Los Angeles County Department of Children & Family v. Jose C.

FLIER, J., Concurring and Dissenting.

—I concur in the majority’s conclusion that jurisdiction over Kimberly A. was proper, but I write separately *1333because I conclude Kimberly was not competent to testify. I dissent from part IV. of the opinion in which the majority concludes that the juvenile court properly assumed jurisdiction over Jose C., Jr., Eric C., and Yesenia C. Jose C., Sr. (father), does not challenge the juvenile court’s jurisdiction over Jacqueline A., and I agree with the majority that the record contains no substantial evidence to support jurisdiction over Ana C.

1. Kimberly

Father first argues that Kimberly was not competent to testify. Father forfeited his challenge to Kimberly’s competency because his counsel did not object to her testimony. (In re S.C. (2006) 138 Cal.App.4th 396, 420 [41 Cal.Rptr.3d 453].) Father next argues that his counsel rendered ineffective assistance by failing to object to Kimberly’s testimony. To show ineffective assistance, father must show not only that counsel’s performance was deficient but also that he was prejudiced. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98 [105 Cal.Rptr.2d 705]; In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540 [78 Cal.Rptr.3d 495].)

Insofar as he argues that Kimberly should not have been permitted to testify, father’s argument has merit. Individuals “[i]ncapable of understanding the duty of a witness to tell the truth” (Evid. Code, § 701, subd. (a)(2)) are incompetent to testify (People v. Anderson (2001) 25 Cal.4th 543, 572-573 [106 Cal.Rptr.2d 575, 22 P.3d 347]). At the hearing, Kimberly testified that she did not “know what [it] means ... to tell the truth.” Kimberly also testified that she did not “know it’s wrong to tell a lie.” Kimberly therefore was not competent to testify.1

However, father fails to show that allowing Kimberly to testify constituted deficient representation. If anything, Kimberly’s in-court testimony assisted father. Kimberly remembered almost nothing. Importantly, Kimberly did not remember what father did when he touched her. Only when asked the leading question whether she had told “one of the social workers or the police that he put his penis in your mouth,” Kimberly responded “yes.” But that testimony directly contradicted Kimberly’s prior statements in which she unequivocally maintained that she did not allow father to put his penis in her mouth. Moreover, the petition did not include allegations that father put his penis in Kimberly’s mouth. Therefore, Kimberly’s in-court testimony about such conduct did not support the specific allegations in the petition. Father’s counsel may have based her tactical decision to refrain from objecting to Kimberly’s competency in order to argue that Kimberly’s testimony undermined her credibility. That was counsel’s principal argument.

*1334Father also fails to show that he was prejudiced by Kimberly’s testimony. Instead, he appears to assume incorrectly that if Kimberly had been found incompetent to testify her out-of-court statements also would have been excluded. But, in this context, the out-of-court statements of a child found incompetent to testify are admissible if they are reliable. (Welf. & Inst. Code, § 355, subd. (b); In re Lucero L. (2000) 22 Cal.4th 1227, 1231 [96 Cal.Rptr.2d 56, 998 P.2d 1019].) Stated otherwise, Kimberly’s out-of-court statements would have been excluded only if they were unreliable and uncorroborated. (See Lucero L., at p. 1252 (cone. opn. of Chin, J.).)

Although father’s counsel did not specifically argue that Kimberly’s out-of-court statements were unreliable, the gist of counsel’s argument was that Kimberly was not a credible witness. The juvenile court necessarily rejected this argument when it sustained the petition.2 Because father does not show Kimberly’s out-of-court statements—the only statements that supported jurisdiction—should have been excluded, he fails to show prejudice from his counsel’s alleged deficient performance in not challenging Kimberly’s competency. In short, father fails to show he received ineffective assistance of counsel even though his counsel did not object to Kimberly’s competency. (In re Dennis H., supra, 88 Cal.App.4th at p. 98; In re Kristen B., supra, 163 Cal.App.4th at p. 1540.)

