Adamson v. Department of Social Services

• Decision Date: 27 December 1988
• Docket Number: No. A041273,A041273
• Citation: 254 Cal.Rptr. 667,207 Cal.App.3d 14
• Parties: Cindy L. ADAMSON et al., Plaintiffs and Appellants, v. DEPARTMENT OF SOCIAL SERVICES, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 667

254 Cal.Rptr. 667

207 Cal.App.3d 14

Cindy L. ADAMSON et al., Plaintiffs and Appellants, v. DEPARTMENT OF SOCIAL SERVICES, Defendant and Respondent.

No. A041273.

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

Dec. 27, 1988.

As Modified on Denial of Rehearing Jan 15, 1989.

Certified For Partial Publication. ^*

Review Denied March 16, 1989.

Sedgwick, Detert, Moran & Arnold, Nicholas W. Heldt, San Francisco, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Stephanie Wald, Deputy Atty. Gen., San Francisco, for defendant and respondent.

CHANNELL, Associate Justice.

After respondent state Department of Social Services revoked the license of appellant Daisy Hill Children's Center, Inc., to operate a child day care center, Daisy Hill and appellant Cindy L. Adamson petitioned for a writ of administrative mandate. (Code Civ.Proc., § 1094.5.) The petition was denied. Adamson and Daisy Hill appeal, contending that (1) the department lacked jurisdiction to revoke Adamson's license; (2) the trial court's finding that a child had been molested on the premises of the child care center was not supported by substantial evidence; (3) the department could not revoke the license on the basis of evidence of child molestation occurring off the premises of the child care center; (4) evidence of these off-site incidents should not have been admitted; and (5) the license revocation was motivated by Adamson's marriage to an alleged child molester, in violation of her constitutional right to marry. We affirm the judgment.

I. FACTS

In 1982, respondent state Department of Social Services issued a license to appellant Cindy Adamson to operate a Redwood City child day care center. Adamson and her husband Harry were officers of appellant Daisy Hill Children's Center, Inc. Harry attended the center almost daily. ¹ In 1985, Adamson's license was renewed through August 1988. When the department discovered that it should have issued its initial license to Daisy Hill rather than Adamson, it asked Adamson to submit a new application for a corporate license. Before she did so, the department issued a license to the Daisy Hill corporation that was valid through August 1988.

In 1985, the department became suspicious that Harry might be a child molester. It was suggested that he stay away from the child care center during business hours. For the most part, Harry abided by this suggestion. Adamson offered to enter into an agreement barring Harry from the premises, but this offer was never accepted.

In February 1987, ² the department filed an accusation seeking to revoke Daisy Hill's license. (See former Health & Saf.Code, § 1596.885, subd. (c).) ³ It also issued an order for temporary suspension of the license pending hearing, based on a finding that conduct inimical to the health, welfare and safety of the children and the public had occurred. Adamson was directed to cease operating Daisy Hill. In April, a hearing was conducted before an administrative law judge. (See § 1596.887; Gov.Code, §§ 11500-11528.) The judge heard evidence of Harry's molestations of four girls--one at the child care center and three at other locations. Harry was never convicted of any criminal offense, but the judge determined that molestations had occurred over a 10-year period. The judge also determined that Adamson knew of some of this conduct and gave Harry her tacit approval of it. The judge found that Adamson was more concerned about the fate of her marriage and her license than about the harm done to these molested children. The judge found that Adamson's individual license had been terminated as a matter of law when the corporate license had issued and proposed that the Daisy Hill license be revoked; the following month, the department did so.

In September, Adamson and Daisy Hill petitioned for a writ of administrative mandate directing the department to set aside its decision to revoke the license. The trial court issued an alternative writ. After hearing, the court used its independent judgment, ⁴ discharged the alternative writ, and denied the peremptory writ. (Code Civ.Proc., § 1094.5, subd. (c).) In addition to issuing its own findings, the trial court adopted the findings of the administrative law judge.

II. JURISDICTION ^**

III. EVIDENTIARY ISSUES

A. On-Site Incident

Adamson and Daisy Hill contend that the trial court's finding that a child had been molested at the child care center was not supported by substantial evidence. ⁵ The trial court found that Harry had molested a four-year-old girl by placing or attempting to place his penis in her mouth. This incident occurred at Daisy Hill. When her mother withdrew the girl from the center, Adamson did not inquire about this decision, nor did she exhibit any concern for the child's welfare when the girl accused Harry of molesting her. The court specifically found that inadequate supervision resulted in the child's molestation.

