Filed 4/16/13 In re A.C. CA6
Reposted to provide correct filing date; no change to text
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


In re A.C., a Person Coming Under the                                H038929
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. JD21014)

SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,

         Plaintiff and Respondent,

         v.

B.C.,

         Defendant and Appellant.



         Appellant B.C. appeals from an order adjudging his son A.C. a dependent child
under Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and
(j) [abuse of sibling]. He contends: (1) there was insufficient evidence to support
jurisdiction, and (2) the juvenile court erred in considering hearsay evidence.1 We affirm.




1
      All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
                         I.   Factual and Procedural Background
       Appellant and S.C. (mother) are the parents of A.C., who was born in
December 2011.2 In January 2012, the Department of Family and Children’s Services
(Department) filed a juvenile dependency petition alleging that A.C. came within the
jurisdiction of the juvenile court under section 300, subdivisions (b) and (j). The petition
alleged that A.C. was at substantial risk of serious physical harm due to appellant’s
physical and sexual abuse of A.C.’s half siblings and the mother’s inability to adequately
protect him. The petition included allegations that: (1) there was domestic violence
between the parents, (2) appellant had been arrested after A.C.’s half sisters, 16-year-old
Deborah and 17-year-old Lydia, accused him of having sexual intercourse and oral sex
with them on multiple occasions and threatening them with physical harm if they
disclosed the abuse, (3) appellant’s parental rights to A.C.’s half sibling, Stephen, were
terminated based on physical abuse by appellant and domestic violence between
appellant and Stephen’s mother, (4) appellant physically abused A.C.’s half sibling,
Gabriel, when he was an infant, (5) appellant had a criminal history, (6) the mother
minimized the domestic violence between her and appellant and would allow appellant to
return home after his release from custody, and (7) the mother did not believe that
appellant sexually or physically abused any of A.C.’s half siblings.
       The jurisdiction/disposition report, dated February 15, 2012, recommended that
the court take jurisdiction of A.C., family maintenance services be provided for the
mother, and no services be provided for appellant. The report summarized the domestic
violence perpetrated by appellant against his ex-wives and the mother, appellant’s
physical abuse of his other children, and appellant’s sexual abuse of his daughters.
       Vicky R. was appellant’s first wife. They were married in 1991 and they are the
parents of Stephen, Lydia, and Deborah. In 1993, Stephen became a dependent of the


2
       The mother is not a party to the appeal.

                                             2
court when he was 11 months old due to physical abuse and domestic violence. At that
time, Stephen had multiple bruises on his head, face, and neck as well as a possible
fractured femur. These injuries were found consistent with abuse. Though appellant and
Vicky R. were provided with reunification services, they failed to reunify with Stephen
and their parental rights were terminated. Vicky R. originally denied any abuse of
Stephen and domestic violence between her and appellant. However, in 2011, she
reported that appellant had physically abused Stephen. She explained that she was too
terrified of appellant at the time to tell the truth because he was so abusive to her.
       E. Z. was appellant’s second wife. In 1998, it was reported that Deborah and
Lydia were exposed to domestic violence by appellant against E. Z. Appellant was
arrested for assaulting E. Z., and she obtained a restraining order against him. After E. Z.
was granted temporary legal guardianship of Deborah and Lydia, the referral was closed.
       Appellant married Vicky D. in 2003.3 Vicky D. reported that appellant habitually
psychologically and physically abused her. Appellant pushed her against walls,
restrained her, hit her, choked her, threatened to kill her, bit her, locked her in the
bedroom or bathroom, and never let her talk to anyone. He also called her names and
forced her to have sex with him. After their son Gabriel was born in 2004, appellant
began abusing him. He grabbed or yanked Gabriel from Vicky D.’s arms, threatened to
give him away, shook him continuously, spun him in his jumper seat until his eyes
crossed and then laughed, yelled at him, and slammed the wall loudly to scare him. He
then prevented Vicky D. from comforting or caring for Gabriel.
       The mother and appellant met at church in 2005. They were married in 2008. The
mother has a bachelor’s degree in human development and has worked as a preschool
teacher for many years.




