Cindy L., In re

• Court: California Supreme Court
• Writing for the Court: MOSK; GEORGE; BROWN
• Citation: Cindy L., In re, 69 Cal.Rptr.2d 803, 17 Cal.4th 15, 947 P.2d 1340 (Cal. 1997)
• Decision Date: 29 December 1997
• Docket Number: No. S055368,S055368
• Parties: , 947 P.2d 1340, 97 Cal. Daily Op. Serv. 9718, 97 Daily Journal D.A.R. 15,543 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.

Page 803

69 Cal.Rptr.2d 803

17 Cal.4th 15, 947 P.2d 1340, 97 Cal. Daily Op. Serv. 9718,

97 Daily Journal D.A.R. 15,543

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. S055368.

Supreme Court of California.

Dec. 29, 1997.

Stephanie M. Davis, under appointment by the Supreme Court, Marina Del Rey, for Defendant and Appellant.

De Witt W. Clinton, County Counsel, Joe Ben Hudgens and Sterling Honea, Principal Deputy County Counsel, Scott Miller, Deputy County Counsel, and Gary P. Gross, Montery Park, for Plaintiff and Respondent.

John J. Sansome, County Counsel, San Diego, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, as Amici Curiae on behalf of Plaintiff and Respondent.

MOSK, Justice.

In In re Carmen O. (1994) 28 Cal.App.4th 908, 921, 33 Cal.Rptr.2d 848 (Carmen O.), the Court of Appeal created what it called a "child dependency hearsay exception" (sometimes the child dependency exception). This exception allows, under certain conditions, admission of out-of-court statements by alleged victims of child sexual abuse during a hearing to determine whether a child is a dependent of the juvenile court. (See Welf. & Inst.Code, § 300.) ¹ In the present case we are called upon to determine whether the child dependency exception is applicable when the court decides that the child is not competent to testify because he or she is unable to understand the duty to tell the truth or does not possess the ability to distinguish between truth and falsity. (See Evid.Code, § 701, subd. (a)(2).) In order to answer this question, we must also address the preliminary question of whether the child dependency exception enunciated in Carmen O. is valid.

We conclude as to the latter question that the Carmen O. court's creation of a child dependency exception in sexual abuse cases was well founded, but that the exception should be more fully developed to provide specific due process protections for parents in child dependency hearings.

We further hold that a finding that a child is not competent to differentiate between truth and falsehood or to understand the duty to tell the truth at the time he or she is prepared to testify should not be an absolute bar to the admission of the child's hearsay testimony, but only one circumstance to be considered in determining whether the child's statement is reliable. We also conclude that the Court of Appeal in the present case was correct in upholding the juvenile court's admission of out-of-court statements of an alleged child sexual abuse victim during the dependency hearing.

I. FACTUAL AND PROCEDURAL HISTORY

Cindy L. (Cindy) was born on October 15, 1990. Her father, Edgar L. (Edgar) and mother, Sonia M. (Sonia) separated in January 1994, and Cindy continued to live with Sonia.

Events in August of 1994 caused the Los Angeles County Department of Children and Family Services (Department) to initiate proceedings under section 300 to have Cindy be adjudged a dependent child of the court. ² When mediation failed, a four-day hearing was held in March of 1995. During that hearing, the following evidence was presented.

In August 1994, Cindy attended Thomas Preschool. Yolanda Herrera, a teacher's aide at the school, testified that on August 12, 1994, during nap time, she 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 in Spanish, Cindy's primary language, "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 referred the matter to the Department on August 16.

Mary Newman, a social worker, interviewed Cindy on that date at the preschool through an interpreter. When Newman asked Cindy, "Has anyone touched you in private places?," Cindy replied, "Yes, Poppie," and 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. Cindy only pointed to her vagina and said "Papi." The police investigators could not determine where or when the alleged abuse occurred.

On the same date, Cindy was directed to Westside Hospital, where she was examined by Dr. Stephan Greene. According to a report by Dr. Greene, 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.

Social worker Henry Olea interviewed Cindy on October 20. 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 where this activity happened, Cindy replied that it occurred in a bed. Thereafter, Cindy became nonresponsive to Olea's questions.

At the hearing, the Department twice tried unsuccessfully to obtain testimony from Cindy. Cindy was generally nonresponsive to questions, and in response to questions regarding who, if any, "touched her pee-pee" she replied, "The clown." After the first attempt to obtain Cindy's testimony, Edgar contended that she was not competent to testify. With respect to the issue of 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. Olea testified only that he had determined Cindy believed lies were bad.

At the conclusion of the hearing, the juvenile court found that Cindy was not competent as a witness 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." It concluded that Cindy was not competent when she had made her earlier statements to Newman and Olea. It also concluded that such statements, although generally competent evidence (see Malinda S., supra, 51 Cal.3d 368, 272 Cal.Rptr. 787, 795 P.2d 1244), were not "legally admissible" within the meaning of section 355 due to Cindy's incompetence, relying on the holding in In re Daniel Z. (1992) 10 Cal.App.4th 1009, 13 Cal.Rptr.2d 139 (Daniel Z.), that a child incompetent to testify due to an inability to distinguish between truth and falsity is presumed to be incompetent at the time the hearsay statement was made. It therefore disregarded the statements in question.

Nonetheless, the court concluded that Cindy's statements to Herrera were admissible under the child dependency exception to the hearsay rule announced in Carmen O., supra, 28 Cal.App.4th 908, 33 Cal.Rptr.2d 848, because under that exception no finding of competency is required. On the basis of this evidence, as well as Dr. Greene's medical report, and the testimony bearing on Edgar's opportunity to abuse Cindy, the 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, it ordered family reunification services for Edgar, including sexual abuse counseling and visitation monitored by someone other than Sonia, followed by a six-month review.

The Court of Appeal affirmed, concluding that the juvenile court had not erred in applying the child dependency exception created by Carmen O., despite the latter's determination that Cindy was incompetent to testify. The Court of Appeal declared that "the child dependency ... exception probes for unreflective and spontaneous truth-telling, and is not founded on the declarant's regard for the duty of truth-telling." We granted review.

II. THE CHILD DEPENDENCY EXCEPTION

Before we consider whether the child dependency exception articulated in Carmen O., supra, 28 Cal.App.4th 908, 33 Cal.Rptr.2d 848, was properly applied in this case, we must first determine whether that exception was validly created. In order to do so, it is useful to review the special evidentiary rules for dependency hearings as construed by this court in Malinda S., supra, 51 Cal.3d 368, 272 Cal.Rptr. 787, 795 P.2d 1244.

At the time this matter was adjudicated, section 355 provided that in a section 300 jurisdictional hearing, "any matter or information relevant and material to the circumstances or acts which are alleged to bring [the minor] within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300." (Stats.1987, ch. 1485, § 34, p. 5621.) We concluded in Malinda S. that a "social study" prepared by a social worker pursuant to sections 281 and 358 fits within the class of "legally admissible" evidence on which a court can rely in a jurisdictional...