(Los Angeles County Super. Ct. No. CK82853) APPEAL from orders of the Superior Court of Los Angeles County. Rudolph A. Diaz, Judge. Affirmed in part and reversed in part.
The opinion of the court was delivered by: Bigelow, P. J.
CERTIFIED FOR PUBLICATION
The current consolidated appeal arises from related proceedings which are being addressed together in the juvenile dependency court. In one proceeding, the dependency court sustained allegations that Jose C., Sr., had sexually abused the 11-year-old daughter of a cohabitant, and that the child's mother knew of that abuse but failed to take action to protect the child against the abuse. As a result, the court found the victim of the direct abuse, and her siblings in the family home, were at risk of physical and emotional harm, including a risk of sexual abuse. In the related proceeding, based upon the same evidence of sexual abuse involving the 11-year-old child, the court sustained allegations that Jose C., Sr., presented a risk of sexual abuse to his own adolescent sons who lived in the family home, and posed a risk to his own teenage daughter who lived with her mother. On appeal, Jose C., Sr., challenges the dependency court's findings that he poses a risk of emotional and physical harm and sexual abuse as to any and all of the children. He argues the findings are based on evidence which is incompetent, not credible and insubstantial. We affirm as to the children in the family home and reverse as to the child not living in the family home.
Jose C., Sr., and Angelica L. are the parents of Ana C., born in 1993, Jose C., Jr., born in 1998, and Eric C., born in 2000. The parents separated in 2003. Pursuant to custody proceedings in 2006, Ana C. went to live with Angelica L., while Jose C., Jr., and Eric C. lived with Jose C., Sr.
Esmeralda F. and a father whose whereabouts are not known are the parents of Kimberly A. (the sexual abuse victim), born in 1996, and Jacqueline A., born in 2002.
The two families became interrelated when Jose C., Sr., Jose C., Jr., and Eric C. moved into a family home with Esmeralda F., Kimberly A. and Jacqueline A. Together, Esmeralda F. and Jose C., Sr., had one child, Yesenia C., born in 2007.
The Dependency Proceedings
On June 9, 2010, the Los Angeles County Department of Children and Family Services (DCFS) received a referral, apparently from Kimberly A.'s school, alleging sexual abuse involving Kimberly A. The same day, a DCFS case social worker (CSW) spoke with the reporting party. The reporting party stated that a friend of Kimberly A. had relayed that Kimberly A.'s stepfather (i.e., Jose C., Sr.) was forcing Kimberly A. to have oral sex with him when Kimberly A.'s mother was out of the family home. The CSW then interviewed Kimberly A. The CSW wrote down Kimberly A.'s statements as follows:
"My father has touched me in my private parts. My father is Jose. The day that my father touched my private parts was at night after I turned off the television and I believe [it] was on a weekend because I did not have to go to school the next day. I don't recall the exact date of the incident but it might be November or December of 2008. My father touched my private when I was 11 years old. I was lying down on the sofa watching television and my father came out of his children's room. My father went to check if my mom was asleep and she was so he came over to my bed (which is the sofa). My father told me to turn around so I was on my right side and my back was towards my father. My father then got into the bed and lay on the side of me but I was not facing him. My father then grabbed me here (CSW observed that child pointed to her breast) then he touched my 'cosa' (when child would say 'cosa' she would point to vagina) over my clothes. My father asked me to, 'chupa me mi parte' (suck my private part). I told my father, 'no.' My father then began to take off my shirt then my shorts and then my underwear. . . . So the only thing that he left on was my pink bra. My father then sucked my vagina then he sucked my right breast. After he did that he just got out my bed and walked by to Jose and [Eric's] room. I put my clothes back on and just lay in bed. Soon my sibling Jacqueline came to sleep in the bed with me. Me and Jacqueline share the same bed in the living room. When father did this to me my mother was in her bedroom asleep with my sibling Yesenia and Jacqueline and Jose and [Eric] were in their bedroom. Nobody saw what my father did to me."