3
       There is no information regarding Amber C., who was appellant’s third wife.

                                               3
       In 2009, Gabriel became a dependent of the court because Vicky D. was unable to
care for him due to his severe mental health issues. Reunification services were offered
to Vicky D., but they were not offered to appellant. Appellant’s whereabouts were
unknown at that time.
       In December 2009, Lydia and Deborah were adjudged dependents of the court in
Sacramento County due to physical and emotional abuse by E. Z. The girls were then
placed with appellant over the social worker’s objection, and the case was transferred to
the juvenile court in Santa Clara County.
       In May 2010, Lydia was placed into protective custody after appellant reported
that he could no longer care for her. Lydia remained a dependent of the court, and she
and appellant participated in family reunification services due to her emotional and
behavioral problems. In June 2011, the juvenile court placed Lydia with appellant and
ordered family maintenance services.
       In December 2010, it was reported that Deborah told friends that she was being
sexually abused by appellant. However, Deborah denied making this disclosure and the
referral was closed. A few days later, appellant successfully completed family
maintenance services and the juvenile court dismissed the case involving Deborah with
full custody to appellant.
       In October 2011, Lydia and Deborah were placed into protective custody after
appellant was arrested for sexually abusing Deborah. Deborah reported to her basketball
coach that appellant had been physically abusive in the past and that her life was a “living
hell” at home. After the coach contacted the police, Deborah told the investigating
officer that she had sexual intercourse with appellant 25 times and oral sex twice since
she was 14 years old. She also stated that appellant had threatened to “hurt” her and
“throw [her] into a mental institution” if she reported the abuse. When Deborah reported
the abuse, Lydia denied being sexually abused by appellant and claimed that Deborah
was lying. However, in December 2011, Lydia reported that she had been sexually

                                             4
abused by appellant as well. She also stated that she had said that Deborah was lying
because she was afraid of appellant due to his past threats. Lydia stated that she had
sexual intercourse with appellant more than 20 times and oral sex approximately five
times since she was 15 years old. Appellant had also threatened her if she reported the
abuse. The report includes a detailed account of appellant’s sexual abuse of Lydia and
Deborah.
       In addition, both Deborah and Lydia reported that appellant was verbally and
physically abusive to the mother. Appellant called the mother names and fought a lot
with her. Deborah described a fight between appellant and the mother after which the
mother told her that appellant had choked her. The mother also told Deborah that
appellant had “done it more than once.” Deborah heard the mother threaten to leave on
another occasion, and appellant said, “Do it, and I’ll kill you.”
       The jurisdiction/disposition report summarized appellant’s criminal history. In
1995, appellant was convicted of possession, manufacture, or sale of a dangerous weapon
(Penal Code, former § 12020, subd. (a)), a felony, after the police responded to a
domestic dispute and found appellant in his garage with nunchucks and a 12-inch hunting
knife with Lydia, who was then four months old. A witness stated that appellant was
“acting crazy and wasn’t thinking straight” and threatened to kill Lydia if anyone tried to
enter the garage to speak to him.
       In 1999, appellant was convicted of infliction of corporal injury on a spouse (Penal
Code, § 273.5, subd. (a)), a felony, after an incident in which appellant hit E. Z. several
times in the stomach and kicked her as she tried to flee. At that time, E. Z. reported other
incidents of abuse. She also stated that she was afraid that if she reported abuse,
appellant would beat her more. According to E. Z., appellant had a bad temper and took
his anger out on others. On one occasion, appellant threw their puppy and broke her leg.
       In 2005, appellant was convicted of infliction of corporal injury on a spouse (Penal
Code, § 273.5, subd. (a)), a misdemeanor, after Vicky D. reported that appellant had

                                              5
grabbed her and squeezed her arm with such force that she had a large bruise. She
described appellant as a “religious zealot,” who had ordered her to “submit” to him
because it was God’s word.
       The jurisdiction/disposition report also stated that the mother minimized the
domestic violence between her and appellant, denied that appellant had abused her in the
past, did not believe that appellant either sexually or physically abused any of his
children, and did not believe that she needed services to protect A.C. The mother also
“stated that she was aware of [appellant’s] domestic violence convictions in the past and
that he lost his parental rights to his first child, but she still [did] not believe that he was
abusive toward any of his ex-wives or other children.” The mother reported that she did
not know what she would do regarding A.C.’s living arrangements and his care when
appellant was released from custody. Based on the mother’s denial, the social worker
concluded that it was “very likely” that the mother would allow appellant to return to the
home, thereby placing A.C. at risk.
       An addendum report, dated March 22, 2012, stated that the mother and A.C. had
recently moved to San Mateo County. The social worker also informed the court that the
mother continued to deny any domestic violence between her and appellant and she did
not believe that Lydia and Deborah had been sexually abused by appellant. The mother
stated that she believed that appellant’s ex-wives had lied about abuse and that appellant
“has been nothing but wonderful to her and his children.” Attached to the report was a
copy of the second amended petition regarding Deborah, which the court had sustained
earlier that month.
       In June 2012, the Department filed a second amended petition. The second
amended petition added allegations that the juvenile court had sustained second amended
petitions and took jurisdiction of both Deborah and Lydia after finding that their reports
of threats and sexual abuse were true.



