation.
Gretchen told Deputy Cuttita that she thought Anthony "may be doing things like [he stated]." During their conversation, Deputy Cuttita noticed that Gretchen kept "shifting her feet," and "looking around in a nervous manner," and he asked whether she needed any help. Gretchen said that she did not need any help, but kept crying uncontrollably, and having trouble giving a statement. Deputy Cuttita formed the opinion that Grenchens behavior was "strange" and found her statements were "not consistent" with the information that Anthony had given to the deputy.
Patrick stated that he saw Anthony use the leash to choke the dog. When Deputy Cuttita asked Patrick whether Anthony ever hurt him, Patrick replied, "sometimes," and explained that Anthony "kicked and punched him in the legs a lot." When Deputy Cuttita asked Patrick whether Anthony ever touched him in a different way, Patrick answered, "Gretchen said Anthony sits on me and has sex, but I do not remember if that happened to me."
On August 17, 2006, the Contra Costa County Department of Children and Family Services (CCDCFS) filed a petition on Patricks behalf. The petition alleged pursuant to section 300, subdivision (b), that Patrick had suffered serious physical harm "as a result of the failure or inability of his . . . parent . . . to supervise or protect [him] adequately." The petition alleged pursuant to section 300, subdivision (d), that Patrick had been sexually abused by a "member of [his] household," and that "[Patrick]s parents have been unable to protect [him] from being sexually abused by his older brother . . . ."
On August 18, 2006, the Contra Costa County dependency court entered orders finding no necessity to detain Patrick. At the same time, however, the court entered orders prohibiting Patrick from traveling out of the Bay area, and prohibiting Anthony from having any visitation or contact with Patrick. The court also executed an authorization for medical treatment, and James Carpenter, M.D., subsequently examined Patrick in September.
At two hearings in November 2006, the Contra Costa County dependency court received CCDCFSs jurisdiction reports into evidence, along with a medical report prepared by Dr. Carpenter. The court also heard testimony from Esmeralda Okendo (the CCDCFS emergency response investigator), and Elisa David (the CCDCFS social worker), and Anthony. Patrick testified in camera. On November 15, 2006, the Contra Costa County dependency court sustained the petition.
On December 7, 2006, the Contra Costa County dependency court granted CCDCFSs request to transfer the case to Los Angeles County, where Patrick had resumed living with Kathleen. On March 16, 2007, the Los Angeles County dependency court accepted jurisdiction of the case.
On June 13, 2007, the Los Angeles County dependency court entered orders setting forth the terms and conditions for a disposition plan, which primarily consisted of conjoint counseling for Patrick and Anthony. The court further ordered that Anthony could return to the family home, and set a 60-day progress report hearing "to address continued need for jurisdiction."
Kathleen filed a timely notice of appeal.
DISCUSSION
I. Insufficient Evidence Supports the Jurisdictional Finding of Sexual Abuse
A. Patricks hearsay statements should not have been admitted
Kathleen contends the Contra Costa County dependency courts jurisdictional finding that Anthony sexually abused Patrick is based primarily upon hearsay statements made by Patrick and Anthony, as recorded in the investigatory reports submitted to the court. Kathleen contends her childrens hearsay statements "should have been excluded" and/or "should never have been used" because they were so inconsistent that they lacked a required "indicia of reliability." (See In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero).) For this reason, argues Kathleen, there is no substantial evidence in support of the courts jurisdictional finding. The Los Angeles County Department of Children and Family Services has filed a letter advising our court that it neither supports nor opposes Kathleens position regarding the Contra Costa County dependency courts jurisdictional findings and orders. We agree with Kathleen that the record does not contain substantial evidence to support a finding that Anthony sexually abused Patrick.
B. Applicable law
A childs hearsay statement is admissible in a dependency proceeding when three conditions are satisfied: (1) the court must find that the time, content and circumstances of the statement provide sufficient indicia of reliability; (2) a child must either be available for cross-examination, or there must other evidence of child sexual abuse that corroborates the statement made by the child; and (3) all interested parties must have adequate notice of the public agencys intention to introduce the hearsay statements so as to be given an opportunity to contest it. (Lucero, supra, 22 Cal.4th at pp. 1238-1239.) Factors which may be considered in determining whether the requisite indicia of reliability exists for purposes of admitting a childs hearsay statement are (1) spontaneity and consistent repetition; (2) the mental state of the child; (3) the use of terminology which would not be expected from children of similar age; and (4) lack of motive to fabricate. (Id. at p. 1239.)
Apart from the issue of whether a childs hearsay statement is admissible, the published cases also recognize the due process problems which are inherent in relying on a childs hearsay statement in support of jurisdictional findings. (Lucero, supra, 22 Cal.4th at p. 1246.) As the Supreme Court explained in Lucero, "[t]he admissibility and substantiality of hearsay evidence are different issues. . . . [T]he out-of-court statements of a child who is subject to a jurisdictional hearing . . . may not be relied on exclusively unless the court finds that `the time, content and circumstances of the statement provide sufficient indicia of reliability. " (Id. at pp. 1247-1248, internal quotation marks and citations omitted.)
