Hearsay evidence of sexual abuse in dependency hearing permissible even if witness isn't competent to testify.
Cite as
1998 DJDAR 12886Published
Oct. 9, 2000Filing Date
Dec. 18, 1998Summary
The C.A. 4th has ruled that hearsay evidence of sexual abuse in a dependency hearing, absent a showing of fraud, deceit or undue influence, was properly admitted even though the witness was not competent to testify.
Yolanda E. and Otilio L. were the parents of Lucero L., born on Aug. 3, 1994. Yolanda's three minor daughters, who were not fathered by Otilio, and Lucero lived with Yolanda. In November 1994, a report that Otilio had sexually abused Yolanda's three daughters was made and a dependency proceeding followed. The girls were removed from the home and later returned following the petition's dismissal. In July 1997 another report of child abuse was made and a social worker interviewed Yolanda's oldest daughter, Maribel. According to Maribel, Otilio had regularly abused her and her younger sisters, including Lucero. Yolanda denied any abuse. A dependency hearing was held in January 1998. Although a psychologist found Lucero incompetent to testify because of her age, her hearsay statements regarding sexual abuse by Otilio were admitted under Welfare and Institutions Code, section 355(c)(1)(B). At a dispositional hearing in March 1998, the trial court ordered Lucero to be placed into foster care. Otilio and Yolanda argued that the trial court erred by admitting Lucero's hearsay statements and that there was insufficient evidence for the trial court's orders.
The C.A. 4th affirmed. Section 355 states that "A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence . . . ." Evidence of Lucero's statements was found in several sources, including social worker's reports, which the trial court admitted into evidence. Section 355(c)(1)(B) applies only to hearsay statements that are contained in reports by social workers. As such, Otilio argued that Lucero's statements from sources other than the social workers' reports were improperly admitted. However, since there was enough evidence in the social workers' reports to support the trial court's decisions, other statements were not essential to support the trial court's findings. Otilio further contended that Section 355(a) required evidence admitted under the social study exception to be "legally admissible" and that the hearsay declarant must be competent to testify and available for cross-examination. But the legislature ". . . expressly provided for the admission of hearsay evidence," in situations including the incompetence of a child witness. Finally, Otilio's argument that he was deprived of his due process rights was without merit. Otilio exercised his right to cross-examine the people to whom Lucero made her statements.
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In re LUCERO L., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. OTILIO L. et al., Defendants and Appellants.
No. D030462 (Super. Ct. No. NJ10230D) California Court of Appeal Fourth Appellate District Division One Filed December 18, 1998
THE COURT:
The requests for publication submitted by County of San Diego, County of Los Angeles, and County for Santa Clara, are granted, and the opinion filed November 19, 1998, is ordered certified for publication.
The attorneys of record are:
Suzanne F. Evans, Elic Anbar, James W. Wessell and Alison E. Kaylor for Defendants and Appellants.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent.
Kandy Koliwer for Minor.
In re LUCERO L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. OTILIO L. et al., Plaintiffs and Appellant. No. D030462 (Super. Ct. No. NJ10230D) California Court of Appeal Fourth Appellate District Division One Filed November 19, 1998 APPEAL from orders of the Superior Court of San Diego County, Thomas R. Murphy and Joe O. Littlejohn, Judges. Affirmed.
Otilio L. and Yolanda E. appeal the juvenile court's jurisdictional and dispositional orders (Welf. & Inst. Code, 1 § 300, subds. (d), (j), 361, subd. (c)(4)) in the dependency case of their daughter Lucero L., born August 3, 1994. They contend the court erred by admitting Lucero's hearsay statements and the orders are unsupported by substantial evidence. We affirm.
BACKGROUND In addition to Lucero, Yolanda has six other children, not fathered by Otilio, including Fidel R., born around 1970; Maribel R., born in 1980; Nericela R., born in 1982; and Alma R., born in 1984.
In early November 1994, Fidel told Yolanda that Maribel, Nericela, and Alma had said Otilio had been touching them and had abused Maribel. Around November 16, a school principal received a report, which she relayed to Child Protective Services (CPS), that Otilio had raped Maribel, continued to touch her, and told her not to tell Yolanda; Maribel had noticed he was trying to touch Nericela and Alma in a sexual manner; and Nericela and Alma had said he tried to touch their private parts over their clothes. Otilio denied any inappropriate touching. Yolanda said she knew nothing and questioned all three girls repeatedly. They denied the touching, explaining they were scared of what would happen and knew Yolanda loved Otilio.
On November 21, a dependency petition was filed concerning Lucero, alleging that from September 1, 1993 to November 16, 1994, Otilio had sexual intercourse with Maribel and touched her breasts and genitals with his hand; he touched Nericela's and Alma's breasts and genital areas with his hand; and there was a substantial risk Lucero would be sexually abused (§ 300, subd. (j)). Lucero was detained with Yolanda on condition Otilio not live with them.
On January 12, 1995, Escondido police detective R. Rodriguez made an appointment with Yolanda to interview her daughters on January 18. On January 18, Maribel told the detective the rape had not occurred; she had friends who had been molested and did not want it to happen to her; Otilio was a very sensitive or gentle type of person and she did not like him to touch her; and that a friend had told her that if she reported a rape, the police or CPS would keep him away. Maribel maintained, however, that Otilio had touched her breasts and vaginal area over her clothes and she had seen him touch Nericela's buttocks over her clothing. Nericela told the detective that Otilio had not molested or touched her; she and her sisters did not like to be touched; they had friends who had been molested; Otilio was a gentle type of person and hugged them; and she had never seen him touching her sisters. Alma told Detective Rodriguez no one had touched her private parts and she had not seen anyone touch her sisters' private parts. The detective stated no further action would be taken and recommended the case be closed based on the interviews.
According to the social worker's January 30 additional information report, Maribel, Nericela, and Alma said they did not like Otilio because he diverted Yolanda's attention from them; they wanted him out of their home; and they felt comfortable now that he was gone and Yolanda was protecting them. On April 10, the court granted county counsel's motion to dismiss the petition for insufficient evidence.
JURISDICTIONAL EVIDENCE AND PROCEEDINGS The July 18, 1997 screening summary
According to a July 15, 1997, report to the child abuse hotline, Lucero said Otilio had touched her genital area, hurting her; he drank; and he was at home with her daily while Yolanda worked. That day, social worker Liliana Rodriguez 2 interviewed Lucero at home alone. Lucero said, "My daddy does not drink anymore." She said he touched her "cola," pointing to and touching her vaginal area, and that this "made owies." When Rodriguez asked how he touched her, Lucero put her index finger at the bottom of the shorts of a stick figure Rodriguez had drawn, between the figure's legs, and moved her finger upward. She also said, in Spanish, "I touched the butt of my daddy," again pointing to and touching her vaginal area. She denied that Otilio touched her buttocks.
The same day, social worker Rodriguez interviewed Maribel. Maribel cried during the interview. She said that when she and her sisters were returned home after being detained, they recanted because Yolanda had taken her into the bedroom with Otilio and asked her to tell the truth in front of him, and he had denied her allegations and called her a liar. Maribel had then told Yolanda, sarcastically, to believe him. Maribel told Rodriguez the molestation did occur; it began toward the end of the sixth grade, took place while Yolanda was working, and consisted of "everything." When asked to clarify, Maribel said Otilio touched her vaginal area, penetrated her vagina with his penis, kissed her and placed his tongue in her mouth, fondled her breasts, undressed her, and held her hands over her head with one hand. He made no overt threats but implied something would happen to Yolanda and said "[n]o one would believe you." Maribel said Otilio tried to molest the other girls and she believed they were fondled but not penetrated. After she and her sisters were returned home, she moved in with her boyfriend.
In the interview, Maribel expressed concern for Lucero. Lucero told her she was afraid to shower because Otilio showered with her. Lucero said Otilio lay on top of her and demonstrated how he did this. Maribel described the movement as sexual, "like when someone had sex." She said she asked Lucero if she had seen her mother doing that and Lucero said, "No, papi." Maribel reported that when Lucero went to the bathroom she complained of "owies." Maribel said Yolanda mistrusted Otilio and told Maribel to take Lucero; Maribel tried to have Lucero stay with her for days. Maribel did not want to hurt Yolanda but realized Lucero would be removed from Yolanda's home and wanted Lucero to live with her when she turned 18. Maribel reported Otilio told "sick and perverted jokes" and that while he molested her, he boasted other girls her age wanted him. She said her paternal grandfather, Yolanda's father-in-law, had molested Yolanda, and Yolanda tried to protect the girls from that side of the family.
Social worker Rodriguez also interviewed Yolanda on July 15. Yolanda said Otilio did not drink and had not molested Lucero, who was with a baby-sitter most of the time while she was at work. She denied allowing Lucero to see any sexual behavior.
