Filed 5/21/18 In re K.K. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FCalifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re K.K. et al., Persons Coming Under the Juvenile Court Law.

TUOLUMNE COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

S.K.,

Defendant and Appellant.

F076397

(Super. Ct. Nos. JV7803, JV7805)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
S.K. (mother) appeals from the juvenile court’s jurisdiction and disposition orders declaring her twin daughters K.K. and A.K. (together referred to as the minors or the girls) as dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d) . We affirm the orders.
SUMMARY OF FACTS AND PROCEDURE
Background
Mother has four children: twins K.K. and A.K., born in 2002, and two adult children Corey K. and Aaron F. David K. (father) is the presumed father of the minors, who are the subjects of this appeal.
Late in the evening on May 29, 2017, police received a report that K.K. told a friend, via an electronic message, that she was going to run away and cut her wrists. A police officer responded and found K.K. and A.K. at home and unharmed. The officer asked mother and K.K. to step outside. When the officer told K.K. what had been reported, mother asked K.K. is she had said these things. K.K. turned away and put her head down. The officer then spoke to K.K. alone. She admitted making the statement and explained that she did not respond to his earlier question because her 20-year-old half brother, Aaron F., touches and kisses her private parts and makes her rub and kiss his penis. K.K. stated this had been going on for two years and she did not tell anyone because she was afraid Aaron F. would kill her. Sensing K.K. was uncomfortable talking near her mother, the officer took K.K. to the regional medical center under a 5150 hold.
At the medical center, K.K. stated the abuse began when Aaron F. was 18 and she was 12 years old. Aaron F. was drunk and came into her room while she was sleeping, took of her pants and bra, and began kissing her private parts. K.K. was afraid and laid still. According to K.K, Aaron F. is “always” drunk or high on marijuana. Over the next two years, Aaron F. would come into her room about three times a week while everyone was sleeping and continue to kiss and touch her private parts. When she told Aaron F. to stop, he would pin her hands above her head and threaten her. He told her not to tell anyone or he would kill her and everyone she loves. K.K. had not told her mother because she did not think she would believe her. K.K. was molested by her father’s friend when she was nine years old and her mother had not believed her then.
K.K. explained that she shared a bed with her sister A.K., but did not know if A.K. knew what was happening or if she was also a victim. The most recent abuse occurred the previous Sunday night/Monday morning when Aaron F. came into the room and K.K. woke up to him taking her pants off. He put his mouth on her and left.
The police officer returned to mother’s house and found mother, Aaron F., A.K., and a friend named David, pulling up in a vehicle. Aaron F. was separated from the group and questioned. He denied the allegations, but stated K.K. had been molested in the past and has been talking to an “older guy.” Based on K.K.’s statements and her fear of coming home, the officer arrested Aaron F.
Mother was interviewed and stated she did not believe Aaron F. had done anything to K.K. and had no idea why she would say these things or why she did not feel safe at home. The officer collected K.K.’s bedsheets and underwear.
A.K. was then interviewed and stated she had no idea anything was going on and did not believe Aaron F. would do this. K.K. had not confided in A.K., nor had A.K. woken up to find Aaron F. in their room.
A social worker from the Tuolumne County Department of Social Services (department) was contacted by the hospital, which indicated K.K. had been evaluated, was thought not to be suicidal, and was ready for discharge. The nurse at the hospital noted K.K. had expressed fear in returning home if Aaron F. was to bail out of jail. The nurse also noted that it was odd that mother had neither come to the hospital nor called to determine K.K.’s status.
The clinician who evaluated K.K. reported that she had a flat affect while speaking of the abuse, indicating she was telling the truth and that she had experienced trauma. He also stated she had discussed her previous molest at age nine and her fear of going home now.
Police placed K.K. in protective custody. When she was picked up by a social worker to be taken to a foster home, K.K. was shy and told the social worker she “just wanted it to be over.” K.K. also told the social worker she did not think mother liked her, that her mother drank and smoked marijuana often, and that mother and Aaron F. recently used mushrooms together, enough for K.K. to become frightened and walk to a nearby cemetery.