2. Jose, Eric, Yesenia and Ana

No evidence supported jurisdiction over Jose, Eric, Yesenia or Ana. “Substantial evidence does not mean any evidence; it must be 4 44 ‘substantial’ proof of the essentials which the law requires.” ’ [Citation.]” (In re B.T. (2011) 193 Cal.App.4th 685, 691 [122 Cal.Rptr.3d 651], italics omitted (B.T.).)

A. Jose and Eric

The court sustained allegations that Jose and Eric were dependents of the juvenile court under Welfare and Institutions Code section 300, subdivi*1335sions (b) and (d).3 Those allegations provided that father sexually abused Kimberly—an “unrelated child”—and that “[s]uch sexual abuse of the unrelated child by the father endangers the children’s physical and emotional health and safety, and places the children at risk of physical and emotional harm, damage, danger and sexual abuse.” As I explain, section 300, subdivision (b) is inapplicable, and no substantial evidence supported the juvenile court’s finding under subdivision (d).

i. Section 300, Subdivision (b)

Section 300, subdivision (b) provides that a child is a dependent of the juvenile court if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.” To support jurisdiction under this section, there must be evidence that “ ‘at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm ....’” (B.T., supra, 193 Cal.App.4th at p. 692.)

There was no allegation that father (or any parent) failed to supervise or protect Jose or Eric. Therefore, it was error to take jurisdiction of Eric and Jose under section 300, subdivision (b). Respondent’s argument that mother failed to protect Jose and Eric is not supported by any evidence and is irrelevant as there was no such allegation in the petition.

ii. Section 300, Subdivision (d)

Welfare and Institutions Code section 300, subdivision (d) provides that a child is a dependent of the juvenile court if “[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.” Penal Code section 11165.1 “refers to specific sex acts *1336committed by the perpetrator on a victim, including child molestation . . . and does not include in its enumerated offenses the collateral damage on a child that might result from the family’s or child’s reaction to a sexual assault on the child’s sibling.” (In re Maria R. (2010) 185 Cal.App.4th 48, 67-68 [109 Cal.Rptr.3d 882] (Maria R.).)

There is a split of authority whether a male child is at risk of sexual abuse when his female siblings have been sexually abused. In re Karen R. (2001) 95 Cal.App.4th 84, 90-91 [115 Cal.Rptr.2d 18] (Karen R.), In re P.A. (2006) 144 Cal.App.4th 1339 [51 Cal.Rptr.3d 448] (P.A.) and In re Andy G. (2010) 183 Cal.App.4th 1405 [107 Cal.Rptr.3d 923] (Andy G.) concluded that a male child was at risk when his female siblings had been abused. Karen R. explained that “a father who has committed two incidents of forcible incestuous rape of his minor daughter reasonably can be said to be so sexually aberrant that both male and female siblings of the victim are at substantial risk of sexual abuse within the meaning of section 300, subdivision (d), if left in the home.” (Karen R., supra, at pp. 90-91.) Maria R. rejected these holdings, concluding instead that there was no evidence “that a perpetrator of sexual abuse of a female child is in fact likely to sexually abuse a male child.” (Maria R., supra, 185 Cal.App.4th at p. 68.) Similarly, in In re Rubisela E. (2000) 85 Cal.App.4th 177, 199 [101 Cal.Rptr.2d 760] (Rubisela E.), the court held that the father’s abuse of his daughter did not constitute substantial evidence his sons were at risk of sexual abuse.

Even assuming a male child is at risk if his female siblings had been abused, here Kimberly was not a sibling of Jose and Eric. According to the Los Angeles County Department of Children and Family Services’s allegations, she was an “unrelated child.” Karen R., P.A. and Andy G. are therefore inapposite. There may be circumstances when a parent’s conduct with an unrelated child shows that the related child is also threatened. (See, e.g., In re Y.G. (2009) 175 Cal.App.4th 109 [95 Cal.Rptr.3d 532].) However, here there was no evidence supporting the inference that Jose and Eric were at risk of abuse similar to that which father inflicted on Kimberly. (See B.T., supra, 193 Cal.App.4th at p. 693 [threatened harm must be to child who is subject to the jurisdiction of the juvenile court, not someone else].)