The petition and detention
On July 18, 1997, a new petition was filed concerning Lucero, alleging that between January 1 and July 15, Otilio sexually abused her, including occasionally touching her vaginal area, causing minor pain, and lying on top of her and moving as if having sexual intercourse with her (§ 300, subd. (d)); and between September 1, 1993, and November 30, 1994, he sexually abused Maribel, including touching her vaginal area; penetrating her vagina with his penis; kissing her with his tongue in her mouth; and fondling her breasts, putting Lucero at substantial risk of sexual abuse (§ 300, subd. (j)). Lucero was detained out of her home.
The August 13, 1997 additional information report
On August 6, 1997, Yolanda's therapist told social worker Ysela Galvan-Dupree that Yolanda did not believe she had failed to protect Lucero or that Otilio would abuse Lucero. The therapist emphasized the need for Yolanda to complete a sexual abuse program.
The September 22, 1997 social study
According to Galvan-Dupree, Lucero had a clear vocabulary and was bright and talkative, clear in Spanish, and learning to speak English. The social study repeated the statements and gestures regarding Otilio 's touching that Lucero made to social worker Rodriguez on July 15. It also noted Lucero reported her father disciplined her by hitting her with a belt; Yolanda did nothing. Yolanda said she would attend only one cycle of a sexual abuse program, although the program recommended she attend for at least a year; said no one would keep her away from Otilio; and denied he had molested any of her daughters.
The September 22, 1997 additional information report
A July 22, 1997, letter from foster mother Alice S. stated that on July 19, the day after she picked up Lucero at Polinsky Children's Center, Lucero repeated, "Poppy owee." When Alice said, "Donde owee?", Lucero placed her hand over her vaginal area and said, "No aqui," then, bending over slightly, indicated her rectal area with her fingers and said, "Aqui owee. Poppy owee."
The November 17, 1997 additional information report
An October 13 police report summarized officer Theresa Ramirez's October 9 videotaped interview of Lucero in Spanish. According to Ramirez, "Lucero was difficult to understand because of her limited verbal skills due to her age" and "It was difficult to establish if Lucero knew the difference between telling the truth and telling a lie." Lucero said she lived with her Papa Otilio and her Mami Yolanda. She referred to the vagina as "cola" and "pee pee" and the rectum as "cola" and "caca." While she had difficulty identifying body parts related to bad touching, she made spontaneous statements indicating her "Dad" and "Papa" had touched her in a bad way. She said, "'mi papa es malo' (my Dad is bad). 'It what my Dad did'." When asked if someone had touched her "cola," Lucero replied, "Mi Papa" and pointed to her genital area, front and back. She referred to an anatomically correct male doll as her "Papa" and indicated through actions and statements that her "Papa" had touched her vaginal and rectal areas. She indicated, though not very clearly, that her "Papa" had touched her with his penis. She could not say how the touching had occurred, although she said she had seen her father's penis. Ramirez concluded "some inappropriate sexual acts may have occurred between Lucero and . . . Otilio [but] because of her age and verbal skills there were inconsistent statements and it appears that this may be a difficult case for prosecution."
The first November 26, 1997 additional information report
On September 22, Yolanda completed the first cycle of her sexual abuse program but still denied the molestation. On October 30, Galvan-Dupree saw what appeared to be Otilio's personal items in Yolanda's room. In November, maternal aunt Aurora R. said she believed Otilio still lived with Yolanda because Aurora and other family members had seen him in the home. Aurora said she had tried to talk to Yolanda about the seriousness of the situation but Yolanda seemed "unwilling to believe anything anyone says."
The second November 26, 1997 additional information report
A November 13 medical examination of Lucero revealed an anal fissure, which could be caused by constipation or abuse. According to the medical report, there were no behavioral or emotional symptoms. The physician concluded the exam was normal and neither supported nor negated a history of sexual abuse.
The jurisdictional hearing and motions
The hearing began on January 14, 1998, and concluded on January 21. Otilio and Yolanda made motions in limine to exclude Lucero's statements, including those to social workers, police officers, and family members. Counsel stipulated Lucero was incompetent to testify and the court concluded "it appears to be the case." The court ruled Lucero's statements were inadmissible under In re Cindy L. (1997) 17 Cal.4th 15 because they were uncorroborated but admissible under section 355, subdivisions (c)(1)(B) and (C).
Maribel's testimony
Crying, 17-year-old Maribel testified that when she was in the sixth grade, Otilio came to her home one morning when she had stayed home from school and Yolanda was at work. Maribel said she had told social worker Rodriguez the truth, but when asked what happened between her and Otilio that day, Maribel testified she did not want to talk about it and asked to leave. The court recessed for lunch, admonishing the witnesses not to discuss the case among themselves.
When court reconvened, Maribel testified she had gone to lunch with Yolanda. Maribel said she did not remember if Otilio had touched her and she had lied when she had told social worker Rodriguez otherwise. Maribel testified that not everything she had told Rodriguez was a lie, then testified to the contrary. When reminded she had said before lunch that she had told Rodriguez the truth, Maribel responded, "I was very confused." She testified she had truthfully told Rodriguez that Otilio had told sick jokes.
Maribel testified she told social worker Galvan-Dupree that something had happened between her and Otilio "[e]very time that she asked me about it" although "nothing happened." After Maribel and her sisters returned home following their 1994 detention, Yolanda and Otilio took her in their bedroom and talked to her until she recanted to them; she then recanted to a social worker although something in fact had happened between her and Otilio.
On cross-examination, Maribel testified she wanted Lucero returned to Yolanda; Galvan-Dupree had said that this would require that Otilio be out of the home and Maribel testify that he had had sexual intercourse with her. Maribel said she had reported that Otilio had molested her to get Lucero home, but when asked whether her motivation was to secure Lucero's return or to tell the truth, Maribel was unsure. Maribel preferred that Yolanda be alone or with Maribel's real father rather than with Otilio.
On redirect examination, Maribel testified she had told her sister-in-law, Esmeralda T., that Otilio had molested her, Esmeralda had told the principal, the principal had asked Maribel, and Maribel had said yes. This occurred before Maribel had any contact with a social worker.
Maribel further testified that around the time two-and-one-half-year-old Lucero was detained, she told Maribel, "owie." When Maribel asked what hurt, Lucero pointed to her vaginal area. This happened more than twice. Maribel checked for a rash and but found none. Lucero told Maribel how she got hurt; Maribel did not remember if she said she was afraid of her papi or that he lay on her. Lucero said she did not like to shower with her dad. Maribel told Yolanda what Lucero had said. When social worker Rodriguez told Maribel that Lucero was going to be removed from Yolanda, Maribel responded she did not want to hurt Yolanda.
Testimony of social worker Rodriguez
When Rodriguez interviewed Lucero in July 1997, Lucero was nearly three years old, talkative, friendly, outgoing, and showing no distress. During the 20-minute interview, Rodriguez spoke in Spanish and Lucero's speech was clear. Lucero correctly identified body parts on a stick figure Rodriguez drew. Lucero called the vaginal area and buttocks "cola." When Rodriguez asked, "Has anyone every touched you here?", Lucero said, "Yes. My daddy," using the word "popi" for daddy. When Rodriguez asked, "How?", Lucero placed her index finger at the bottom of the leg of the shorts on the stick figure and moved her finger upward. When Rodriguez touched her own buttocks to ask if he had touched her buttocks, Lucero said no. When Rodriguez asked, "What happens when he touches you?" Lucero said, "Made owies." Rodriguez asked if it made owies when Lucero went to the bathroom; Lucero said no. Lucero said that when she got in trouble, her dad hit her with a belt on her buttocks.
After this, Rodriguez interviewed Maribel, who expressed concern that what had happened to her might be happening to Lucero. At this point, Rodriguez had not told Maribel what Lucero had told her. Maribel said that after being taken into custody following her disclosure Otilio had molested her, she recanted when she was returned home because Yolanda had placed her in a room with Otilio and repeated, "Tell me the truth." Maribel told Yolanda, "Yeah, just believe him." Maribel told Rodriguez Otilio did "everything" to her: touched her, kissed her, penetrated her vaginal area with his penis, and held her hands over her head. He did not threaten her but implied he would hurt Yolanda. When Rodriguez asked why she thought Otilio was bothering Lucero, Maribel said because Lucero said it hurt when she went to the bathroom and said Otilio lay on top of her and made movements like sex. According to Maribel, Lucero stayed with her for days, with Yolanda's encouragement, and Lucero told Otilio she did not want to go home. After Rodriguez raised the subject, Maribel said she wanted Lucero to live with her when she turned 18. Maribel said Otilio made sick, sexual jokes and boasted about molesting other girls. Maribel reported Yolanda's father-in-law had molested Yolanda. During the interview, Maribel was tearful and said Yolanda was going to be hurt.