Later that day, the social worker met with mother, who insisted there was “no way” Aaron F. would sexually abuse K.K. Mother repeated that she did not believe K.K.’s allegations and that K.K. disliked Aaron F. because he made comments about her appearance and hygiene. According to mother, K.K. does not like to socialize with the family and spends time in her room. Mother believed K.K. was depressed and that her depression had gotten worse since moving to Tuolumne County four years ago. When asked about K.K.’s previous sexual abuse, mother stated K.K. had been molested by father’s best friend and it was investigated in Stockton, but mother could not remember the results of the investigation. Mother thought K.K. made up the allegations about Aaron F. to make him “go away.” Mother also thought K.K. needed help, but admitted she had not taken her to counseling, despite a referral she received for her several years ago.
Mother was asked about her prior dependency matter involving substance abuse. She stated she last used methamphetamine in 2006 and now only uses alcohol and marijuana. When confronted, she did acknowledge using mushrooms with Aaron F. two months earlier, because she “wanted to see what it was like before she died.”
When mother was asked how she would protect K.K. if she were to come home, mother stated she did not want to ask Aaron F. to leave because “he did not do anything wrong.” She further stated Aaron F. helps in paying the bills for the apartment and he would have no place else to go. Mother was also concerned that, if K.K. were back in the home, she would further lie about the family and she did not trust her at this time.
Mother asked the social worker to speak to her other son, Corey K., who was with her. Corey K. stated he did not believe K.K. and that she makes up stories and writes fiction in online forums. Corey K. read K.K.’s writing and she exaggerated about thinly veiled family references. Mother also stated she had K.K.’s phone, had read her text messages, and noted she lies. Mother reported that a number of K.K.’s stories are about how she thinks others feel negatively about her.
Detention Petition
A section 300 petition was filed May 31, 2017, alleging K.K. was at risk of harm, due to mother’s inability to protect K.K. from abuse (§ 300, subd. (b)) and allegations of molestation by Aaron F. (§ 300, subd. (d)).
K.K. was detained by the juvenile court on June 1, 2017. That same day, a petition was filed regarding A.K., with identical allegations, with the indication that the abuse occurred to K.K. A.K. was not detained.
Detention Hearing
At the detention hearing, when asked by the juvenile court why A.K. was not detained, the department indicated it was closely monitoring and assessing the home situation and prepared to detain A.K. if necessary. Father was present and requested he be assessed for placement of K.K. at his home in Stockton.
Jurisdiction Reports
The jurisdiction report prepared for the June 20, 2017, hearing described 24 previous referrals for the family in both San Joaquin and Stanislaus counties dating back to 2002. The referrals included domestic violence, physical abuse and substance abuse by the parents; allegations of sexual abuse of the children; and extremely poor hygiene of K.K. An April 2005 referral led to the arrest of mother and father for domestic violence, intoxication, and an unsanitary home with feces and urine. A child dependency case was filed. Beginning in 2012, multiple allegations were made of drug use by Aaron F., who was still a minor, with drugs being supplied by mother. Informal services were offered through a Differential Response Case Management Program. The home was again found to be unsanitary, filthy and roach infested. Referrals regarding K.K.’s poor hygiene and apparent depression began in late 2014 and continued through 2015, when mother was given a referral to Behavioral Health for K.K.
The report reiterated the events that lead to K.K.’s current detention. The social worker reported that K.K. had stated the sexual abuse began when they moved to Sonora and lived in their aunt’s home. K.K. recounted several different incidents and reported that the abuse was frequent. The social worker was not allowed to share more specific details of her interview with K.K. due to the ongoing criminal investigation.
On June 2, 2017, mother telephoned to report that Aaron F. had been released from jail. She continued to maintain that Aaron F. did not touch K.K.
On June 6, 2017, mother called to express concern with K.K. being placed with father, stating he was a heavy drinker and he worked at night, and might leave K.K. home alone.