As a preliminary matter, Adamson and Daisy Hill challenge the child's competency to testify. The girl was five years old when she gave her videotaped testimony. The trial court found that the child was competent to testify.

As a general rule, every person is qualified to be a witness, regardless of age. (Evid.Code, § 700; see 2 Witkin, Cal.Evidence (3d ed. 1986) Witnesses, § 1053, p. 1000.) One is disqualified as a witness in two circumstances--if he or she is incapable of expressing himself or herself concerning the matter so as to be understood; or if he or she is incapable of understanding the witness's duty to tell the truth. (Evid.Code, § 701, subd. (a).) The party challenging a witness's qualification has the burden of proving disqualification. (Id., § 405, Comment; see 2 Witkin, Cal.Evidence, supra, § 1052, pp. 999-1000.) Once the trial court determines the competency of a witness, this decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (People v. Willard (1983) 155 Cal.App.3d 237, 239, 202 Cal.Rptr. 100.)

We have reviewed the child's testimony. Parts of it were inherently incredible--a fact that the trial court noted when it found her competent to be a witness. However, the fact that a very young witness makes inconsistent or exaggerated statements does not indicate an inability to perceive, recollect, and communicate or an inability to understand the duty to tell the truth. (See People v. Willard, supra, 155 Cal.App.3d at p. 240, 202 Cal.Rptr. 100.) The child's competency depends on these factors alone; questions about whether aspects of her testimony were believable are questions of credibility for the trier of fact. They are not relevant to the issue of her competency to testify. (See People v. Hall (1984) 157 Cal.App.3d 538, 545, 223 Cal.Rptr. 267; People v. Willard, supra, at p. 240, 202 Cal.Rptr. 100.) The trial court did not abuse its discretion by permitting this child to testify.

Adamson and Daisy Hill also challenge the sufficiency of the evidence of the trial court's finding that this child was molested while under their care. When findings are attacked for insufficiency of evidence, the power of the appellate court begins and ends with a determination of whether there is any substantial evidence to support them. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn from them. (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370, 210 P.2d 757, disapproved on another point in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2, 44 Cal.Rptr. 767, 402 P.2d 839; Bravo v. Buelow (1985) 168 Cal.App.3d 208, 211, 214 Cal.Rptr. 65.) Adamson and Daisy Hill attack the credibility of the witness, but, on appeal, they may not do so. (Ibid.) Considering the entire record on appeal and indulging in the presumptions that we must make, we are satisfied that there was substantial evidence to support the trial court's finding that Harry molested this child.

B. Off-Site Incidents

Adamson and Daisy Hill contend that the department was not authorized to revoke the license on the basis of three accusations of child molestation that did not occur at the Daisy Hill child care center. They contend that there was no evidence of misconduct occurring " 'in the operation or maintenance' " of the child care center. (Former § 1596.885, subd. (c).) ⁶

In 1987, the challenged statute was amended to delete the reference to conduct occurring "in the operation or maintenance" of the child care center. (Compare Stats.1986, ch. 1016, § 9, p. ---- and Stats.1984, ch. 1615, § 9, p. 5749.) We have already found that there is sufficient evidence to support the finding that one child was molested while under Adamson's supervision. (See part A, ante.) It could be argued that this evidence, standing alone, justifies revocation of the license, making discussion of this issue unnecessary. (See former § 1596.885, subd. (c).) However, we will address the issue on the merits. We begin by summarizing the evidence of each of the three off-site molestations.

The first witness was a 27-year-old woman who had been the Adamsons' foster child for more than 8 years. Beginning when she was thirteen, Harry began massaging her breasts and penetrating her vagina with his finger; these incidents occurred on a daily basis for three and a half years. When the girl was approximately 16, Harry placed his penis in the child's mouth. Adamson initially denied knowing of these incidents, but later admitted that she believed that they had occurred. She told officials that she did not want to jeopardize her marriage or her license.

The second witness was a 20-year-old girl. For three years, beginning at age fourteen, Harry regularly fondled her breasts and kissed her. These incidents occurred about twice a month when the child spent the night at the Adamson house. Harry...