                                                6
       A second addendum report, dated July 24, 2012, stated that appellant was in jail
awaiting trial on charges that he sexually abused his daughters. The Department also
recommended that jurisdiction be completed and the case be transferred to San Mateo
County for disposition. Attached to the report was a copy of a minute order, dated
June 22, 2012, which stated that the allegations in the first amended supplemental
petition regarding Lydia were true.
       On August 17, 2012, the jurisdiction hearing was held. The
jurisdiction/disposition, addendum, and second addendum reports were admitted into
evidence. The only witness was Edwin Patrick, the supervising social worker, who
testified as an expert on risk assessment of dependent children. He testified that Susan
Lee was the investigative social worker, but she went on leave in late June. According to
Patrick, A.C. came to the attention of the Department because he had two half siblings
who were dependents of the court. Patrick never spoke to either appellant or the mother.
However, Lee consulted with him on a regular basis. Patrick also reviewed police reports
involving appellant and the dependency reports from Sacramento County.
       Patrick acknowledged that in cases where a father has sexually abused his
daughter, it is not common that the father has also sexually abused the son. However,
Patrick opined that A.C. was at risk of sexual abuse from appellant because “the
motivation is not sex, the motivation is domination and control.” He explained that
appellant “has exhibited a pattern of behavior that shows that he dominates and controls
his family.” He noted that appellant physically abused his previous wives, physically
abused the infant child Gabriel, sexually abused his two daughters, and physically abused
the mother. According to Patrick, the mother could not protect A.C. because she “doesn’t
believe anyone -- that [appellant] has harmed anyone and that the previous wives of
[appellant are] lying, the information about Gabriel is false, the testimony regarding
Debra and Lydia [] is a lie as well. [¶] However, the mother did disclose to Debra that
[appellant] physically abused her and threatened her, but the mother has since recanted.”

                                             7
Patrick concluded that the mother was “in severe denial” and was controlled by appellant,
which placed A.C. at risk if he was returned to the home. Patrick was not concerned that
the mother would abuse A.C. However, the mother had indicated that if appellant was
released from jail, she would allow him to return home. Patrick was also concerned that
if the petition was dismissed, the mother would leave with A.C. and reconnect with
appellant in the event that he was released from jail.
       Following argument, the juvenile court sustained the petition and stated: “What is
remarkable to me is, when I look at . . . the cases regarding sexual abuse, [appellant] falls
squarely in the aberrant behavior category. He has for over a 10-year period either done
physical or sexual harm to some member of his family. And I think the expert’s
testimony regarding risk assessment is quite on point when it talks about the dominion
and control exhibited by [appellant] toward his family members regardless of their age.
It doesn’t matter if they’re as young as Gabriel was or as old as his daughters were, his
behavior toward them has been violent.” The juvenile court also noted that it was
“absolutely uncontroverted” that the mother did not believe that appellant sexually
abused his daughters, physically abused two of his sons, and was violent towards his
ex-wives. The juvenile court concluded that the mother’s refusal to acknowledge
appellant’s behavior put A.C. at risk.
       On September 18, 2012, the juvenile court conducted the disposition hearing. The
juvenile court adjudged A.C. a dependent of the court and ordered that he be removed
from appellant’s custody. Family maintenance services were ordered for A.C. and the
mother, and the case was transferred to San Mateo County.




                                         II. Discussion
                                A.   Sufficiency of Evidence

                                              8
       Appellant contends that there was insufficient evidence to support jurisdiction
under section 300, subdivisions (b) and (j).
       “Section 300 jurisdiction hearings require a preponderance of the evidence as the
standard of proof. (§ 355, subd. (a).) In reviewing the sufficiency of the evidence on
appeal, we look to the entire record for substantial evidence to support the findings of the
juvenile court. We do not pass on the credibility of witnesses, attempt to resolve
conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we
draw all reasonable inferences in support of the findings, view the record in the light most
favorable to the juvenile court’s order and affirm the order even if there is other evidence
supporting a contrary finding. [Citations.] The appellant has the burden of showing there
is no evidence of a sufficiently substantial nature to support the order. [Citations.]” (In
re A.M. (2010) 187 Cal.App.4th 1380, 1387-1388 (A.M.).)
       In order to sustain a petition under section 300, subdivision (b), the juvenile court
must find that “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.” (§ 300, subd. (b).) The juvenile
court must determine “whether circumstances at the time of the hearing subject the minor
to the defined risk of harm. [Citations.] Thus, the past infliction of physical harm by a
caretaker, standing alone, does not establish a substantial risk of physical harm; ‘[t]here
must be some reason to believe the acts may continue in the future.’ [Citations.]” (In re
Rocco M. (1991) 1 Cal.App.4th 814, 824, fn. omitted.)
       Relying on In re Rubisela E. (2000) 85 Cal.App.4th 177, In re Maria R. (2010)
185 Cal.App.4th 48, and In re Alexis S. (2012) 205 Cal.App.4th 48, appellant argues that
there was insufficient evidence that A.C. was currently at substantial risk of harm since
his gender was different from that of his sexually abused siblings.
       We first note that other courts have held that male siblings of sexually abused
females are at risk of sexual abuse, because “aberrant sexual behavior by a parent places