On June 8, 2017, a home visit was conducted to assess father’s house. When the social worker expressed concern about A.K. remaining in mother’s home, father stated he had visited mother’s home the day before and was upset by the “household dynamic.” According to father, Aaron F. was attempting to portray a “fatherly” role, telling others in the home what to do. Father was frustrated that mother would not ask Aaron F. to leave, but that she seemed to like it that Aaron F. drank and smoked marijuana, as mother and Aaron F. smoked marijuana together in the home when K.K. and A.K. were there. Father did not appear under the influence at the time of the inspection, but a later toxicology report of a provided urine sample proved to be water.
Also on June 8, 2017, mother met with a different social worker. Mother insisted A.K. was safe in her home. Mother described K.K. as a “constant liar,” and thought she belonged in a mental hospital because “she makes things [up] in her head.” Mother blamed K.K. for their family situation and was “baffled” that the department believed K.K. When the social worker suggested Aaron F. leave the home, mother refused, again stating he helped pay the family bills. She stated Aaron F. had not been charged with a crime. Mother was open to the suggestion that A.K. stay with father if his home was deemed appropriate. She also agreed that, until then, A.K. would not be left alone while at mother’s.
The following day, mother was asked to come to the department to sign a new safety plan for A.K. When she arrived, she brought Aaron F. with her. Aaron F. interjected his opinion in the conversation. When asked if he could leave the home so that A.K. could stay, he declined. Mother stated Aaron F. should not be punished “when he did not do anything wrong.” Mother reluctantly agreed to allow A.K. to live with father during the remainder of the child welfare investigation. When mother was informed that a team meeting would be held the following Monday to discuss the case, Aaron F. stated he wished to be there too, but was told he was not permitted as K.K. would be there.
At the team meeting June 12, 2017, mother and K.K. attended in person; father and A.K. appeared by telephone. During the discussion, mother stated her home was safe and she wanted her girls returned, but she again declined to ask Aaron F. to leave because he had not done anything wrong. When father offered to have Aaron F. move in with him so the girls could stay with mother, mother again declined, stating Aaron F. helped with the bills and had been recently promoted at work. It was recommended that A.K. would stay with father and K.K. would join them.
That same date, K.K. completed a mental health self-assessment tool which triggered multiple “alerts” for attention problems, depression, psychosis, sleep problems and suicide ideations. K.K. expressed a desire for counseling. Regarding psychosis, K.K. reported having heard a woman’s voice on three occasions. The last time she heard the voice was on the day of her removal, when the voice told her to tell her boyfriend about the ongoing sexual abuse.
The report recommended that the section 300 petition be found true as to both girls and that K.K. be placed with father pending disposition.
An addendum jurisdiction report dated June 27, 2017, stated K.K. remained in foster care while A.K. was with father. Father reluctantly admitted he used methamphetamine after a new urine sample proved positive. After much evaluation and discussion, it was recommended that A.K. remain with father and K.K. be placed with him.
A second addendum report was filed for the August 11, 2017, contested jurisdiction hearing. It reported K.K. had been moved from foster care to father’s home June 28, 2017. Because of the move, the social worker was attempting to get services in place for K.K. in San Joaquin County.
The social worker visited the girls in father’s home on July 28, 2017. Both girls were clean and appropriately dressed; K.K. had a happy demeanor. A.K. stated she wished to return to Sonora for school and her friends, but it was discussed that it was still not safe as Aaron F. remained in mother’s home. Weekend visitation was arranged where father would drive the girls to Sonora where they could stay with his sister, who would oversee visitation with mother and prevent contact with Aaron F.
On August 1, 2017, mother met with the social worker and stated she wanted the girls back in her home and that Aaron F. was attempting to move out of the home. When mother was confronted with not being protective of the girls, she stated she was “stuck in the middle” and did not want to think the sexual abuse was happening. She was “hoping” Aaron F. would move out so the girls could come home. The social worker discussed counseling with mother and provided her with resources and a referral to Behavioral Health.