On cross-examination, Rodriguez testified she had attended between six and ten training sessions on interviewing children, lasting between four hours and two days. She did not test Lucero to determine whether she knew the difference between truth and falsity or ask her to distinguish between Otilio's wiping her when she went to the bathroom and touching her for another reason.
Testimony of social worker Galvan-Dupree
The week before the jurisdictional hearing, Maribel told Galvan-Dupree she hated Otilio because of his jokes, in Yolanda's presence, that he would have Maribel and she would have his baby. Maribel also said she hated him because one day when she stayed home from school, he hugged her, held her wrists with one hand, touched her private parts, touched her with his penis, and had sex with her against her will. When she told him no and said she would tell Yolanda, he repeated, "Nobody's going to believe you," mentioned Yolanda, and said something would happen. Maribel cried as she described this incident. She asked if she had to go to court; Galvan-Dupree said she did if she were served with a subpoena. Maribel asked if she had to testify in front of Yolanda and Otilio; Galvan-Dupree said they would be there.
Testimony of psychologist Ricardo Weinstein
Weinstein was experienced in interviewing children regarding sexual abuse. Information from two-and-one-half-year-olds lacked dependability; children younger than four had difficulty expressing their experiences verbally. Information had to be elicited with specific questions, but this led to doubt whether the child was responding to the statement inherent in the question or actually describing a personal experience.
After viewing a videotaped interview of Lucero, Weinstein concluded she was not able to differentiate between truth and falsity, did not comprehend the concept of good and bad touching, and possessed insufficient verbal skills to express her experiences. The videotape showed contamination (that is, the description of an experience the child then owned) regarding pain and names of body parts.
Testimony of foster mother Alice S.
In early January 1998, Alice observed Lucero lying on her back, with her hands inside her clothing, rubbing her genital area. Alice asked, "Who showed you that?" and Lucero said, "Daddy did it."
Testimony of minor's counsel's investigator Ruby Shamsky
Shamsky interviewed Maribel on October 10, 1997. At first Maribel denied Otilio had touched her sexually; after Shamsky asked her to be totally honest, Maribel said he had "molested and raped" her: he pulled down her pants, pulled up her arms, and got on top of her on the couch, saying "you're mine" and "if you tell, something will happen to your mother." When the girls were returned home after being detained, Yolanda put them in a room with Otilio and made Maribel say it never happened. Maribel said this because Alma and Nericela missed Yolanda and Maribel felt it was unfair to keep them away their mother. Maribel did not tell Yolanda about the rape; she told her Otilio had touched her but Yolanda did not take it seriously. Eventually Maribel told Esmeralda. Beginning when Lucero was two, Maribel asked her regularly whether Otilio had touched her. Maribel feared she might have taught Lucero to say she was touched.
Testimony of psychologist Constance Dolenberg
Dolenberg, a child abuse specialist, testified it was extremely common for children to recant, due to their attempts to protect themselves and their families' disbelief of their allegations. It was also common for children to re-recant and re-disclose. A recantation did not mean an allegation was untrue.
The molestation risk to a man's three-year-old biological child increased greatly if he had molested an eleven- or twelve-year-old nonbiological female child in the household, and increased as the three-year-old aged. The pathology of a man who molested his girlfriend's 14-year-old daughter was related to the pathology of a man who molested his own two-and-one-half-year-old daughter. These pathologies tended to occur in the same individuals.
Three-year-olds were not inherently unreliable in reporting events; they merely gave less information. Dolenberg watched a videotaped interview of Lucero and saw one clear disclosure of touching of private parts. Lucero touched herself in response to a question; research showed this is how molestation victims respond; children who made false allegations merely nod and rarely elaborate.
Directive questions (e.g., "did he touch you here?") were asked in the videotape; such questions were required with three-year-olds. Suggestive questions (e.g., "he touched you here, didn't he?") were not asked. A suggestive question asked every day for 11 months would yield an affirmative answer if the questioner appeared to want one, but would be likely to yield a negative response in another setting. A father's help with a child's hygiene would not cause an affirmative answer.
DISPOSITIONAL EVIDENCE AND PROCEEDINGS On November 26, social worker Galvan-Dupree asked Yolanda why she still did not believe her children. Yolanda responded that if Otilio were found guilty, then she would believe them. On February 5, 1998, Galvan-Dupree reported that Otilio had not provided his telephone number and a new address; she was concerned he still lived with Yolanda. Yolanda had missed several therapy sessions and said she might not make it to her sexual abuse program. On February 27, the therapist wrote that Yolanda still doubted Otilio had molested Lucero, but would be able to protect Lucero from further abuse "once [she] ha[d] sufficient time to comprehend the significance of the Court's findings." The therapist believed Yolanda would comply with court orders.
At the March 16 dispositional hearing, Yolanda submitted on the September 22, 1997, social study and an unspecified amendment to its recommendation that had been discussed in chambers. Otilio concurred with the recommendation as amended. The court placed Lucero in foster care; gave the San Diego County Health and Human Services Agency (the Agency) discretion to detain her with Yolanda if a maternal relative lived in the home, upon concurrence of minor's counsel; granted Yolanda and Otilio supervised visits; and gave the Agency discretion to allow Yolanda unsupervised visits with concurrence of minor's counsel.
DISCUSSION Otilio and Yolanda contend the court erred by admitting Lucero's hearsay statements and the jurisdictional and dispositional orders are unsupported by substantial evidence.
THE JURISDICTIONAL HEARING In re Cindy L. (The Child Dependency Hearsay Exception)
The child dependency exception to the hearsay rule permits the admission in a dependency proceeding of an out-of-court statement of a child alleged to be a victim of sexual abuse under the following conditions. First, the time, content, and circumstances of the statement furnish adequate indicia of reliability, determined by such factors as (a) spontaneity and consistent repetition; (b) the declarant's mental state; (c) his or her precocious knowledge of sexual matters and use of terminology unexpected of a similarly-aged child; and (d) absence of a motive to fabricate. Second, the child is available for cross-examination or there is evidence of sexual abuse corroborating the child's statement. Third, interested parties are given sufficient notice of the public agency's intent to introduce the statement so they can contest it. (In re Cindy L., supra, 17 Cal.4th at pp. 18, 29-30, 34-35.) The child dependency exception may apply even when the court finds the child is not competent to testify because he or she is unable to differentiate between truth and falsehood or understand the duty to speak truthfully. (Id. at pp. 18, 34-35.) Competency is "only one circumstance to be considered in determining whether the child's statement is reliable." (Id. at p. 18.)
The Cindy L. court characterized corroborative evidence as "'"evidence . . . which would support a logical and reasonable inference" that the act of abuse described in the hearsay statement occurred.'" (In re Cindy L., supra, 17 Cal.4th at p. 35, quoting State v. Swan (1990) 114 Wn.2d 613, fn. omitted.) The corroboration requirement, along with the indicia of reliability outlined above, helps safeguard against the possibility of fabrication by the child. (In re Cindy L., supra, 17 Cal.4th at p. 34.) In Cindy L., the reviewing court concluded corroboration was furnished by a medical examination revealing a fact consistent with sexual abuse. (Id. at p. 35.) Here, the juvenile court determined Lucero's statements were uncorroborated. We need not address the propriety of this determination as we conclude the juvenile court properly admitted Lucero's hearsay statements contained in the social worker's reports under section 355, subdivision (c)(1)(B).
Section 355 3 (The Social Study Hearsay Exception)
Section 355 provides:
"(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 subdivision[] (c) . . . .
"(1) For the purposes of this section, 'social study' means any written report . . . by the county probation or welfare department . . . in a dependency proceeding . . . .
"(2) The preparer of the social study shall be made available for cross-examination upon a timely request by any party. . . .
". . . . . . . . . . . . . . . . . . . . . . . . "
"(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:
". . . . . . . . . . . . . . . . . . . . . . . . "
"(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."
While the juvenile court's ruling is somewhat unclear, it apparently admitted all Lucero's statements, both those in the social worker's reports and otherwise, under section 355, subdivision (c)(1)(B). It is evident from a reading of section 355, subdivision (b) that subdivision (c)(1)(B) applies only to hearsay statements in the social worker's reports. We conclude below, however, that Lucero's statements not included in the reports were unnecessary to support the jurisdictional finding.
Yolanda and Otilio argue section 355, subdivision (a) requires evidence admitted under the social study exception be "legally admissible" and that the hearsay declarant be competent and available for cross-examination. Their argument is premised on the continued applicability of the limitations on this exception outlined in In re Malinda S. (1990) 51 Cal.3d 368, 381-382 and In re Basilio T. (1992) 4 Cal.App.4th 155, 166, which both preceded the 1996 amendments to section 355.