After the interview at school, the CSW took Kimberly A. to a local police station where she met with two officers. The written police reports of Kimberly A.'s statements disclose the following: Kimberly A. told the officers that the incident happened when she was 11 years old, on a December school night. She said her brothers were asleep and her sisters were in her parents' room. She was laying down on the sofa bed in the living room watching television when her stepfather lay down next to her. He fondled her breasts over her shirt with one hand while touching her vagina with the other. She said that he put his "private" in her "butt" for "two minutes." When asked what she meant by "private," she said it was his "thing" and pointed to her crotch area. She said her stepfather's act caused her to feel pain. Kimberly A. told the police officers that she did not say or do anything because she was scared and did not understand what was happening. She said that when her stepfather was done, he got dressed and went back to his bedroom. After her stepfather left, Jacqueline A. came out of the parents' bedroom and lay down next to Kimberly A. to sleep, which was their normal sleeping arrangement. Kimberly A. said that she told her mother about the incident the next day, and her mother said that she would not let it happen again. Kimberly A. did not tell anyone about the incident until June 2010, almost two years after it allegedly occurred. Kimberly A. stated that she had not reported the abuse incident earlier because she did not want anything to happen to her stepfather.
Sometime later the same day, the CSW (accompanied by another social worker, and then by police officers) went to the family home, where they interviewed Esmeralda F., Jose C., Sr., Jacqueline A., Jose C., Jr., and Eric C. All of the family members denied that any abuse could have occurred and said that Kimberly A. was lying. Esmeralda F. told the CSW that Jose C., Sr., had not sexually abused any of the children, and that Kimberly A. tended to "lie about things." Esmeralda F. said that Kimberly A.'s teacher had twice reported hearing Kimberly A. telling classmates about sexual actions that Jose C., Sr., and Esmeralda F. had engaged in, but because the adults never did anything sexual in front of the children, Esmeralda F. did not know where Kimberly A. was getting her information. Esmeralda F. denied that Kimberly A. had ever told her that Jose C., Sr., had touched her private parts. Esmeralda F. also said that she had never witnessed Jose C., Sr., touching Kimberly A. inappropriately.
Jose C., Sr., denied Kimberly A.'s allegations, stating: "I take all the children to school in the morning. I have never done something like that to Kimberly or any other children. I have never acted inappropriate with Kimberly. I have never sexually abused any child or adult."
Kimberly A. and her sisters, Jacqueline A. and Yesenia C., were detained. Jose C., Sr., was apparently arrested at the family home.*fn1 Also on the same day, the CSW removed Jose C., Jr., and Eric C. from Jose C., Sr.'s home, and took them to the home of their mother (Angelica L.).
Kimberly A. received a forensic medical examination. The examiner wrote down Kimberly A.'s statements during the examination as follows: "Dad did it to me, long time ago - he touch me here (pointing to breast) under my clothes he also touch me here (pointing to abdomen back). He put his thing (penis) in my front (pointing to vaginal area) back (pointing to anal area) 1x on the sofa at home and mom was in other room. I told mom but can't remember what she said." The examiner concluded that Kimberly A.'s examination was normal, and could neither confirm nor exclude sexual abuse.
DCFS filed a petition on behalf of Esmeralda F.'s children with the absent father, Kimberly A. and Jacqueline A., and her child with Jose C., Sr., Yesenia C., based on allegations that Jose C., Sr., had sexually abused Kimberly A. when she was 11 years old, and that Esmeralda F. had failed to protect Kimberly A. from the sexual abuse.
A CSW interviewed Ana C., then almost 17 years old, in her family home. Ana stated that she had lived with her father until she was 13 years old, and that he never abused or molested her. During this same visit, the CSW also interviewed Jose C., Jr., then 11 years old. Jose C., Jr., denied the sexual abuse allegations and said he did not know why Kimberly A. accused his father, but it was not true. He wanted to have contact with his father. The CSW also spoke to Eric C., then nine years old. He too denied allegations of sexual or physical abuse, saying, "My dad never touch me." He said he did not know why Kimberly was saying this, but it was not true. Eric C. also wanted to live with his father. Last, the CSW interviewed Angelica L. She told the social worker that her children had denied that their father had ever touched them improperly, and that they did not believe he would do anything to Kimberly A.
