IN RE: CINDY L.

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Court of Appeal, Second District, Division 4, California.

IN RE: CINDY L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. EDGAR L., Defendant and Appellant.

No. B093031.

Decided: June 24, 1996

Stephanie M. Davis, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant. De Witt W. Clinton, Los Angeles, County Counsel, Joe Ben Hudgens, Monterey Park, Principal Deputy County Counsel, and Gary P. Gross, Los Angeles, for Plaintiff and Respondent.

Appellant Edgar L. (hereafter “Edgar”) is the father of Cindy L. (hereafter “Cindy”), a dependent child of the juvenile court.   Edgar appeals from the juvenile court's orders under sections 300 and 360 of the Welfare and Institutions Code removing Cindy from Edgar's custody.   He contends insufficient evidence supports the court's findings of sexual abuse by Edgar.   We conclude that substantial evidence supports these findings and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Cindy was born on October 15, 1990.   Edgar and Cindy's mother, Sonia M. (hereafter “Sonia”) separated in January 1994, and Cindy continued to live with Sonia.

In August 1994, Cindy attended Thomas Preschool.   On August 12, 1994, during nap time, a teacher's aide, Yolanda Herrera, noticed Cindy lying on her back, with her legs spread open touching her vagina underneath the side of her underwear using both hands.   Herrera asked, “ ‘Cindy, what are you doing?   You shouldn't be touching yourself right there.   You shouldn't do that.’ ”   Cindy replied, “ ‘Well, my father always touches me right here․’ ”

Herrera reported this incident to the teacher, who directed Herrera to inform Sonia.   That night, Sonia talked to Cindy, who denied any abuse.   After a second incident at the preschool, the director of Thomas Preschool referred the matter to the Department of Children and Family Services (“DCFS”) on August 16, 1994.

On that date, Mary Newman, a social worker, interviewed Cindy at the preschool through an interpreter.   When Newman asked Cindy, “ ‘Has anyone touched you in private places?’ ”, Cindy demonstrated by using her hand, touching her vagina, and pushing the material of her shorts into her vagina.   Newman asked, “ ‘What did Poppie touch you with?’ ”, to which Cindy answered, “ ‘Fingers.’ ”   When asked “ ‘How many fingers?’ ”, Cindy replied, “ ‘One.’ ” Cindy indicated to Newman that the touching took place at night in “ ‘daddy's bed.’ ”   When asked to demonstrate her condition in bed by pointing to a dressed or undressed doll, Cindy pointed to the undressed doll.   Cindy told Newman, “ ‘Daddy loves me best.   I'm his favorite.   Nobody loves me but daddy.’ ”

Newman reported the matter to the Los Angeles Police Department, whose investigator tried to interview Cindy at a police station with Sonia's assistance on August 16, 1994.   Cindy only pointed to her vagina and said “ ‘Papi.’ ”   The police investigators could not determine “where or when the actions occurred.”

On the same date, Cindy was directed to Westside Hospital, where she was examined by Dr. Stephan Greene.   Dr. Greene reported that although he found no evidence of trauma, he did not “visualize” a hymen, and concluded that these findings were consistent with the reported history of sexual abuse.

On August 18, 1994, DCFS filed a petition under section 300 of the Welfare and Institutions Code, alleging that Edgar had sexually abused Cindy and that he had a history of alcohol use that rendered him incapable of caring for Cindy.   At the detention hearing, Cindy was released into Sonia's physical custody and Edgar was permitted visits monitored by someone other than Sonia.   The matter was set for mediation.

On October 20, social worker Henry Olea interviewed Cindy.   Olea asked Cindy if she knew the difference between a “good touch” and a “bad touch.”   Cindy replied by patting her vagina and saying, “ ‘Poppi.’ ”   When asked when this activity happened, Cindy replied that it occurred in a bed.   Thereafter, Cindy became nonresponsive to Olea's questions.