In In re Cindy L., supra, 17 Cal.4th at page 22, footnote 3, the Supreme Court recognized: "Our holding in Malinda S. has been partially codified and partially modified by 1996 amendments to section 355.[ 4] Section 355, subdivision (a), now provides that for purposes of a jurisdictional hearing, '[a]ny legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within jurisdiction of the juvenile court is admissible and may be received in evidence.' (Stats. 1996, ch. 36, § 1.) Subdivision (b) then provides that a social study and hearsay evidence contained in it are admissible and constitute competent evidence on which a finding of jurisdiction pursuant to section 300 may be based, to the extent allowed by section 355, subdivisions (c) and (d)." In other references to the scope of section 355, the Cindy L. court noted that section "provide[s] . . . for greater admissibility of child hearsay statements that are included in social studies" (In re Cindy L., supra, 17 Cal.4th at p. 30) and "the Legislature has amended section 355 to broadly authorize reliance on any hearsay contained in the social study by a child victim under the age of 12, as long as an objecting party does not prove that the statement was procured by means of fraud, deceit, or undue influence." (Id. at p. 28, fn. 6.) The Supreme Court left for another day the issue "whether the amended section 355 obviates the need for the child dependency exception." (Ibid.)
"[W]hen . . . the Legislature undertakes to amend a statute which has been the subject of judicial construction . . . it is presumed that the Legislature was fully cognizant of such construction, and when substantial changes are made in the statutory language it is usually inferred that the lawmakers intended to alter the law in those particulars affected by such changes." (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659.) In amending section 355, the Legislature made substantial changes altering the statute's construction in In re Malinda S., supra, 51 Cal.3d 368 and expressly provided for the admission of hearsay evidence in social studies subject to specified conditions. We therefore reject Yolanda and Otilio's attempt to circumscribe the admission of such evidence based on prior case law. Furthermore, the Legislature could have, had it so desired, required that a child be competent as a prerequisite for admission of his or her hearsay statements in the social study. That it failed to do so establishes its intent that there be no such requirement. (In re Chantal S. (1996) 13 Cal.4th 196, 206-207.)
Additionally, we note that section 355, subdivision (c)(1)(D) provides an exception allowing the admission of hearsay evidence, separate from the exception of subdivision (c)(1)(B), when "[t]he hearsay declarant is available for cross-examination." Were availability for cross-examination a requirement for admission of all evidence under section 355 as Yolanda and Otilio assert, subdivision (c)(1)(D) would be surplusage, a result to be avoided. (People v. Loeun (1997) 17 Cal.4th 1, 9.) Similarly, we note that section 355, subdivision (c)(1)(A) provides an exception allowing the admission of hearsay evidence where it "would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay." This further undermines Yolanda and Otilio's proposed construction of section 355, subdivision (a) as imposing a supplementary requirement of legal admissibility.
California Rules of Court, 5 rule 1450, which Yolanda and Otilio also cite, fails to impose an independent threshold requirement of legal admissibility. Rule 1450(b) states: "Except as provided in . . . subdivisions (c), (d), and (e), the admission and exclusion of evidence shall be in accordance with the Evidence Code as it applies to civil cases." Rule 1450(c) parallels the outline of section 355, subdivision (b), while rule 1450(d)(2) parallels section 355, subdivision (c)((1)(B).
Nor do we agree with Yolanda's intimation that this interpretation of section 355 deprives her of due process because it lacks the safeguards afforded by requirements of competency and cross-examination. Section 355, subdivision (d) states: "This section shall not be construed to limit the right of any party to the jurisdictional hearing to subpoena a witness whose statement is contained in the social study or to introduce admissible evidence relevant to the weight of the hearsay evidence or the credibility of the hearsay declarant." Yolanda and Otilio exercised their right to challenge the reliability of Lucero's hearsay statements by cross-examining the persons to whom she made them, including Maribel and social worker Rodriguez. Yolanda also cross-examined the foster mother and investigator Shamsky and successfully sought Shamsky's notes from her interview with Maribel. Otilio called Dr. Weinstein as an expert witness in an attempt to show Lucero's statements were unreliable and both parents cross-examined respondent's expert, Dr. Dolenberg, on this subject. They apparently did not subpoena Officer Ramirez who interviewed Lucero on videotape.
Finally, without merit is Otilio's claim that in cases of sexual abuse, only In re Cindy L., supra, 17 Cal.4th 15, and not section 355, applies to statements in social studies. These two exceptions to the hearsay rule have differing requirements; one, the other, or both may apply in any given case, and there is no language in section 355 prohibiting its application in cases of sexual abuse. Moreover, section 355, subdivision (c)(1)(B) is not a broad authorization for the admission of children's hearsay statements through social studies. Rather, if there is an objection, it allows the admission of such statements in the limited case where the child who is the subject of the dependency proceeding is under 12 years old and there is no showing of unreliability due to fraud, deceit, or undue influence.
Yolanda and Otilio raised timely objections in the court below to the admission of Lucero's hearsay statements in the social worker's reports. Clearly, Lucero was under the age of 12 years and the subject of the jurisdictional hearing. The juvenile court did not err by concluding Yolanda and Otilio had failed to establish the statements were the product of fraud, deceit, or undue influence and hence unreliable. It did not abuse its discretion in admitting Lucero's hearsay statements contained in the social worker's reports pursuant to section 355, subdivision (c)(1)(B). (Cf. In re Cindy L., supra, 17 Cal.4th at p. 35.) There was no due process violation.
Sufficiency of evidence
Yolanda maintains because there was no evidence other than Lucero's hearsay statements to support the section 300, subdivision (d) finding, the jurisdictional order must be reversed. Alternatively, she contends that even if the statements were admissible, they did not amount to substantial evidence supporting the finding because they were neither reliable nor corroborated and Lucero was incompetent. Otilio argues the facts supporting the jurisdictional finding under section 300, subdivision (d) were unreliable because Lucero was incompetent and her statements uncorroborated and Maribel lied, either when she accused Otilio of sexually abusing her or when she recanted. He further asserts there was no evidence he sexually abused Lucero as defined in section 300, subdivision (d) and insufficient evidence to show a substantial risk of such future sexual abuse.
"Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300." (§ 355, subd. (a).) Section 300, subdivision (d) provides for a dependency when "[t]he minor has been sexually abused, or there is a substantial risk that the minor will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent . . . , or the parent . . . has failed to adequately protect the minor from sexual abuse when the parent . . . knew or reasonably should have known that the minor was in danger of sexual abuse." Penal Code section 11165.1 broadly defines sexual abuse to include sexual assault, which in turn comprises various specified Penal Code violations as well as a nonexhaustive list of sexual conduct. 6
As discussed above, Lucero's hearsay statements were properly admitted. We need not revisit the matters of reliability and competency, nor need statements be corroborated to constitute substantial evidence. Furthermore, the juvenile court determined Maribel's recantations were untrue. We defer to this evaluation of her credibility. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)
The record contains substantial evidence supporting the section 300, subdivision (d) finding. Through words and gestures, Lucero told social worker Rodriguez that Otilio touched her vaginal area, causing pain, and she touched his buttocks. In the same way, Lucero told the foster mother that Otilio touched her rectal area, causing pain; told Officer Ramirez that Otilio touched her vaginal and rectal areas; and told Maribel that Otilio lay on top of her and moved in a sexual manner. Lucero also related to Maribel that Otilio showered with her and it hurt when she went to the bathroom. Maribel said Otilio had molested her. Dr. Dolenberg testified regarding the increased risk posed to the child of a perpetrator who had molested an older child not his own, Lucero's videotaped disclosure of molestation, and the reliability of statements by young children. Yolanda denied Otilio had molested her daughters and refused to stay away from him yet apparently mistrusted him.
In view of our conclusion there is substantial evidence supporting the true finding Otilio sexually abused Lucero and Yolanda failed to protect although she knew or reasonably should have known of the risk (§ 300, subd. (d)), we need not address the sufficiency of the evidence supporting the finding Otilio sexually abused Maribel (§ 300, subd. (j)). 7
THE DISPOSITIONAL HEARING Otilio and Yolanda base their challenge to the dispositional order on the asserted infirmity of the jurisdictional order. As we have determined the jurisdictional order was proper, we reject this argument.
DISPOSITION The orders are affirmed.
WE CONCUR:
HUFFMAN, Acting P.J.
McDONALD, J.
1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 The social worker has no apparent relationship to Detective Rodriguez mentioned above. Unless otherwise specified, all references to "Rodriguez" are to the social worker.
3 As noted above, the court also concluded Lucero's hearsay statements were admissible under section 355, subdivision (c)(1)(C). Subdivision (c)(1)(C), pertaining only to hearsay declarants who are certain peace officers, health practitioners, social workers, or teachers, is inapplicable here.
4 Before the 1996 amendments, section 355 did not expressly speak to the admissibility of social studies. Section 355 read in its entirety:
"At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him or her within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300. If the parent or guardian is not represented by counsel at the hearing, it shall be deemed that objections that could have been made to the evidence were made."