Jurisdiction Hearings
At the August 11, 2017, contested jurisdictional hearing, counsel for mother requested a continuance in order to receive the results of the DNA test requested on K.K.’s underwear and sheets. Following a lengthy discussion as to the relevance of the possible DNA, the continuance was granted and a hearing set for September 20, 2017, with a status conference on August 29, 2017, to address the availability of the evidence.
At the status conference August 29, 2017, county counsel provided “updated information from law enforcement” to each of the parties, which the juvenile court attached to the second addendum to the jurisdiction report.
At the September 20, 2017, contested jurisdiction hearing, the juvenile court stated it had read and considered the supplemental report from the Sonora Police Department, as well as the report from the California Department of Justice Central Valley Crime Lab.
The police report from the Sonora Police Department was prepared during the investigation of Aaron F. In the report, Sergeant Tim Wertz’s described an interview he and several others had with K.K. as follows:
K.K. did not like seeing people do drugs. Her mother had had a problem with drugs at one point and lost custody of the children due to this. Mostly marijuana was used in the home, but Aaron F. once used mushrooms and pulled a knife on K.K. Aaron F. often did drugs at the house with his friends. When they did so, they would get loud and yell and K.K. would stay in her room.
K.K. reported that she shared a double bed with A.K. in one bedroom; Aaron F. and his friend David shared another room; and Corey K. and mother slept in the living room. K.K. said she did not know Aaron F. very well at first because he lived with his father, but he was mean and cruel and yelled at her and hit her.
K.K. said that, when the family first moved to Sonora, they lived in an aunt’s house. They stayed in one room with a big bed with a bunk bed on the bottom. When everyone went to sleep, Aaron F. would get onto her bed and touch her in her private parts and make her do the same to him. The first time it happened, her sister and brother had gone to their friends’ houses and she was home alone with Aaron F. He came into the room when she was half asleep. When she asked what he wanted, he put his hand over her mouth and started touching her with his hand in her pants. He would not stop and said, if she screamed or made noise, he would kill her.
K.K. reported that the Saturday before the interview was the last time Aaron F. touched her. Her sister had fallen asleep in the living room. Aaron F. told her, “If you move you little bitch if you say anything I’ll kill you and anyone close to you.” He then put his hand in her pants and his fingers in her. The report detailed other instances of molestation, including Aaron F. forcing her to orally copulate him. K.K. expressed concern for her own safety if Aaron F. found out what she had said in the interview. A video recording of the interview was on a thumb drive, booked into evidence in the criminal case.
The police report included a physical evidence examination report which indicated no semen was found on either K.K.’s underpants or the flat sheet on her bed; the fitted sheet was not examined.
At the hearing September 20, 2017, the social worker testified regarding her qualifications as a certified forensic interviewer. She was not, however, found to be an expert in child sexual abuse. The social worker opined that, despite the lack of DNA evidence, she still believed K.K. was sexually molested because disclosing the abuse cost her a lot, as she was removed from her home and school; her very poor hygiene was a “red flag” for abuse, especially since K.K. was a “completely different child” when out of the home environment; and she had a “[v]ery shy, withdrawn” affect.
The social worker was asked whether, if the abuse never actually occurred, she was still concerned with K.K.’s safety based on mother’s reaction to the disclosure. The social worker stated, “yes,” as mother was given multiple opportunities to be protective of both K.K. and A.K., but chose not to be. As far as the social worker knew, Aaron F. was still in the home.
The social worker also opined A.K. was at risk even though K.K. was the initial victim, because the two were twins and similarly situated. Mother’s reasons for not removing Aaron F. from the home were that he paid the bills and she did not believe the abuse happened. Even though mother communicated to K.K. that she did not believe her, K.K. never recanted.
The social worker testified that the abuse came to light on May 29, 2017, when K.K. sent a message to a friend on Facebook disclosing the abuse, that she could not “take it anymore,” and that she was going to slit her wrists. The friend contacted law enforcement. The friend, an adult, was possibly someone K.K. was dating, but to the social worker’s knowledge, K.K. had not seen this person since being detained.