When mediation failed, the matter was set for adjudication on March 16, 1995.   At the adjudication, DCFS twice tried unsuccessfully to obtain testimony from Cindy.   After the first attempt, Edgar contended that Cindy was not competent to testify.   The juvenile court also heard testimony from Herrera, Newman, and Olea about Cindy's statements to them.   Herrera did not provide any testimony bearing on Cindy's competence as a witness when she spoke to Herrera.   With respect to Cindy's competence, Newman testified that she could not specifically recall what she had done to determine whether Cindy understood the obligation to tell the truth, although she had a general routine for questioning children about their understanding of falsehoods, and she believed she had performed this routine with Cindy.   With respect to Cindy's competence, Olea testified only that he had determined she believed lies were bad.   Finally, the juvenile court heard testimony from Sonia, Edgar, and Martha Campos, Edgar's mother, and the application for petition, partial resolution conference report, police report, and Dr. Greene's medical report were admitted into evidence.

After a four-day adjudication culminating in a disposition hearing, the juvenile court found that Cindy was not competent as a witness in court because “[t]here is no way [the court could] make a finding based upon the behavior that [it] saw in [the] courtroom, that she understood the duty to tell the truth or she had the ability to distinguish between the truth and falsity.”   The court found that Cindy was not competent when she made her earlier statements to Newman and Olea, reasoning that under In re Daniel Z. (1992) 10 Cal.App.4th 1009, 13 Cal.Rptr.2d 139, Cindy's incompetence in court raised a presumption of incompetence in other contexts that Newman's and Olea's testimony did not rebut.1  The court therefore disregarded Cindy's remarks to Newman and Olea.2

However, the juvenile court concluded that Cindy's remarks to Herrera were admissible under the “child dependency exception” to the hearsay rule announced in In re Carmen O. (1994) 28 Cal.App.4th 908, 33 Cal.Rptr.2d 848, for which a finding of competency is not required.   On the basis of this evidence, Dr. Greene's medical report, and the testimony bearing on Edgar's opportunity to abuse Cindy, the juvenile court sustained the petition's allegations under section 300, subdivision (d), namely, that Edgar had sexually abused Cindy, and there was a substantial risk she would be sexually abused.   Pursuant to section 360, the juvenile court ordered family reunification services for Edgar, including sexual abuse counseling and visitation monitored by someone other than Sonia, followed by a six-month review.

DISCUSSION

On appeal, Edgar contends (1) the absence of pertinent evidence concerning Cindy's competence precluded the admission of her remarks to Herrera under the “child dependency exception” to the hearsay rule, (2) admitting these remarks violated Edgar's confrontation rights, and (3) absent this inadmissible hearsay, there is no substantial evidence to support the finding of sexual abuse.

A. Child Dependency Exception

 The initial issue is whether Edgar waived his competence objection because he did not object during Herrera's testimony about Cindy's remarks.   Even technically inadmissible evidence will be considered in support of a judgment if admitted without objection.  (See Evid.Code, § 353;  Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 865, 236 Cal.Rptr. 778; 3 Witkin, Cal.Evidence (3d ed. 1986) Introduction of Evidence at Trial, §§ 2033–2035, pp. 1994–1997.)   Here, Edgar questioned Cindy's competence before Herrera's testimony, and the juvenile court addressed the relevance of Cindy's incompetence to Herrera's, Newman's, and Olea's testimony in making its findings.   On this record, we cannot conclude that Edgar waived his competence objection concerning Herrera's testimony or that he is attempting to raise it for the first time on appeal.  (See People v. Brooks (1979) 88 Cal.App.3d 180, 185, 151 Cal.Rptr. 606 [no waiver of hearsay issue on appeal when party made hearsay objection to similar testimony by earlier witness, and the record discloses that the trial court made inquiries into the hearsay issue].)

 Citing Daniel Z., Edgar contends that Herrera's testimony was inadmissible because the juvenile court found that Cindy was incompetent at trial, and no evidence was presented concerning Cindy's competence when she spoke to Herrera.   We disagree.