5 All rule references are to the California Rules of Court.
6 Penal Code section 11165.1 states in pertinent part:
"As used in this article, 'sexual abuse' means sexual assault . . . as defined by the following:
"(a) 'Sexual assault' means conduct in violation of one or more of the following [Penal Code] sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (penetration of a genital or anal opening by a foreign object), or 647.6 (child molestation).
"(b) Conduct described as 'sexual assault' includes, but is not limited to, all of the following:
"(1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.
"(2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
"(3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.
"(4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.
"(5) The intentional masturbation of the perpetrator's genitals in the presence of a child."
7 Yolanda maintains respondent should be estopped from arguing substantial evidence supports the jurisdictional findings because it moved to dismiss the 1994 petition for insufficient evidence and the court, knowing she and Otilio had the same address, dismissed the petition and returned the girls to her care. We need not respond point by point to Yolanda's detailed and farfetched argument; suffice it to say that respondent's inability in 1995 to prove Otilio molested Maribel, Nericela, and Alma did not grant him permission to molest them or Lucero, nor did it absolve Yolanda of her duty to protect.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. OTILIO L. et al., Defendants and Appellants.
No. D030462 (Super. Ct. No. NJ10230D) California Court of Appeal Fourth Appellate District Division One Filed December 18, 1998
THE COURT:
The requests for publication submitted by County of San Diego, County of Los Angeles, and County for Santa Clara, are granted, and the opinion filed November 19, 1998, is ordered certified for publication.
The attorneys of record are:
Suzanne F. Evans, Elic Anbar, James W. Wessell and Alison E. Kaylor for Defendants and Appellants.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent.
Kandy Koliwer for Minor.
HUFFMAN, Acting P.J.
In re LUCERO L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. OTILIO L. et al., Plaintiffs and Appellant. No. D030462 (Super. Ct. No. NJ10230D) California Court of Appeal Fourth Appellate District Division One Filed November 19, 1998 APPEAL from orders of the Superior Court of San Diego County, Thomas R. Murphy and Joe O. Littlejohn, Judges. Affirmed.
Otilio L. and Yolanda E. appeal the juvenile court's jurisdictional and dispositional orders (Welf. & Inst. Code, 1 § 300, subds. (d), (j), 361, subd. (c)(4)) in the dependency case of their daughter Lucero L., born August 3, 1994. They contend the court erred by admitting Lucero's hearsay statements and the orders are unsupported by substantial evidence. We affirm.
BACKGROUND In addition to Lucero, Yolanda has six other children, not fathered by Otilio, including Fidel R., born around 1970; Maribel R., born in 1980; Nericela R., born in 1982; and Alma R., born in 1984.
In early November 1994, Fidel told Yolanda that Maribel, Nericela, and Alma had said Otilio had been touching them and had abused Maribel. Around November 16, a school principal received a report, which she relayed to Child Protective Services (CPS), that Otilio had raped Maribel, continued to touch her, and told her not to tell Yolanda; Maribel had noticed he was trying to touch Nericela and Alma in a sexual manner; and Nericela and Alma had said he tried to touch their private parts over their clothes. Otilio denied any inappropriate touching. Yolanda said she knew nothing and questioned all three girls repeatedly. They denied the touching, explaining they were scared of what would happen and knew Yolanda loved Otilio.
On November 21, a dependency petition was filed concerning Lucero, alleging that from September 1, 1993 to November 16, 1994, Otilio had sexual intercourse with Maribel and touched her breasts and genitals with his hand; he touched Nericela's and Alma's breasts and genital areas with his hand; and there was a substantial risk Lucero would be sexually abused (§ 300, subd. (j)). Lucero was detained with Yolanda on condition Otilio not live with them.
On January 12, 1995, Escondido police detective R. Rodriguez made an appointment with Yolanda to interview her daughters on January 18. On January 18, Maribel told the detective the rape had not occurred; she had friends who had been molested and did not want it to happen to her; Otilio was a very sensitive or gentle type of person and she did not like him to touch her; and that a friend had told her that if she reported a rape, the police or CPS would keep him away. Maribel maintained, however, that Otilio had touched her breasts and vaginal area over her clothes and she had seen him touch Nericela's buttocks over her clothing. Nericela told the detective that Otilio had not molested or touched her; she and her sisters did not like to be touched; they had friends who had been molested; Otilio was a gentle type of person and hugged them; and she had never seen him touching her sisters. Alma told Detective Rodriguez no one had touched her private parts and she had not seen anyone touch her sisters' private parts. The detective stated no further action would be taken and recommended the case be closed based on the interviews.
According to the social worker's January 30 additional information report, Maribel, Nericela, and Alma said they did not like Otilio because he diverted Yolanda's attention from them; they wanted him out of their home; and they felt comfortable now that he was gone and Yolanda was protecting them. On April 10, the court granted county counsel's motion to dismiss the petition for insufficient evidence.
JURISDICTIONAL EVIDENCE AND PROCEEDINGS The July 18, 1997 screening summary
According to a July 15, 1997, report to the child abuse hotline, Lucero said Otilio had touched her genital area, hurting her; he drank; and he was at home with her daily while Yolanda worked. That day, social worker Liliana Rodriguez 2 interviewed Lucero at home alone. Lucero said, "My daddy does not drink anymore." She said he touched her "cola," pointing to and touching her vaginal area, and that this "made owies." When Rodriguez asked how he touched her, Lucero put her index finger at the bottom of the shorts of a stick figure Rodriguez had drawn, between the figure's legs, and moved her finger upward. She also said, in Spanish, "I touched the butt of my daddy," again pointing to and touching her vaginal area. She denied that Otilio touched her buttocks.
The same day, social worker Rodriguez interviewed Maribel. Maribel cried during the interview. She said that when she and her sisters were returned home after being detained, they recanted because Yolanda had taken her into the bedroom with Otilio and asked her to tell the truth in front of him, and he had denied her allegations and called her a liar. Maribel had then told Yolanda, sarcastically, to believe him. Maribel told Rodriguez the molestation did occur; it began toward the end of the sixth grade, took place while Yolanda was working, and consisted of "everything." When asked to clarify, Maribel said Otilio touched her vaginal area, penetrated her vagina with his penis, kissed her and placed his tongue in her mouth, fondled her breasts, undressed her, and held her hands over her head with one hand. He made no overt threats but implied something would happen to Yolanda and said "[n]o one would believe you." Maribel said Otilio tried to molest the other girls and she believed they were fondled but not penetrated. After she and her sisters were returned home, she moved in with her boyfriend.
In the interview, Maribel expressed concern for Lucero. Lucero told her she was afraid to shower because Otilio showered with her. Lucero said Otilio lay on top of her and demonstrated how he did this. Maribel described the movement as sexual, "like when someone had sex." She said she asked Lucero if she had seen her mother doing that and Lucero said, "No, papi." Maribel reported that when Lucero went to the bathroom she complained of "owies." Maribel said Yolanda mistrusted Otilio and told Maribel to take Lucero; Maribel tried to have Lucero stay with her for days. Maribel did not want to hurt Yolanda but realized Lucero would be removed from Yolanda's home and wanted Lucero to live with her when she turned 18. Maribel reported Otilio told "sick and perverted jokes" and that while he molested her, he boasted other girls her age wanted him. She said her paternal grandfather, Yolanda's father-in-law, had molested Yolanda, and Yolanda tried to protect the girls from that side of the family.
Social worker Rodriguez also interviewed Yolanda on July 15. Yolanda said Otilio did not drink and had not molested Lucero, who was with a baby-sitter most of the time while she was at work. She denied allowing Lucero to see any sexual behavior.
The petition and detention
On July 18, 1997, a new petition was filed concerning Lucero, alleging that between January 1 and July 15, Otilio sexually abused her, including occasionally touching her vaginal area, causing minor pain, and lying on top of her and moving as if having sexual intercourse with her (§ 300, subd. (d)); and between September 1, 1993, and November 30, 1994, he sexually abused Maribel, including touching her vaginal area; penetrating her vagina with his penis; kissing her with his tongue in her mouth; and fondling her breasts, putting Lucero at substantial risk of sexual abuse (§ 300, subd. (j)). Lucero was detained out of her home.
The August 13, 1997 additional information report
On August 6, 1997, Yolanda's therapist told social worker Ysela Galvan-Dupree that Yolanda did not believe she had failed to protect Lucero or that Otilio would abuse Lucero. The therapist emphasized the need for Yolanda to complete a sexual abuse program.