The social worker explained that a medical/legal examination was never done on K.K. as there never was an allegation of intercourse, meaning there might not be any physical evidence. The social worker did not know if the district attorney planned to file charges against Aaron F.
The social worker testified that K.K. had said she witnessed drug use, including methamphetamine, by Aaron F. and his friends at the house. A.K. denied knowledge of methamphetamine use.
While the social worker acknowledged K.K.’s affect, shyness and poor hygiene “[c]ould be” symptoms of depression, they improved when she was removed from mother’s house. The social worker remained concerned about mother’s protective capacity because she refused to mediate the safety threat to the girls and continued to refuse. Mother was “fearful” to have K.K. back in the home because she believed she would make up lies about the family.
In a recent conversation with father, he indicated to the social worker that the previous molest of K.K. was by a man who was dating mother at the time.
The social worker testified that she gave mother referrals for counseling for herself, but she did not know if mother had followed up with the referrals.
The social worker noted K.K. disclosed the abuse to a friend, to a Sonora Police officer and again to the forensic interviewer. Her statements had been consistent.
Mother testified on her own behalf. She explained the household schedule, which involved her working at McDonalds from 4:00 to 9:00 a.m. most days. Aaron F. and Corey K. worked from 4:00 until 9:00 or 10:00 p.m., went to bed late, and usually slept during the day. Mother testified she slept on the couch and could hear from one room to the next. When the family moved to Sonora in April of 2014, they lived with an aunt until April of 2016, when they moved into their apartment. Aaron F. came to live with them a year after they moved to Sonora, but he slept in “the Bird House,” a separate structure. According to mother, K.K.’s hygiene issues began when she was molested by a family friend at age eight. K.K. disclosed the molestation to a youth pastor, after which she became withdrawn.
When mother was first told of K.K.’s allegations against Aaron F., she did not want to believe it. She then stated, “I guess it could have happened, but … I’m not certain. I’m not – I can’t see everything, I can’t hear everything, but you know, I’m still in shock.” When asked what she did to protect A.K. after K.K. was removed, mother stated she would not let Aaron F. around A.K. by himself, “because I wanted to make sure that nothing was going to happen, you know, even though I didn’t really believe it happened, I just wanted to make sure.” When K.K. was previously sexually abused, mother said she believed her and tried to get her help.
Mother acknowledged that she continued to work from 4:00 to 9:00 a.m. after K.K. was removed, but that there were usually other people around for A.K., like her brother Corey K., and that Aaron F. would be sleeping, but “I can’t be sure anything happened in those times, of course.”
Mother acknowledged having been given referrals for counseling for K.K. in 2015, but did not take her.
Mother explained that Aaron F. helped with the household bills and she could not afford to live there without his help. But she acknowledged that, if he moved out, the cost of the apartment would go down because he is an adult and it is subsidized housing. Mother stated she asked him to get his own place, but he was having financial issues as well.
When asked about Aaron F.’s drug use, mother stated he had “done cocaine before, but he hasn’t done it in the room with any of us.” Instead, he would go into his own room, or outside, or to a friend’s, and it would always be after the girls were asleep. Mother admitted they “all” have medical marijuana cards and so they “always smoke.” Mother opined that she spent an average of $150 a month on marijuana.
In closing, K.K.’s counsel urged the juvenile court to find K.K.’s out of court statement to be reliable, as they were consistent and details in her statements about her home life and drug use in the home were corroborated by mother’s own testimony. Counsel emphasized the position of power Aaron F. had in the home and mother’s inability to protect K.K., even if the molest had not occurred. Counsel recalled how mother did nothing when told K.K. was suicidal and that, when questioned, mother told K.K. in front of her, that she did not believe her about the molestations. Counsel noted that mother finally acknowledged on the stand that the molest “could have happened.”
Mother’s counsel argued that there was insufficient evidence to sustain either the section 300, subdivision (b) or section 300, subdivision (d) allegation.