Edgar's contention rests on a misunderstanding of Daniel Z. and the line of cases to which it belongs, which stem from In re Basilio T. (1992) 4 Cal.App.4th 155, 5 Cal.Rptr.2d 450.   In Basilio T., the court concluded that the trial court erred in admitting a four-year old's out-of-court remarks into evidence after the trial court found that the child was incompetent to testify in court due to an inability to distinguish truth from falsity.  (See id. at pp. 167–168, 5 Cal.Rptr.2d 450.)   The court reasoned that (1) witnesses are not competent to testify if they are incapable of understanding the duty to testify truthfully, and (2) extrajudicial statements by incompetent declarants are normally inadmissible even if they meet the requirements of a hearsay exception.  (See id. at pp. 166–167, 5 Cal.Rptr.2d 450.)   However, the court qualified (2), noting that out-of-court statements made by an incompetent declarant may be admissible hearsay under the excited utterance exception and the exception for fresh complaint of rape.  (Ibid.)  Because the situation in Basilio T. fell outside these hearsay exceptions, the court set aside this qualification and did not explore its implications.  (See id. at p. 167, 5 Cal.Rptr.2d 450.)

Subsequent cases have narrowed the rule in Basilio T. In Daniel Z., the court recognized that children may be incompetent to testify in court, yet competent when they made an extrajudicial statement.  (See In re Daniel Z., supra, 10 Cal.App.4th at pp. 1018–1019, 13 Cal.Rptr.2d 139.)   The Daniel Z. court held that once a child is found to be incompetent as a witness in court, there is a rebuttable presumption the child is incompetent in other contexts.  (Ibid.)  Other cases have clarified this presumption and the rule in Basilio T. (See In re Carmen O., supra, 28 Cal.App.4th at pp. 913–914, 33 Cal.Rptr.2d 848;  In re Clara B. (1993) 20 Cal.App.4th 988, 997–998, 25 Cal.Rptr.2d 56;  In re Kailee B. (1993) 18 Cal.App.4th 719, 726–728, 22 Cal.Rptr.2d 485;  In re Dirk S. (1993) 14 Cal.App.4th 1037, 1043, 17 Cal.Rptr.2d 643.)

By contrast, this case raises two issues concerning the little-explored qualification to the Basilio T. court's analysis:  (1) whether an incompetent child's out-of-court statement may be admissible under hearsay exceptions applicable to extrajudicial statements by incompetent declarants, and (2) if so, whether the child dependency exception is such an exception.

 With respect to (1), California courts have long concluded that out-of-court statements by children too young to testify are admissible under the spontaneous declaration and excited utterance exceptions to the hearsay rule.   (See In re Emilye A. (1992) 9 Cal.App.4th 1695, 1712–1713, 12 Cal.Rptr.2d 294;  In re Damon H. (1985) 165 Cal.App.3d 471, 475–477, 211 Cal.Rptr. 623;  People v. Orduno (1978) 80 Cal.App.3d 738, 742–743, 145 Cal.Rptr. 806;  People v. Butler (1967) 249 Cal.App.2d 799, 806–807, 57 Cal.Rptr. 798.)   Because these exceptions are founded on the theory that the statements so admissible are made in circumstances that inhibit fabrication, a child's inability to understand the duty to tell the truth is irrelevant to their application.  (See 6 Wigmore, Evidence (Chadbourne rev. 1976) § 1751(c)(1), p. 223.)

With respect to (2), the child dependency hearsay exception announced in Carmen O. is predicated on a theory similar to that underlying the spontaneous declaration and excited utterance exceptions.   In Carmen O., the court concluded that although certain out-of-court statements about sexual abuse made by a four-year-old child to her half-sister were not admissible under the spontaneous statement and fresh complaint hearsay exceptions, it discerned a “residual hearsay exception” under which they were admissible.   (See In re Carmen O., supra, 28 Cal.App.4th at pp. 915–922, 33 Cal.Rptr.2d 848.)   The court reasoned:  “The circumstances of this case ․ fit the general outlines of the test of reliability typically required for use of a ‘residual’ hearsay application.   The child here was of a very young age such that it is unlikely that the accusation was fabricated or the product of imagination.   The statement accusing father of molestation was spontaneous rather than the result of suggestive or leading questioning.   Independent evidence was consistent with the statement.   The statement was made not once but several times, and its various recitations were consistent.   The wording of the statement both in its Spanish terminology and in its use of infantile descriptive words indicate no coaching (description of the penis as a ‘cucumber’).   Other adult males lived in the same household, but no accusation was made against them, which indicates a lack of indiscriminate or random accusations.   Finally, there appeared no motive for Carmen to lie or exaggerate in her statements:  The evidence was that she loved her father, played with him and, apparently, did not become disaffected from him because of his sexual acts with her.”  (Id. at p. 921, 33 Cal.Rptr.2d 848, emphasis added.)