The September 22, 1997 social study
According to Galvan-Dupree, Lucero had a clear vocabulary and was bright and talkative, clear in Spanish, and learning to speak English. The social study repeated the statements and gestures regarding Otilio 's touching that Lucero made to social worker Rodriguez on July 15. It also noted Lucero reported her father disciplined her by hitting her with a belt; Yolanda did nothing. Yolanda said she would attend only one cycle of a sexual abuse program, although the program recommended she attend for at least a year; said no one would keep her away from Otilio; and denied he had molested any of her daughters.
The September 22, 1997 additional information report
A July 22, 1997, letter from foster mother Alice S. stated that on July 19, the day after she picked up Lucero at Polinsky Children's Center, Lucero repeated, "Poppy owee." When Alice said, "Donde owee?", Lucero placed her hand over her vaginal area and said, "No aqui," then, bending over slightly, indicated her rectal area with her fingers and said, "Aqui owee. Poppy owee."
The November 17, 1997 additional information report
An October 13 police report summarized officer Theresa Ramirez's October 9 videotaped interview of Lucero in Spanish. According to Ramirez, "Lucero was difficult to understand because of her limited verbal skills due to her age" and "It was difficult to establish if Lucero knew the difference between telling the truth and telling a lie." Lucero said she lived with her Papa Otilio and her Mami Yolanda. She referred to the vagina as "cola" and "pee pee" and the rectum as "cola" and "caca." While she had difficulty identifying body parts related to bad touching, she made spontaneous statements indicating her "Dad" and "Papa" had touched her in a bad way. She said, "'mi papa es malo' (my Dad is bad). 'It what my Dad did'." When asked if someone had touched her "cola," Lucero replied, "Mi Papa" and pointed to her genital area, front and back. She referred to an anatomically correct male doll as her "Papa" and indicated through actions and statements that her "Papa" had touched her vaginal and rectal areas. She indicated, though not very clearly, that her "Papa" had touched her with his penis. She could not say how the touching had occurred, although she said she had seen her father's penis. Ramirez concluded "some inappropriate sexual acts may have occurred between Lucero and . . . Otilio [but] because of her age and verbal skills there were inconsistent statements and it appears that this may be a difficult case for prosecution."
The first November 26, 1997 additional information report
On September 22, Yolanda completed the first cycle of her sexual abuse program but still denied the molestation. On October 30, Galvan-Dupree saw what appeared to be Otilio's personal items in Yolanda's room. In November, maternal aunt Aurora R. said she believed Otilio still lived with Yolanda because Aurora and other family members had seen him in the home. Aurora said she had tried to talk to Yolanda about the seriousness of the situation but Yolanda seemed "unwilling to believe anything anyone says."
The second November 26, 1997 additional information report
A November 13 medical examination of Lucero revealed an anal fissure, which could be caused by constipation or abuse. According to the medical report, there were no behavioral or emotional symptoms. The physician concluded the exam was normal and neither supported nor negated a history of sexual abuse.
The jurisdictional hearing and motions
The hearing began on January 14, 1998, and concluded on January 21. Otilio and Yolanda made motions in limine to exclude Lucero's statements, including those to social workers, police officers, and family members. Counsel stipulated Lucero was incompetent to testify and the court concluded "it appears to be the case." The court ruled Lucero's statements were inadmissible under In re Cindy L. (1997) 17 Cal.4th 15 because they were uncorroborated but admissible under section 355, subdivisions (c)(1)(B) and (C).
Maribel's testimony
Crying, 17-year-old Maribel testified that when she was in the sixth grade, Otilio came to her home one morning when she had stayed home from school and Yolanda was at work. Maribel said she had told social worker Rodriguez the truth, but when asked what happened between her and Otilio that day, Maribel testified she did not want to talk about it and asked to leave. The court recessed for lunch, admonishing the witnesses not to discuss the case among themselves.
When court reconvened, Maribel testified she had gone to lunch with Yolanda. Maribel said she did not remember if Otilio had touched her and she had lied when she had told social worker Rodriguez otherwise. Maribel testified that not everything she had told Rodriguez was a lie, then testified to the contrary. When reminded she had said before lunch that she had told Rodriguez the truth, Maribel responded, "I was very confused." She testified she had truthfully told Rodriguez that Otilio had told sick jokes.
Maribel testified she told social worker Galvan-Dupree that something had happened between her and Otilio "[e]very time that she asked me about it" although "nothing happened." After Maribel and her sisters returned home following their 1994 detention, Yolanda and Otilio took her in their bedroom and talked to her until she recanted to them; she then recanted to a social worker although something in fact had happened between her and Otilio.
On cross-examination, Maribel testified she wanted Lucero returned to Yolanda; Galvan-Dupree had said that this would require that Otilio be out of the home and Maribel testify that he had had sexual intercourse with her. Maribel said she had reported that Otilio had molested her to get Lucero home, but when asked whether her motivation was to secure Lucero's return or to tell the truth, Maribel was unsure. Maribel preferred that Yolanda be alone or with Maribel's real father rather than with Otilio.
On redirect examination, Maribel testified she had told her sister-in-law, Esmeralda T., that Otilio had molested her, Esmeralda had told the principal, the principal had asked Maribel, and Maribel had said yes. This occurred before Maribel had any contact with a social worker.
Maribel further testified that around the time two-and-one-half-year-old Lucero was detained, she told Maribel, "owie." When Maribel asked what hurt, Lucero pointed to her vaginal area. This happened more than twice. Maribel checked for a rash and but found none. Lucero told Maribel how she got hurt; Maribel did not remember if she said she was afraid of her papi or that he lay on her. Lucero said she did not like to shower with her dad. Maribel told Yolanda what Lucero had said. When social worker Rodriguez told Maribel that Lucero was going to be removed from Yolanda, Maribel responded she did not want to hurt Yolanda.
Testimony of social worker Rodriguez
When Rodriguez interviewed Lucero in July 1997, Lucero was nearly three years old, talkative, friendly, outgoing, and showing no distress. During the 20-minute interview, Rodriguez spoke in Spanish and Lucero's speech was clear. Lucero correctly identified body parts on a stick figure Rodriguez drew. Lucero called the vaginal area and buttocks "cola." When Rodriguez asked, "Has anyone every touched you here?", Lucero said, "Yes. My daddy," using the word "popi" for daddy. When Rodriguez asked, "How?", Lucero placed her index finger at the bottom of the leg of the shorts on the stick figure and moved her finger upward. When Rodriguez touched her own buttocks to ask if he had touched her buttocks, Lucero said no. When Rodriguez asked, "What happens when he touches you?" Lucero said, "Made owies." Rodriguez asked if it made owies when Lucero went to the bathroom; Lucero said no. Lucero said that when she got in trouble, her dad hit her with a belt on her buttocks.
After this, Rodriguez interviewed Maribel, who expressed concern that what had happened to her might be happening to Lucero. At this point, Rodriguez had not told Maribel what Lucero had told her. Maribel said that after being taken into custody following her disclosure Otilio had molested her, she recanted when she was returned home because Yolanda had placed her in a room with Otilio and repeated, "Tell me the truth." Maribel told Yolanda, "Yeah, just believe him." Maribel told Rodriguez Otilio did "everything" to her: touched her, kissed her, penetrated her vaginal area with his penis, and held her hands over her head. He did not threaten her but implied he would hurt Yolanda. When Rodriguez asked why she thought Otilio was bothering Lucero, Maribel said because Lucero said it hurt when she went to the bathroom and said Otilio lay on top of her and made movements like sex. According to Maribel, Lucero stayed with her for days, with Yolanda's encouragement, and Lucero told Otilio she did not want to go home. After Rodriguez raised the subject, Maribel said she wanted Lucero to live with her when she turned 18. Maribel said Otilio made sick, sexual jokes and boasted about molesting other girls. Maribel reported Yolanda's father-in-law had molested Yolanda. During the interview, Maribel was tearful and said Yolanda was going to be hurt.
On cross-examination, Rodriguez testified she had attended between six and ten training sessions on interviewing children, lasting between four hours and two days. She did not test Lucero to determine whether she knew the difference between truth and falsity or ask her to distinguish between Otilio's wiping her when she went to the bathroom and touching her for another reason.
Testimony of social worker Galvan-Dupree
The week before the jurisdictional hearing, Maribel told Galvan-Dupree she hated Otilio because of his jokes, in Yolanda's presence, that he would have Maribel and she would have his baby. Maribel also said she hated him because one day when she stayed home from school, he hugged her, held her wrists with one hand, touched her private parts, touched her with his penis, and had sex with her against her will. When she told him no and said she would tell Yolanda, he repeated, "Nobody's going to believe you," mentioned Yolanda, and said something would happen. Maribel cried as she described this incident. She asked if she had to go to court; Galvan-Dupree said she did if she were served with a subpoena. Maribel asked if she had to testify in front of Yolanda and Otilio; Galvan-Dupree said they would be there.