In Lucero, a three-year-old child used words and gestures to the social worker, a police officer, her foster mother, and stepsister, all of which indicated that her father had touched her vaginal area and her buttocks. (Lucero, supra, 22 Cal.4th at pp. 1249-1250.) The Supreme Court found this type of consistent communication provided sufficient indicia of reliability to constitute substantial evidence on which to find the child was a dependent child of the dependency court. (Ibid.)
C. Analysis
We agree with Kathleen that Patricks hearsay statements may not be relied upon as support for the dependency courts finding that Anthony sexually abused Patrick. In other words, we conclude that Patricks hearsay statements as recorded in the social study reports do not provide sufficient indicia of reliability to constitute substantial evidence in support of the courts finding. (Lucero, supra, 22 Cal.4th at pp. 1247-1248.)
Fairly summarized, Patricks hearsay statements may be said to be inconsistent at best. Patrick told Deputy Cuttita that "Gretchen said Anthony sits on me and has sex, but I do not remember if that happened to me." Patrick told the Contra Costa County emergency response investigator (Esmeralda Okendo) that Anthony "abused [him] and stuff," and that Anthony "would beat the dogs and rape them and do that to me too." Patrick told another law enforcement officer (Christopher Bruce) that Anthony "started to sexually abuse [him]" after their parents separated. Patrick told the social worker (Elisa David) "nothing had happened and [that] he made up the story" and he "denied that any sexual abuse occurred." Patrick made a similar denial of sexual abuse to Dr. Carpenter.
Dr. Carpenters physical examination of Patrick did not provide independent corroboration of sexual abuse. In summarizing his examination, Dr. Carpenter stated that his conclusions were "nondiagnostic, which neither proves nor disproves the possibility of sexual contact."
Absent Patricks vacillating hearsay statements, there is no substantial evidence in support of a finding that Anthony sexually abused Patrick. During his testimony, Patrick denied that Anthony had sexually abused him. Patricks testimony shows that (1) he denied he ever independently made a statement that Anthony had touched him inappropriately; and that (2) he said that Anthony had touched him inappropriately because he "trusted" Gretchen, and she had told him that Anthony had touched him inappropriately. A fair summary of Patricks testimony shows that the subject of sexual abuse by Anthony was raised by Gretchen. During his testimony, Anthony denied sexually abusing Patrick.
We agree with Kathleen that there is no substantial evidence to support the dependency courts findings under section 300, subdivision (d), regarding sexual abuse. The inconsistency in Patricks hearsay statements mean that they may not, standing alone, be considered substantial evidence in support of the courts findings. In our view, the evidence suggests that Anthony may be troubled, and that he may have acted with some measurable physical violence against his brother (as Patrick said, Anthony "hits [him] in the legs a lot"). The evidence also suggests that Gretchen may be troubled. For example, Anthony testified that Gretchen had threatened to kill him because he abused her dogs. None of this evidence, however, supports the dependency courts finding that Anthony sexually abused Patrick.
II. Insufficient Evidence Supports the Finding that Kathleen Failed to Protect Patrick
Kathleen contends the dependency court "should never have taken jurisdiction" (over her) in this case because there is no evidence to support the finding that she failed to protect Patrick from his brothers sexual abuse. As noted above, the Department has filed a letter advising our court that it takes no position on the jurisdictional findings rendered in Contra Costa County. We agree with Kathleen that the evidence shows she is a nonoffending parent.
In order to find a child to be a person within the dependency courts jurisdiction, the court must find (1) wrongful conduct or omissions by the parent as described under the dependency law; (2) causation; and (3) serious physical harm to the child or a substantial risk of such harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The third element implicitly includes a temporal component, and requires a showing that the substantial risk of serious physical harm to the child is reasonably likely to reoccur in the future. (In re David M. (2005) 134 Cal.App.4th 822, 829.)
The dependency petition filed in Contra Costa County essentially alleged that Patricks "parents" — which we take to include Kathleen — had been neglectful under the dependency law because they were unable to protect Patrick from being abused by his older brother. The evidence in the record, however, fails to show that this problem (assuming it ever existed) was likely to reoccur insofar as Kathleen was concerned. On the contrary, the record shows that the problem (if any) came to light while Patrick and Anthony were living in Contra Costa County, and Kathleen was living in the Los Angeles area. The record further shows that, upon learning of the potential problem, Kathleen responded promptly and reasonably to the situation. Kathleen did not disbelieve Patrick, but rather, arranged for both of her sons to participate in counseling. She arranged to keep the boys apart. There is nothing in the record to suggest that Kathleen ever attempted to interfere with the investigation of Patricks claims. We agree with Kathleen that the record simply does not support a finding that she is unable to protect Patrick. We agree with Kathleen that the record shows that she is a nonoffending parent.
Kathleen contends the dependency court should have placed the children with her and "closed the case," and that a voluntary service plan could have been implemented. (See section 301.) In our view, these matters would be better addressed in the dependency court.
DISPOSITION
The dependency courts findings pursuant to Welfare & Institutions Code, section 300, subdivision (d), regarding sexual abuse by Anthony, and Kathleens inability to protect against sexual abuse, are reversed. The matter is remanded to the dependency court with directions to issue such further orders as are consistent with this opinion.
We concur:
RUBIN, Acting P. J.
FLIER, J.