No evidence supported the finding that Jose and Eric were at risk of sexual abuse. There was no evidence that father had an interest in engaging in sexual activity with a male child or in engaging in an incestuous relationship. The only evidence in the record showed just the opposite. Jose told social workers that he loved his dad and that his dad never inappropriately touched him. Eric also stated that his dad never touched him. Both Jose and Eric wanted to live with father. No evidence suggested that Jose and Eric were protecting father or being untruthful in their statements and no evidence was presented that *1337father had or would harm them in any manner. Speculation that a father may sexually abuse a male child is insufficient to support jurisdiction. Instead, there must be evidence such that the court reasonably could find the child to be a dependent of the court. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198-199 [23 Cal.Rptr.2d 482].)

B. Yesenia

Yesenia was two years old when she was detained. Because of her age, she was not interviewed but was observed to be in good health with no indications of abuse. The court assumed jurisdiction over her pursuant to section 300, subdivisions (b), (d), and (j).4 The allegations under each statute were that father had sexually abused Kimberly; mother had failed to protect Kimberly; and that Yesenia was at risk of physical harm, emotional harm, and sexual abuse.

Evidence that father abused Kimberly when she was 11 years old does not support the finding that Yesenia—his own child and a toddler 11 years younger than Kimberly—was at risk of abuse. Father’s only other biological daughter, Ana, made clear that she was never abused and the majority apparently accepted her statements when it reversed jurisdiction over her.5 Those same statements compel the inference that Yesenia—father’s only other biological daughter—also was not at risk of abuse in this case in which no contrary evidence exists. If father had a proclivity for sexually abusing his daughters, there would have been some evidence that he had sexually abused Ana. (See B.T., supra, 193 Cal.App.4th at pp. 694-695.) There was no such evidence and speculation that he would abuse Yesenia was insufficient to support jurisdiction. (Maria R., supra, 185 Cal.App.4th at p. 68.) Additionally, Yesenia was 11 years younger than Kimberly, which distinguishes this case from those holding that a sibling close in age was at risk of abuse. (See, e.g., Rubisela E., supra, 85 Cal.App.4th at p. 197; see also P.A., supra, 144 Cal.App.4th at p. 1347.)

C. Ana

I agree with the majority that no substantial evidence supports jurisdiction over Ana. Ana was never sexually abused by father and was not living in a *1338home with father when father abused Kimberly. There was no evidence that Ana was at risk of sexual abuse and no other basis for assuming jurisdiction over her.

Jacqueline, who also said she did not know the difference between the truth and a lie, was not permitted to testify.

It cannot reasonably be disputed that Kimberly’s out-of-court statements, if credited, supported jurisdiction over her. Kimberly’s out-of-court statements included the following. On June 9, 2010, Kimberly told police that father had fondled her breasts and touched her vagina. Father “became aroused and put his ‘private’ in her ‘butt’ ” for approximately two minutes. Kimberly said she felt a lot of pain. Kimberly also told a social worker that father touched her breasts and her vagina. Kimberly told the social worker that father “put his middle part on the front and on the back.” Kimberly said neither she nor father was wearing clothes and that father had forcibly removed her clothing. Kimberly also said that her mom saw father kiss her. Kimberly told the social worker father asked her to lick his middle part, but she refused. Kimberly stated that father licked her breasts.'

Undesignated statutory citations are to the Welfare and Institutions Code unless otherwise stated.

Section 300, subdivision (j) provides that a child is a dependent of the juvenile court if “[t]he child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”

Ana told social workers, “He never molested me when I lived with him and I was little.”