Testimony of psychologist Ricardo Weinstein
Weinstein was experienced in interviewing children regarding sexual abuse. Information from two-and-one-half-year-olds lacked dependability; children younger than four had difficulty expressing their experiences verbally. Information had to be elicited with specific questions, but this led to doubt whether the child was responding to the statement inherent in the question or actually describing a personal experience.
After viewing a videotaped interview of Lucero, Weinstein concluded she was not able to differentiate between truth and falsity, did not comprehend the concept of good and bad touching, and possessed insufficient verbal skills to express her experiences. The videotape showed contamination (that is, the description of an experience the child then owned) regarding pain and names of body parts.
Testimony of foster mother Alice S.
In early January 1998, Alice observed Lucero lying on her back, with her hands inside her clothing, rubbing her genital area. Alice asked, "Who showed you that?" and Lucero said, "Daddy did it."
Testimony of minor's counsel's investigator Ruby Shamsky
Shamsky interviewed Maribel on October 10, 1997. At first Maribel denied Otilio had touched her sexually; after Shamsky asked her to be totally honest, Maribel said he had "molested and raped" her: he pulled down her pants, pulled up her arms, and got on top of her on the couch, saying "you're mine" and "if you tell, something will happen to your mother." When the girls were returned home after being detained, Yolanda put them in a room with Otilio and made Maribel say it never happened. Maribel said this because Alma and Nericela missed Yolanda and Maribel felt it was unfair to keep them away their mother. Maribel did not tell Yolanda about the rape; she told her Otilio had touched her but Yolanda did not take it seriously. Eventually Maribel told Esmeralda. Beginning when Lucero was two, Maribel asked her regularly whether Otilio had touched her. Maribel feared she might have taught Lucero to say she was touched.
Testimony of psychologist Constance Dolenberg
Dolenberg, a child abuse specialist, testified it was extremely common for children to recant, due to their attempts to protect themselves and their families' disbelief of their allegations. It was also common for children to re-recant and re-disclose. A recantation did not mean an allegation was untrue.
The molestation risk to a man's three-year-old biological child increased greatly if he had molested an eleven- or twelve-year-old nonbiological female child in the household, and increased as the three-year-old aged. The pathology of a man who molested his girlfriend's 14-year-old daughter was related to the pathology of a man who molested his own two-and-one-half-year-old daughter. These pathologies tended to occur in the same individuals.
Three-year-olds were not inherently unreliable in reporting events; they merely gave less information. Dolenberg watched a videotaped interview of Lucero and saw one clear disclosure of touching of private parts. Lucero touched herself in response to a question; research showed this is how molestation victims respond; children who made false allegations merely nod and rarely elaborate.
Directive questions (e.g., "did he touch you here?") were asked in the videotape; such questions were required with three-year-olds. Suggestive questions (e.g., "he touched you here, didn't he?") were not asked. A suggestive question asked every day for 11 months would yield an affirmative answer if the questioner appeared to want one, but would be likely to yield a negative response in another setting. A father's help with a child's hygiene would not cause an affirmative answer.
DISPOSITIONAL EVIDENCE AND PROCEEDINGS On November 26, social worker Galvan-Dupree asked Yolanda why she still did not believe her children. Yolanda responded that if Otilio were found guilty, then she would believe them. On February 5, 1998, Galvan-Dupree reported that Otilio had not provided his telephone number and a new address; she was concerned he still lived with Yolanda. Yolanda had missed several therapy sessions and said she might not make it to her sexual abuse program. On February 27, the therapist wrote that Yolanda still doubted Otilio had molested Lucero, but would be able to protect Lucero from further abuse "once [she] ha[d] sufficient time to comprehend the significance of the Court's findings." The therapist believed Yolanda would comply with court orders.
At the March 16 dispositional hearing, Yolanda submitted on the September 22, 1997, social study and an unspecified amendment to its recommendation that had been discussed in chambers. Otilio concurred with the recommendation as amended. The court placed Lucero in foster care; gave the San Diego County Health and Human Services Agency (the Agency) discretion to detain her with Yolanda if a maternal relative lived in the home, upon concurrence of minor's counsel; granted Yolanda and Otilio supervised visits; and gave the Agency discretion to allow Yolanda unsupervised visits with concurrence of minor's counsel.
DISCUSSION Otilio and Yolanda contend the court erred by admitting Lucero's hearsay statements and the jurisdictional and dispositional orders are unsupported by substantial evidence.
THE JURISDICTIONAL HEARING In re Cindy L. (The Child Dependency Hearsay Exception)
The child dependency exception to the hearsay rule permits the admission in a dependency proceeding of an out-of-court statement of a child alleged to be a victim of sexual abuse under the following conditions. First, the time, content, and circumstances of the statement furnish adequate indicia of reliability, determined by such factors as (a) spontaneity and consistent repetition; (b) the declarant's mental state; (c) his or her precocious knowledge of sexual matters and use of terminology unexpected of a similarly-aged child; and (d) absence of a motive to fabricate. Second, the child is available for cross-examination or there is evidence of sexual abuse corroborating the child's statement. Third, interested parties are given sufficient notice of the public agency's intent to introduce the statement so they can contest it. (In re Cindy L., supra, 17 Cal.4th at pp. 18, 29-30, 34-35.) The child dependency exception may apply even when the court finds the child is not competent to testify because he or she is unable to differentiate between truth and falsehood or understand the duty to speak truthfully. (Id. at pp. 18, 34-35.) Competency is "only one circumstance to be considered in determining whether the child's statement is reliable." (Id. at p. 18.)
The Cindy L. court characterized corroborative evidence as "'"evidence . . . which would support a logical and reasonable inference" that the act of abuse described in the hearsay statement occurred.'" (In re Cindy L., supra, 17 Cal.4th at p. 35, quoting State v. Swan (1990) 114 Wn.2d 613, fn. omitted.) The corroboration requirement, along with the indicia of reliability outlined above, helps safeguard against the possibility of fabrication by the child. (In re Cindy L., supra, 17 Cal.4th at p. 34.) In Cindy L., the reviewing court concluded corroboration was furnished by a medical examination revealing a fact consistent with sexual abuse. (Id. at p. 35.) Here, the juvenile court determined Lucero's statements were uncorroborated. We need not address the propriety of this determination as we conclude the juvenile court properly admitted Lucero's hearsay statements contained in the social worker's reports under section 355, subdivision (c)(1)(B).
Section 355 3 (The Social Study Hearsay Exception)
Section 355 provides:
"(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 subdivision[] (c) . . . .
"(1) For the purposes of this section, 'social study' means any written report . . . by the county probation or welfare department . . . in a dependency proceeding . . . .
"(2) The preparer of the social study shall be made available for cross-examination upon a timely request by any party. . . .
". . . . . . . . . . . . . . . . . . . . . . . . "
"(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:
". . . . . . . . . . . . . . . . . . . . . . . . "
"(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."
While the juvenile court's ruling is somewhat unclear, it apparently admitted all Lucero's statements, both those in the social worker's reports and otherwise, under section 355, subdivision (c)(1)(B). It is evident from a reading of section 355, subdivision (b) that subdivision (c)(1)(B) applies only to hearsay statements in the social worker's reports. We conclude below, however, that Lucero's statements not included in the reports were unnecessary to support the jurisdictional finding.
Yolanda and Otilio argue section 355, subdivision (a) requires evidence admitted under the social study exception be "legally admissible" and that the hearsay declarant be competent and available for cross-examination. Their argument is premised on the continued applicability of the limitations on this exception outlined in In re Malinda S. (1990) 51 Cal.3d 368, 381-382 and In re Basilio T. (1992) 4 Cal.App.4th 155, 166, which both preceded the 1996 amendments to section 355.
In In re Cindy L., supra, 17 Cal.4th at page 22, footnote 3, the Supreme Court recognized: "Our holding in Malinda S. has been partially codified and partially modified by 1996 amendments to section 355.[ 4] Section 355, subdivision (a), now provides that for purposes of a jurisdictional hearing, '[a]ny legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within jurisdiction of the juvenile court is admissible and may be received in evidence.' (Stats. 1996, ch. 36, § 1.) Subdivision (b) then provides that a social study and hearsay evidence contained in it are admissible and constitute competent evidence on which a finding of jurisdiction pursuant to section 300 may be based, to the extent allowed by section 355, subdivisions (c) and (d)." In other references to the scope of section 355, the Cindy L. court noted that section "provide[s] . . . for greater admissibility of child hearsay statements that are included in social studies" (In re Cindy L., supra, 17 Cal.4th at p. 30) and "the Legislature has amended section 355 to broadly authorize reliance on any hearsay contained in the social study by a child victim under the age of 12, as long as an objecting party does not prove that the statement was procured by means of fraud, deceit, or undue influence." (Id. at p. 28, fn. 6.) The Supreme Court left for another day the issue "whether the amended section 355 obviates the need for the child dependency exception." (Ibid.)