Although the Carmen O. court determined that the child was competent when she spoke to her half-sister, the test of reliability underlying the child dependency hearsay exception probes for unreflective and spontaneous truth-telling, and is not founded on the declarant's regard for the duty of truth-telling.   Other jurisdictions possessing an analogous hearsay exception for children's statements concerning sexual abuse have concluded that admissibility does not require a finding of competency at the time the statements are made.   (See Wash.Rev.Code Ann., § 9A.44.120 (West 1995);  In re the Dependency of S.S. (Wash.Ct.App.1991) 61 Wash.App. 488, 496, 814 P.2d 204.)

In view of the similarity of child dependency exception to the excited utterance and spontaneous declaration exceptions, we conclude that the juvenile court did not err in admitting Herrera's testimony about Cindy's remarks in the absence of evidence that Cindy was competent when she spoke to Herrera.

B. Right Of Confrontation

 A parent's right of confrontation is not abridged when out-of-court statements by a child incompetent to testify at trial are admitted under a hearsay exception, provided the parent has an opportunity to cross-examine parties who present evidence of the statements, and the hearsay exception has the requisite “indicia of reliability.”  (In re Dirk S., supra, 14 Cal.App.4th at pp. 1044–1045, 17 Cal.Rptr.2d 643.)   Here, Edgar had the opportunity to cross-examine Herrera.   Moreover, Edgar's right of confrontation was not prejudiced by the application of the child dependency exception.   Although of recent vintage, this exception closely resembles the spontaneous declaration exception, the application of which to incompetent children does not violate the confrontation clause.  (See People v. Orduno, supra, 80 Cal.App.3d at pp. 746–748, 145 Cal.Rptr. 806.)

C.  Substantial Evidence

 Whereas the findings underlying the juvenile court's jurisdictional order pursuant to section 300 require proof by preponderance of the evidence, the findings underlying its dispositional order require proof by clear and convincing evidence.  (See In re Basilio T., supra, 4 Cal.App.4th at p. 170, 5 Cal.Rptr.2d 450.)   Nonetheless, the appellate standard applicable to these findings is review for substantial evidence.  (See In re Basilio T., supra, at p. 171, 5 Cal.Rptr.2d 450;  In re Christina A. (1989) 213 Cal.App.3d 1073, 1080, 261 Cal.Rptr. 903).   We will affirm these findings if examination of the record, reviewed as a whole and in the light most favorable to the order, discloses evidence that is “ ‘reasonable, credible and of solid value’ ” which would allow a reasonable trier of fact to make the pertinent findings.  (Ibid., quoting In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal.Rptr. 637, 623 P.2d 198.)   In view of Herrera's testimony and Dr. Greene's medical report, we conclude that there is reasonable, credible evidence in the record to support the juvenile court's findings.

DISPOSITION

The juvenile court's orders are affirmed.   Each party is to bear its own costs.

FOOTNOTES

1.   The juvenile court apparently misspoke when it stated that Daniel Z. stands for the proposition that “if the minor is incompetent in court due to an inability to understand the obligation to tell the truth, there is a rebuttable presumption of competency.”  (Emphasis added.)  (See In re Daniel Z., supra, 10 Cal.App.4th at p. 1019, 13 Cal.Rptr.2d 139 [“[O]nce the presumption arises, the judge must assume earlier incompetency unless and until evidence is introduced which would support a finding of competency․”].)

2.   The juvenile court seems to have disregarded Cindy's remarks to the police investigators recorded in the police report on the same basis.

BARON, Justice.

CHARLES S. VOGEL, P.J., and EPSTEIN, J., concur.

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