                                                9
the victim’s siblings who remain in the home at risk of aberrant sexual behavior.” (In re
P.A. (2006) 144 Cal.App.4th 1339, 1347; accord In re Andy G. (2010) 183 Cal.App.4th
1405, 1414; In re Karen R. (2001) 95 Cal.App.4th 84, 90-91.)4 However, we need not
resolve which line of authority to follow, since the present case includes appellant’s
extensive history of violence against family members regardless of their age or gender.
       Here, the juvenile court had sustained petitions which included allegations that
appellant had engaged in more than 20 incidents of sexual intercourse with each of his
daughters during the past year and a half. That A.C. differed in age and gender from
Deborah and Lydia was not particularly relevant, because, as Patrick opined, appellant’s
“motivation [was] not sex, the motivation [was] domination and control.” He explained
that appellant had “exhibited a pattern of behavior that shows that he dominates and
controls his family.” The record fully supports Patrick’s opinion.
       Appellant had a significant history of violence against his children when they were
infants. In 1993, Stephen, who was 11 months old, became a dependent of the court due
to physical abuse perpetrated by appellant. Appellant’s parental rights to Stephen were
eventually terminated. In 1995, police officers responded to a domestic dispute in which
appellant, while armed, was threatening to kill Lydia, who was then four months old. In
2004, appellant was also physically and psychologically abusive to Gabriel, who was
then an infant. Despite this history of abuse and having been previously offered family
reunification and family maintenance services, there was no evidence that appellant had
attempted to ameliorate his violent tendencies towards children.
       In addition to physical abuse, appellant also exposed his children to domestic
violence. As In re Heather A. (1996) 52 Cal.App.4th 183 explained: “It is clear to this
court that domestic violence in the same household where children are living is neglect; it
is a failure to protect [the minors] from the substantial risk of encountering the violence

4
      This issue is currently under review by the California Supreme Court in In re I.J.,
review granted Sept. 19, 2012, S204622.

                                             10
and suffering serious physical harm or illness from it. Such neglect causes the risk.” (Id.
at p. 194.) Moreover, “ ‘[p]ast violent behavior in a relationship is “the best predictor of
future violence.” Studies demonstrate that once violence occurs in a relationship, the use
of force will reoccur in 63% of those relationships. . . . Even if a batterer moves on to
another relationship, he will continue to use physical force as a means of controlling his
new partner.’ [Citation.]” (In re E.B. (2010) 184 Cal.App.4th 568, 576.) Here, appellant
was convicted of infliction of corporal injury on a spouse in 1999 and 2005. In addition
to physically abusing E. Z. and Vicky D., appellant was physically abusive to Vicky R.
and the mother.5 Both Deborah and Lydia observed violence between appellant and the
mother. Given appellant’s history of abusing women, there was a substantial risk that
A.C. would be exposed to domestic violence.
       In sum, the record establishes that appellant physically abused his two infant sons,
threatened to kill his infant daughter, exposed his children to domestic violence by
physically abusing three ex-wives and the mother, and sexually abused his two daughters.
Despite overwhelming evidence, the mother refused to acknowledge that appellant had
engaged in any of this behavior. Thus, there was substantial evidence to support the
juvenile court’s finding that there was a substantial risk that A.C. would suffer serious
physical harm as a result of his parent’s inability to protect him.
       Appellant also argues that A.C. was not at substantial risk of harm because he was
incarcerated. This same argument was rejected in In re Carlos T. (2009) 174 Cal.App.4th
795. In that case, the Court of Appeal stated: “It certainly is true that at that time father
had no immediate access to [the minors] due to his incarceration. But father had not yet
5
        Appellant contends that there was no risk to A.C., because the mother reported
that there was no domestic violence between her and appellant. There is no merit to this
contention. Though the mother claimed that there was no domestic violence between her
and appellant, both Deborah and Lydia reported incidents of domestic violence involving
appellant and the mother. Since this court must “view the record in the light most
favorable to the juvenile court’s order,” we disregard the mother’s claim. (A.M., supra,
187 Cal.App.4th at p. 1388.)