"[W]hen . . . the Legislature undertakes to amend a statute which has been the subject of judicial construction . . . it is presumed that the Legislature was fully cognizant of such construction, and when substantial changes are made in the statutory language it is usually inferred that the lawmakers intended to alter the law in those particulars affected by such changes." (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659.) In amending section 355, the Legislature made substantial changes altering the statute's construction in In re Malinda S., supra, 51 Cal.3d 368 and expressly provided for the admission of hearsay evidence in social studies subject to specified conditions. We therefore reject Yolanda and Otilio's attempt to circumscribe the admission of such evidence based on prior case law. Furthermore, the Legislature could have, had it so desired, required that a child be competent as a prerequisite for admission of his or her hearsay statements in the social study. That it failed to do so establishes its intent that there be no such requirement. (In re Chantal S. (1996) 13 Cal.4th 196, 206-207.)
Additionally, we note that section 355, subdivision (c)(1)(D) provides an exception allowing the admission of hearsay evidence, separate from the exception of subdivision (c)(1)(B), when "[t]he hearsay declarant is available for cross-examination." Were availability for cross-examination a requirement for admission of all evidence under section 355 as Yolanda and Otilio assert, subdivision (c)(1)(D) would be surplusage, a result to be avoided. (People v. Loeun (1997) 17 Cal.4th 1, 9.) Similarly, we note that section 355, subdivision (c)(1)(A) provides an exception allowing the admission of hearsay evidence where it "would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay." This further undermines Yolanda and Otilio's proposed construction of section 355, subdivision (a) as imposing a supplementary requirement of legal admissibility.
California Rules of Court, 5 rule 1450, which Yolanda and Otilio also cite, fails to impose an independent threshold requirement of legal admissibility. Rule 1450(b) states: "Except as provided in . . . subdivisions (c), (d), and (e), the admission and exclusion of evidence shall be in accordance with the Evidence Code as it applies to civil cases." Rule 1450(c) parallels the outline of section 355, subdivision (b), while rule 1450(d)(2) parallels section 355, subdivision (c)((1)(B).
Nor do we agree with Yolanda's intimation that this interpretation of section 355 deprives her of due process because it lacks the safeguards afforded by requirements of competency and cross-examination. Section 355, subdivision (d) states: "This section shall not be construed to limit the right of any party to the jurisdictional hearing to subpoena a witness whose statement is contained in the social study or to introduce admissible evidence relevant to the weight of the hearsay evidence or the credibility of the hearsay declarant." Yolanda and Otilio exercised their right to challenge the reliability of Lucero's hearsay statements by cross-examining the persons to whom she made them, including Maribel and social worker Rodriguez. Yolanda also cross-examined the foster mother and investigator Shamsky and successfully sought Shamsky's notes from her interview with Maribel. Otilio called Dr. Weinstein as an expert witness in an attempt to show Lucero's statements were unreliable and both parents cross-examined respondent's expert, Dr. Dolenberg, on this subject. They apparently did not subpoena Officer Ramirez who interviewed Lucero on videotape.
Finally, without merit is Otilio's claim that in cases of sexual abuse, only In re Cindy L., supra, 17 Cal.4th 15, and not section 355, applies to statements in social studies. These two exceptions to the hearsay rule have differing requirements; one, the other, or both may apply in any given case, and there is no language in section 355 prohibiting its application in cases of sexual abuse. Moreover, section 355, subdivision (c)(1)(B) is not a broad authorization for the admission of children's hearsay statements through social studies. Rather, if there is an objection, it allows the admission of such statements in the limited case where the child who is the subject of the dependency proceeding is under 12 years old and there is no showing of unreliability due to fraud, deceit, or undue influence.
Yolanda and Otilio raised timely objections in the court below to the admission of Lucero's hearsay statements in the social worker's reports. Clearly, Lucero was under the age of 12 years and the subject of the jurisdictional hearing. The juvenile court did not err by concluding Yolanda and Otilio had failed to establish the statements were the product of fraud, deceit, or undue influence and hence unreliable. It did not abuse its discretion in admitting Lucero's hearsay statements contained in the social worker's reports pursuant to section 355, subdivision (c)(1)(B). (Cf. In re Cindy L., supra, 17 Cal.4th at p. 35.) There was no due process violation.
Sufficiency of evidence
Yolanda maintains because there was no evidence other than Lucero's hearsay statements to support the section 300, subdivision (d) finding, the jurisdictional order must be reversed. Alternatively, she contends that even if the statements were admissible, they did not amount to substantial evidence supporting the finding because they were neither reliable nor corroborated and Lucero was incompetent. Otilio argues the facts supporting the jurisdictional finding under section 300, subdivision (d) were unreliable because Lucero was incompetent and her statements uncorroborated and Maribel lied, either when she accused Otilio of sexually abusing her or when she recanted. He further asserts there was no evidence he sexually abused Lucero as defined in section 300, subdivision (d) and insufficient evidence to show a substantial risk of such future sexual abuse.
"Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300." (§ 355, subd. (a).) Section 300, subdivision (d) provides for a dependency when "[t]he minor has been sexually abused, or there is a substantial risk that the minor will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent . . . , or the parent . . . has failed to adequately protect the minor from sexual abuse when the parent . . . knew or reasonably should have known that the minor was in danger of sexual abuse." Penal Code section 11165.1 broadly defines sexual abuse to include sexual assault, which in turn comprises various specified Penal Code violations as well as a nonexhaustive list of sexual conduct. 6
As discussed above, Lucero's hearsay statements were properly admitted. We need not revisit the matters of reliability and competency, nor need statements be corroborated to constitute substantial evidence. Furthermore, the juvenile court determined Maribel's recantations were untrue. We defer to this evaluation of her credibility. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)
The record contains substantial evidence supporting the section 300, subdivision (d) finding. Through words and gestures, Lucero told social worker Rodriguez that Otilio touched her vaginal area, causing pain, and she touched his buttocks. In the same way, Lucero told the foster mother that Otilio touched her rectal area, causing pain; told Officer Ramirez that Otilio touched her vaginal and rectal areas; and told Maribel that Otilio lay on top of her and moved in a sexual manner. Lucero also related to Maribel that Otilio showered with her and it hurt when she went to the bathroom. Maribel said Otilio had molested her. Dr. Dolenberg testified regarding the increased risk posed to the child of a perpetrator who had molested an older child not his own, Lucero's videotaped disclosure of molestation, and the reliability of statements by young children. Yolanda denied Otilio had molested her daughters and refused to stay away from him yet apparently mistrusted him.
In view of our conclusion there is substantial evidence supporting the true finding Otilio sexually abused Lucero and Yolanda failed to protect although she knew or reasonably should have known of the risk (§ 300, subd. (d)), we need not address the sufficiency of the evidence supporting the finding Otilio sexually abused Maribel (§ 300, subd. (j)). 7
THE DISPOSITIONAL HEARING Otilio and Yolanda base their challenge to the dispositional order on the asserted infirmity of the jurisdictional order. As we have determined the jurisdictional order was proper, we reject this argument.
DISPOSITION The orders are affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P.J.
McDONALD, J.
1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 The social worker has no apparent relationship to Detective Rodriguez mentioned above. Unless otherwise specified, all references to "Rodriguez" are to the social worker.
3 As noted above, the court also concluded Lucero's hearsay statements were admissible under section 355, subdivision (c)(1)(C). Subdivision (c)(1)(C), pertaining only to hearsay declarants who are certain peace officers, health practitioners, social workers, or teachers, is inapplicable here.
4 Before the 1996 amendments, section 355 did not expressly speak to the admissibility of social studies. Section 355 read in its entirety:
"At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him or her within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300. If the parent or guardian is not represented by counsel at the hearing, it shall be deemed that objections that could have been made to the evidence were made."
5 All rule references are to the California Rules of Court.
6 Penal Code section 11165.1 states in pertinent part:
"As used in this article, 'sexual abuse' means sexual assault . . . as defined by the following:
"(a) 'Sexual assault' means conduct in violation of one or more of the following [Penal Code] sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (penetration of a genital or anal opening by a foreign object), or 647.6 (child molestation).
"(b) Conduct described as 'sexual assault' includes, but is not limited to, all of the following:
"(1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.
"(2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
"(3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.
"(4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.
"(5) The intentional masturbation of the perpetrator's genitals in the presence of a child."
7 Yolanda maintains respondent should be estopped from arguing substantial evidence supports the jurisdictional findings because it moved to dismiss the 1994 petition for insufficient evidence and the court, knowing she and Otilio had the same address, dismissed the petition and returned the girls to her care. We need not respond point by point to Yolanda's detailed and farfetched argument; suffice it to say that respondent's inability in 1995 to prove Otilio molested Maribel, Nericela, and Alma did not grant him permission to molest them or Lucero, nor did it absolve Yolanda of her duty to protect.
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