Counsel for A.K. summarized the crux of the section 300, subdivision (b) allegation stating, after K.K. reported the molest, mother did nothing to protect the girls, and there was still a current risk of harm. Despite the fact that A.K. wished to return home, her counsel argued the section 300, subdivision (b) allegation should be found true. Counsel submitted on the section 300, subdivision (d) allegation.
The juvenile court, in its ruling September 26, 2017, noted that, while the social worker had not qualified as an expert, she had testified to her opinions on the sexual assault without objection. It also noted that, while it would be extremely traumatic to put a 15-year-old on the stand to recount details of a sexual assault, assessing the credibility of a witness based on reading statements was difficult.
The juvenile court then stated, of the two separate allegations, “the easier question” was the section 300, subdivision (b) allegation Because the risk to both K.K. and A.K. was extremely high, mother’s conduct in not taking “very simple” steps of having Aaron F. move out was not protective, as it left him in a position to inflict sexual abuse on either of the girls.
The juvenile court then turned to the section 300, subdivision (d) allegation and analyzed the reliability of K.K.’s statements in light of the fact that there was no physical evidence, mother’s disbelief, as well as the layout of the home. The court found K.K. had no rational motivation for fabricating the allegations and she had been consistent in her statements. She had not recanted and her well-being had taken a dramatic turn for the better when she was removed from the home. The court found that, while close, there was a preponderance of the evidence supporting the allegation as to both girls. Disposition was set for October 10, 2017.
Disposition Report
The report prepared for disposition recommended the girls be removed from mother’s custody and placed with father in Stockton and the cases be transferred to San Joaquin County.
As of October 3, 2017, Aaron F. was still living in mother’s home. At visits, mother reported K.K. was “reserved and distant,” which mother did not understand. Mother admitted to having been molested as a child, which she did not disclose or address until she was an adult.
Mother reported that she last used methamphetamine in 2006, and quit all drugs during the previous case. She resumed marijuana use when Aaron F. moved into her home. She also occasionally drank on her days off.
K.K. was doing fine in father’s home. She had a new boyfriend who was 15 years old. K.K.’s father met the boyfriend’s father before allowing K.K., the boyfriend, and his father to go to the movies together. A.K. was doing “fine,” but would prefer to go back to Sonora.
Disposition Hearing
At the October 24, 2017, disposition hearing, the juvenile court adopted the recommendations of the department that the girls be removed from mother’s care and placed with father.
Mother appeals, challenging the jurisdictional findings of September 26, 2017, and the dispositional orders of October 24, 2017.
DISCUSSION
Mother’s contention on appeal is that the “untested hearsay statements” of K.K. do not bear sufficient indications of reliability to be the sole evidence upon which to find that she was actually molested by Aaron F. and, as such, the petition must be dismissed. We disagree.
Standard of Review
As mother acknowledges, we review the dependency court’s jurisdictional findings and dispositional orders for substantial evidence. (In re David M. (2005) 134 Cal.App.4th 822, 828, disapproved in part on another ground in In re R.T. (2017) 3 Cal.5th 622, 628; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) We examine the whole record in the light most favorable to the findings and conclusions of the dependency court and defer to that court on all issues of credibility. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393, disapproved in part on another ground in In re R.T., supra, 3 Cal.5th at p. 628; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the court's order, resolving all conflicts in support of the determination and indulging all legitimate inferences to uphold the court's order. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Eric B. (1987) 189 Cal.App.3d 996, 1004-1005.) “‘“The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.”’” (David M., supra, at p. 828; accord In re Albert T. (2006) 144 Cal.App.4th 207, 216-217.)
Applicable Law and Analysis
Section 300 begins: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court.” Then follow several subdivisions describing children who may be adjudged dependents of the court. Here, the department alleged and the juvenile court found true the allegations that K.K. and A.K. came within two of these subdivisions: section 300, subdivision (b)(1) (“The 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 ... to adequately supervise or protect the child ....”) and section 300, subdivision (d) (“The child has been sexually abused, or there is 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 [the child’s] household .…”).