DCFS filed a petition on behalf of Jose C., Sr.'s children with Angelica L., that is, Ana C., Jose C., Jr., and Eric C.
The CSW interviewed Esmeralda F. again at the family home. She repeatedly denied that Kimberly A. had ever said anything to her about father touching her, and that she first learned of it from the social worker.
On July 2, 2010, a DCFS dependency investigator (DI) interviewed Kimberly A. in her foster placement. Kimberly A. "appeared to be nervous and was rubbing her hands throughout the interview." During the interview, Kimberly A. referred to Jose C., Sr., as her "stepdad." Kimberly A. told the DI that the incident occurred 9:00 p.m. on a Sunday, on the sofa bed, when Kimberly A. was 12 years old. Kimberly A. told the DI that her stepdad had removed her clothing, and that he was also unclothed. Her stepdad then touched and licked her breast (pointing to that area) and her vaginal area (also pointing). He put his "middle part on the front and on the back" and "[i]t felt hard." The incident lasted "2-minutes." She identified his "middle part" by pointing to the penis area of a stuffed animal. When asked what stepdad told her to do, Kimberly A. said "turn around" but she could not remember what she did in response. She said that stepdad had asked her to lick it (referring to his "middle part") but she had said "no." Kimberly A. said the abuse occurred one time. She said that her mother was "[i]n her room" during this incident. Kimberly A. also told the DI that she had told her mother about this incident and her mother told her stepdad "[t]o not do that." When asked if her stepdad touched her again, Kimberly A. said, "no," but then said that her mother "saw one day." When asked what her mother saw, Kimberly A. said, "Doing it to me." Kimberly A. added that her mother also saw her stepdad kissing Kimberly A., and told him "[t]o stop doing it." Kimberly A. also told the DI that Jacqueline A. was present and saw "when my step-dad put his middle part on my front and back." According to Kimberly A., Jacqueline A. said nothing at the time, but later told their mother.*fn2
Also on July 2, 2010, the DI interviewed Jacqueline A. at her foster placement. Jacqueline A. referred to Jose C., Sr., as her "dad" during the interview. When asked about her dad sexually abusing Kimberly A., Jacqueline A. said "no." After the DI spoke to Jacqueline A. about the "difference between a good touch and a bad touch," the DI asked Jacqueline A. whether her dad had touched Kimberly A. in a "bad way." Jacqueline A. said yes, but would not respond at all to the DI's further questions. When asked if she had seen her dad touch Kimberly A., Jacqueline A. stated that her dad had once touched Kimberly A. on her back in the kitchen, and Kimberly had asked him to stop. When the DI directly asked Jacqueline A. if she was not talking about Kimberly A. allegedly being sexually abused because she wanted to go home to her mother, Jacqueline A. said yes.
The two petitions were combined for adjudication, which took place in January 2011. At that time, DCFS reports, which included the contents of the interviews that are summarized above, were admitted into evidence. Further information in the reports showed that Kimberly A. is a special education student, with a diagnosis of moderate mental retardation, and attended special day classes. School district reports apparently written in February 2010 stated that Kimberly A.'s disability significantly impairs her ability to read and write; she is able to read "some high frequency words and sight words at a high first grade level, and is "able to decode single syllable words."
Two witnesses were called to testify at the adjudication hearing -- Kimberly A. and her then third-grade sister, Jacqueline A. Prior to Kimberly A.'s testimony, her counsel noted to the dependency court that her individual education plan classified her as "moderately mentally retarded" and asked the court to "qualify" her to testify. After Kimberly A. answered questions about her name and age, the court questioned Kimberly A. to discern whether she understood the difference between telling the truth and lying. At the conclusion of the inquiry, the court found that Kimberly A. was "qualified" to testify because she "understands between right and wrong" and "[u]nderstands the requirement to testify truthfully."
During her testimony, Kimberly A. testified that Jose C., Sr., touched her "a lot" of times, and that her mother had seen one of those times. She also testified that she told her teacher what her stepfather had done. She could not remember details that were included in the reports of her interviews. She testified she never told friends about the abuse. She did not like Jose C., Sr.