                                              11
been sentenced on his sexual molestation convictions, and he still had the right to appeal
those convictions. [¶] If father’s convictions were reversed, there is a possibility that
father would be released from custody, and there is every reason to believe that father
would resume his sexual abuse of [the minors] without the state intervening to prevent
him from obtaining access to them.” (Id. at p. 806.) Similarly, here, appellant has denied
the charges and there remains the possibility that he would be released from custody.
       Since we have found that there was substantial evidence to support the juvenile
court’s finding of jurisdiction under section 300, subdivision (b), we need not consider
the sufficiency of the evidence to support its finding under section 300, subdivision (j).
(In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)


                                B. Admissibility of Evidence
       Appellant next contends that the juvenile court erred in admitting hearsay
evidence.
       On cross-examination, Patrick was asked if he could identify any statements in the
reports in which the mother had indicated that she would let appellant back into the home
if he were released from custody. He was unable to do so. He then testified, “But I
distinctly remember having a conversation with Susan Lee regarding the mother -- the
conversation with her where she’s indicated that she will allow the father back into the
home.” Appellant objected to the testimony as hearsay, noting that “[i]f that was
something that was found by the social worker to come under the hearsay exception, it
should have been in the social study.” The juvenile court noted that the
jurisdiction/disposition report stated Lee’s opinion that it was “very likely” the mother
would allow appellant to return to the home and have unsupervised contact with A.C.
The juvenile court overruled the objection.
       Evidence Code section 1200 states in relevant part that “ ‘[h]earsay evidence’ is
evidence of a statement that was made other than by a witness while testifying at the

                                              12
hearing and that is offered to prove the truth of the matter stated.” Hearsay is
inadmissible, unless it falls within an exception to the general rule. (Evid. Code, § 1200,
subd. (b).) Evidence Code section 1201 authorizes the admission of multiple hearsay
evidence under certain circumstances. This statute provides that “[a] statement within the
scope of an exception to the hearsay rule is not inadmissible on the ground that the
evidence of such statement is hearsay evidence if such hearsay evidence consists of one
or more statements each of which meets the requirements of an exception to the hearsay
rule.” (Evid. Code, § 1201.) Exceptions to the hearsay rule include any admissions by a
party. (Evid. Code, § 1220.) Thus, the mother’s statements to Lee were admissible if
Lee had been testifying or if they had been included in the reports. (See § 355, subd. (b).)
Since Lee did not testify and the mother’s statements to Lee were not included in the
reports, the mother’s statements to Lee were not admissible to prove that she would allow
appellant to return to the home.
       However, expert testimony in the form of an opinion can be based on information
“made known to him at or before the hearing, whether or not admissible, that is of a type
that reasonably may be relied upon by an expert in forming an opinion upon the subject
to which his testimony relates.” (Evid. Code, § 801, subd. (b).) “Hearsay relied upon by
experts in formulating their opinions is not testimonial because it is not offered for the
truth of the facts stated but merely as the basis for the expert’s opinion.” (People v.
Cooper (2007) 148 Cal.App.4th 731, 747.) Here, the parties stipulated that Patrick would
testify as an expert on risk assessment of dependent children. In forming his opinion as
to the risk to A.C., he relied on the social worker’s statement to him that the mother had
told her that she would allow appellant to return home if he was released from custody.
Patrick reasonably relied on this statement in forming his opinion that A.C. was at risk of
serious harm.
       Even assuming that the juvenile court erred in admitting this evidence, it was not
prejudicial. Where an alleged error violates state evidentiary law, this court examines

                                             13
whether “ ‘ “ ‘it is reasonably probable a result more favorable to the appellant would have
been reached absent the error.’ ” ’ [Citations.]” (In re Jordan R. (2012) 205 Cal.App.4th
111, 134.) Here, the jurisdiction/disposition report stated that the mother minimized the
domestic violence between her and appellant, did not believe that appellant sexually or
physically abused any of A.C.’s half siblings, and did not believe that she needed to
engage in services to protect A.C. The mother also “stated that she was aware of
[appellant’s] domestic violence convictions in the past and that he lost his parental rights
to his first child, but she still [did] not believe that he was abusive toward any of his ex-
wives or other children.” Thus, the mother had no reason not to reunite with appellant if
he were released from custody. Accordingly, it is not reasonably probable that the result
would have been more favorable to appellant if her statement had not been admitted.




                                              14
                                 III. Disposition
     The order is affirmed.




                                    _______________________________
                                    Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




                                      15