“When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Mother does not contest the section 300, subdivision (b) allegation that her reactions to the disclosure and subsequent inactions constituted a failure to protect both K.K. and A.K. from possible future abuse. Thus, we need not, but will, address the section 300, subdivision (d) allegation, the allegation that K.K. had been abused, or there was a substantial risk that she would be abused, by Aaron F.
As to the section 300, subdivision (d) allegation, it is clear that the primary evidence of sexual abuse of K.K. by Aaron F. consists of K.K.’s multiple out-of-court or hearsay statements in the department’s reports, which included a copy a police interview as well. Social worker reports constitute competent evidence on which the court can base a jurisdictional finding. (§ 355, subd. (b)(1).) This rule applies to the hearsay statements in social worker reports, as well as in any attached reports. (In re Malinda S. (1990) 51 Cal.3d 368, 385, superseded by statute as explained in In re M.B. (2011) 201 Cal.App.4th 1057, 1069-1070; In re Corey A. (1991) 227 Cal.App.3d 339, 346.) However, if a parent “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” a hearsay exception set forth under section 355, subdivision (c)(1). Section 355, subdivision (c)(1) sets forth a number of hearsay exceptions, not applicable here, enabling the court to rely solely on hearsay statements to find jurisdiction.
As noted by the juvenile court, at no point during the juvenile court proceedings did mother object to the social study containing K.K.’s hearsay statements in the departments’ report of the police reports. The statements were therefore admissible and could, if found to be credible by the juvenile court, be the sole support for sustaining the section 300, subdivision (d) allegation. (§ 355.)
Even if there had been a timely sustained objection, the juvenile court was not barred from considering the hearsay statements. In In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.), our Supreme Court held that out-of-court statements of a minor who is subject to a jurisdictional hearing “and who is disqualified as a witness because of the lack of capacity to distinguish between truth and falsehood at the time of testifying” may not be the only basis for a jurisdictional finding unless the statements are reliable. (Id. at pp. 1247-1248.) In Lucero L., our Supreme Court considered whether section 355 controls when hearsay statements are made by a minor who was deemed incompetent to testify because the child lacked the ability “at the time of testimony to understand the obligation to tell the truth and/or to distinguish between truth and falsehood.” (Lucero L., supra, at p. 1231.) The court held that in such cases, “section 355 notwithstanding,” due process concerns require the juvenile court to find that the “‘time, content, and circumstances of the [hearsay] statement provide sufficient indicia of reliability’” if those statements are exclusively relied upon by the court when exercising jurisdiction. (Id. at pp. 1242, 1247-1248.)
Here, however, the juvenile court did not find K.K. incompetent to testify at the jurisdiction hearing due to her lacking the ability to distinguish between truth and falsehood. Indeed, the court was never called upon to determine K.K.’s competency to testify because none of the parties called K.K. as a witness or claimed that K.K. was incompetent to testify. Lucero L. is therefore not determinative here, but provides guidance on determining the reliability of out of court statements in juvenile dependency cases.
As noted by the juvenile court, while there was no physical evidence to corroborate any sexual abuse, K.K.’s statements to a friend, the department and in the police interview possessed sufficient indicia of reliability. K.K. statements were “absolutely consistent in the[ir] disclosure.” The juvenile court discounted K.K.’s statements as motivation for getting Aaron F. to move out of the home, stating there was no way of knowing what that disclosure was going to lead to. In its ruling, the juvenile court reiterated K.K.’s consistency in her statements, the fact that she had not recanted “in any way,” and that when she was removed from mother’s home, “her physical well-being, and her mental well-being [made] a fairly dramatic turn,” which could be attributed to removing her from a situation where she was been abused. And while the juvenile court found it to be “an extremely close question,” it found that the allegation was supported by a preponderance of the evidence.
We find substantial evidence supports the juvenile court’s section 300, subdivision (d) jurisdictional finding and disagree with mother’s claim to the contrary.
DISPOSITION
The juvenile court’s jurisdictional and disposition orders are affirmed.