After a short series of questions in which Jacqueline A. stated that she did not know what it means to tell lies, the court ruled that Jacqueline A. did not qualify to testify.
At the end of the adjudication hearing, the court made the following statements regarding the evidence, and, in particular, on Kimberly A.'s testimony (both in interviews and in the courtroom) regarding the allegations in the petitions:
"I did have the opportunity to review all the appropriate documents which have now been admitted into evidence. I had the opportunity to also hear Kimberly's testimony, observe her while testifying, as well. It's not to be so unexpected her testimony won't be totally consistent throughout the numerous interviews she went through. I don't know the extent of her mental health impairments. There's no evidence to describe the extent of it, how it might affect her recollection or her credibility. But I think there's some indication while observing her, there's some impairment. But I don't think it affected her credibility.
"I think she was pretty consistent in describing the actual event that she described in all her instances. I do think at the time of the incident -- I don't think there were any other witnesses who observed. I think there were other incidents that occurred. She was not really clear about those. They apparently include some touching. Another incident where her father was on top of her, when mom, according to her, was present and did intervene, I believe, at that time. But I do not think her recollection of the instance that brings us here today has been disproved. I think she has proven [it] to the court.
"I had the opportunity to observe her. You can literally see the pain in this young lady. [The] [t]rauma she has been exposed to. I'm convinced by [a] preponderance of the evidence that the incident occurred as charged and alleged in the petition and [I] will be sustaining the petition."
The court sustained the allegations under Welfare and Institutions Code section 300, subdivisions (b), (d), and (j), as pled as to Kimberly A., Jacqueline A. and Yesenia C. In the related case, the court sustained allegations under section 300, subdivisions (b) and (d), as pled as to Ana C., Jose C., Jr., and Eric C.
In March 2011, the court issued disposition orders. Jose C., Sr., filed a timely appeal.
Jose C., Sr., contends the dependency court's findings must be reversed because the court erred in finding Kimberly A. was competent to testify. We disagree.
The record does not show an objection by Jose C., Sr., that Kimberly A. was not competent to testify. To preserve a claim on appeal that a witness was not competent to testify, a party must have objected on that ground in the trial court. (See, e.g., In re S.C. (2006) 138 Cal.App.4th 396, 420, citing People v. Cudjo (1993) 6 Cal.4th 585, 622.) We reject Jose C., Sr.'s argument that we should address his claim even in the absence of an objection below. The issue of a witness's competence largely involves an evaluation and weighing of the evidence concerning the issue. This type of fact-based issue presents an ideal circumstance for applying the forfeiture rule. When an objection is made, a record can be developed which gives the trial court and any reviewing court a meaningful basis upon which to consider the issue. When an objection is not made, a record for meaningful review is not available.
Jose C., Sr.'s reliance on In re S.B. (2004) 32 Cal.4th 1287 in support of his argument for conducting a review without an objection is misplaced. In S.B., the issue on appeal was a legal issue -- whether the dependency court may delegate to the child's legal guardian the authority to decide whether a parent may visit a child -- which had divided the Courts of Appeal. (S.B., at pp. 1293-1294.) S.B. did not involve forfeiture in the context we face, where the issue is the suitability of review concerning a fact-driven issue in which the trial court exercises its discretion.
Even assuming that Jose C., Sr.'s claim of error regarding Kimberly A.'s competence to testify is not waived, we are not persuaded that the trial court erred. A trial court's ruling on a witness's competence to testify is reviewed for abuse of discretion. (See, e.g., People v. Montoya (2007) 149 Cal.App.4th 1139, 1149-1150.) A trial court abuses its judicial discretion when it renders a ruling that is absurd or beyond the bounds of reason, all of the circumstances considered. (Id. at p. 1150.) Here, the dependency court questioned Kimberly A. before she testified, and then determined she was qualified to testify. The entirety of her testimony on the subject, which follows, bears this out:
"Kimberly A., a minor, called as a witness by the father, was sworn, examined and testified as follows:
"THE COURT: I'm going to have you face the lady who is standing. Can I have you raise your right hand. Which one is your right hand? Look at her ...