Persons Coming Under the Juvenile Court Law. San Diego Cnty. Health v. Carlos R. (In re Jordan R.)
| Citation | 205 Cal.App.4th 111,140 Cal.Rptr.3d 222 |
| Decision Date | 27 March 2012 |
| Docket Number | D059985. |
| Parties | In re JORDAN R., et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Appellant, v. Carlos R., Defendant and Appellant; L.R., Defendant and Respondent; Nicholas R., Appellant. |
| Court | California Court of Appeals |
205 Cal.App.4th 111
140 Cal.Rptr.3d 222
In re JORDAN R., et al., Persons Coming Under the Juvenile Court Law.
San Diego County Health and Human Services Agency, Plaintiff and Appellant,
v.
Carlos R., Defendant and Appellant;
L.R., Defendant and Respondent;
Nicholas R., Appellant.
No. D059985.
Court of Appeal, Fourth District, Division 1, California.
March 27, 2012.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Appellant.
Patricia K. Saucier, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Carlos R.
Andrea R. St. Julian, San Diego, under appointment by the Court of Appeal, for Defendant and Respondent.
Terence M. Chucas, San Diego, under appointment by the Court of Appeal, for Appellant.
IRION, J.
This appeal and cross-appeal concerns two minor children, Jordan R. and Nicholas R., who are the daughter and son of Carlos R. and his wife, L.R. Carlos appeals the juvenile court's findings and orders adjudicating his daughter, Jordan, a dependent of the juvenile court under Welfare and Institutions Code1 section 300, subdivision (d). The petition alleged Jordan was at risk of sexual abuse because Carlos had sexually abused a niece who was living in the family home. At the jurisdictional hearing Carlos sought to introduce the results of a polygraph examination2 in which the examiner had concluded that Carlos was truthful when he denied that he had sexually abused his niece, but was precluded from doing so after the juvenile court found that polygraph examination evidence was not generally accepted in the relevant scientific community under Kelly / Frye.3 He contends the juvenile court erred when it excluded the results of his polygraph examination. Carlos also argues the juvenile court's finding that Jordan was at substantial risk of sexual abuse is not supported by substantial evidence.
The San Diego County Health and Human Services Agency (Agency) and the minor child, Nicholas, cross-appeal the juvenile court's finding that Nicholas was not at substantial risk of sexual abuse under section 300, subdivision (d) and challenge the dismissal of the dependency petition filed on his behalf.
FACTUAL AND PROCEDURAL BACKGROUND
Carlos R. and L.R. (the R.'s) are the parents of daughter Jordan, now seven years old, and son Nicholas, now age three
(together, children). Carlos is employed as an investigator. L.R. works with at-risk teenagers and is a mandatory child abuse reporter. They have no criminal, substance abuse or child protective histories.
S.O., born in early 1997, is the R.'s niece. In November 2010, at her parents' request, Carlos and L.R. took S.O. into their home after she was expelled from school for throwing a chair at the principal. She had exhibited other behavioral problems, including stealing, running away, cutting herself and an attempted suicide. S.O. stayed with the R.'s during the week and returned to her mother's home on weekends.
On January 17, 2011, shortly before she was scheduled to return to the R.'s home for the school week, S.O. alleged that Carlos had sexually abused her. S.O. said that when she arrived at the R.'s, Carlos told her he would teach her to wrestle. At first, Carlos taught her self-defense and other martial arts moves. Occasionally, his hands or arms would "bump into, or lift her breast or buttocks." S.O. believed this contact was accidental. After a few weeks, S.O. said the wrestling began to "get weird." On January 13, after returning home from the gym, S.O. said Carlos showed her pornography on television, asked her for a lap dance and oral sex, which she performed, licked her breasts and genitals, and started to masturbate in front of her. Carlos told her not to tell anyone about their sexual activities.
On January 18, 2011, a detective with the San Diego Police Department (SDPD) asked S.O. to make a pretext call to Carlos. When S.O. said she was not sure she should tell anyone because Carlos had told her not to say anything, Carlos hung up the telephone.4
Carlos was arrested and charged with lewd and lascivious acts with a minor and oral copulation of a minor. He denied sexually abusing S.O.
In February 2011, the Agency filed petitions under section 300, subdivision (d), on behalf of Jordan and Nicholas. The Agency alleged there was a substantial risk that the children would be sexually abused because Carlos had sexually abused S.O. from January 2011 to present by touching her breasts and buttocks, masturbating in front of her and participating in oral copulation. The Agency further alleged that L.R., the children's mother, was aware of S.O.'s disclosures but did not believe that Carlos had molested her.
Carlos moved out of the family home. The children were detained with L.R.
Social worker Marisol Barragan interviewed Carlos on February 18. She asked him why he did not take a polygraph examination at the police station. Carlos
said the police told him they would not release him from custody even if he passed the examination. On March 10, Carlos voluntarily submitted to a private polygraph examination (the polygraph examination).5 In her report prepared for the jurisdictional and dispositional hearings, Barragan reported that L.R. informed her that Carlos had passed the polygraph examination.
The section 300 hearing was heard on seven days from May 16 to June 19.6 The juvenile court admitted the Agency's reports and other exhibits in evidence, and heard the testimony of Carlos; L.R.; S.O.; social workers Barragan and James Marcuzzo; Sean Soriano, a criminalist with the SDPD; and others.
In reports admitted in evidence, Barragan reported her interviews with family members. L.R. said Carlos took an interest in helping S.O. In November 2010, L.R. had told Carlos to stop wrestling with S.O. because it was "not appropriate." She was afraid S.O. would get hurt.
Six-year-old Jordan identified the private areas of her body and denied any inappropriate touching. She said her father liked to wrestle. Jordan heard her mother tell her father to stop wrestling with S.O., but they continued to wrestle when L.R. was not at home. Jordan saw Carlos lying on top of S.O.
Carlos acknowledged to Barragan that he wrestled with S.O. Carlos said the wrestling move that Jordan described was called an "arm triangle." Carlos
and L.R. believed that S.O. was motivated to lie about being sexually abused because she wanted to return home, where she was not supervised and could dress in the style of "gang clothing" that she was not permitted to wear while living in their home.
Carlos testified that he met S.O. when she was approximately five years old. Because S.O.'s home life was chaotic, the R.'s often included her in their family vacations and outings. Carlos acknowledged that shortly after S.O. came to live with them, he started wrestling with her. He also wrestled with Jordan and Nicholas. Carlos continued to wrestle with S.O. after L.R. told him to stop. Carlos said S.O. was a gifted athlete and wanted to learn mixed martial arts. He and L.R. believed that S.O.'s participation in athletic activities would help stabilize her. S.O. started going to the gym with Carlos on Tuesday, January 11.
Carlos testified that on Thursday, January 13, he and S.O. returned home from a kickboxing class at approximately 8:45 p.m. Carlos told S.O. to wait before showering because she was overheated. He left to shower. S.O. was watching a movie called "The Ring." After S.O. showered, she returned to watch the movie. He changed the television channel because there was a bare-breasted woman in the movie. Carlos denied that he asked S.O. questions of a sexual nature or touched her in any way.
L.R. testified she had been involved with S.O. since S.O. was approximately two years old. L.R. asked Carlos to stop wrestling or roughhousing with S.O. L.R. saw Carlos lying on top of S.O. She did not believe that was appropriate behavior with a 13–year–old girl. She told Carlos to stop. Carlos and S.O. continued to practice mixed martial arts moves, karate moves and "ninja warrior kind of stuff" in
her presence but did not wrestle or roughhouse.
On January 13, L.R. was sleeping when Carlos and S.O. returned home from the gym. He turned on the bedroom light to get some clothes, kissed her cheek and took a shower. The next morning, everything was normal. S.O. was fine. L.R. did not believe Carlos sexually abused S.O., and she did not believe he presented any risk of sexual abuse to Jordan or Nicholas.
S.O. testified that L.R. was like a mother to her and Carlos was cool and fun. For example, when he refereed at basketball games, he would take her with him. She and Carlos were buddies. She started wrestling with Carlos soon after she arrived at their home. He watched wrestling on television and had a book with moves in it. There was a move in the book where one person was on the ground and the other person was on top. He asked S.O. if she
would like to try that move. They started wrestling from that position. Carlos's body was completely covering her body. Jordan tried to help her and climbed on top of Carlos's back. Carlos pushed Jordan off his back and she started crying. Carlos continued to wrestle with S.O. When S.O. told him Jordan was crying, Carlos kissed S.O. on her neck before he got up. After that incident, Carlos would just grab her and start wrestling. S.O. testified that Carlos wrestled with Jordan all the time. He only wrestled with Nicholas a few times.
S.O. said that on January 13, she and Carlos went to the gym. When they returned home, Carlos told S.O. to relax before she showered because she had had a hard workout. They sat down on the couch. Carlos turned on the television. He changed the channel to a show in which there were two naked girls and...
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