Child hearsay exception reaches DVPA proceedings. . .

In partial affirmance, the Fourth District held that the child dependency hearsay exception approved by the California Supreme Court in In re Cindy L. applies in proceedings under the Domestic Violence Prevention Act (DVPA) when the alleged abuse involves the sexual abuse of a minor; thus, the trial court did not abuse its discretion by admitting wifes testimony recounting the child’s out-of-court statements describing husbands sexual abuse.

In May 2023, M.P. filed a request for a domestic violence restraining order (DVRO) against her husband, M.C., seeking an order prohibiting him from contacting her, their shared daughter (S.R.), and M.P.’s other two daughters from a previous relationship (K.R. and D.R.). This request was filed in a dissolution proceeding that M.P. had initiated in July 2022.

The child's disclosure of abuse. . .

In her supporting declaration, M.P. stated that K.R., who was 13 years old at the time, told her that M.C. hugged her and then "'took his hands and placed it in her pants and started touching her vagina.'" K.R. further stated this incident made her feel "'very uncomfortable and scared.'" The next day, after seeing K.R. distraught, K.R.'s teacher contacted the police, a school counselor, and M.P. Police and the school counselor then interviewed K.R. in M.P.'s presence. During that interview, K.R. described both the abuse that occurred the day before and an earlier incident from two years prior. Regarding the earlier incident, K.R. stated that M.C. "'touched her breasts and also touched her vagina while sticking his fingers inside her vagina.'" K.R. also said that M.C. had threatened to deport her and falsely accuse her of stealing if she ever told M.P. about the abuse.

At the outset of the evidentiary hearing on the DVRO request, M.C.'s counsel objected to the admission of K.R.'s statements in M.P.'s declaration on hearsay grounds. The trial court overruled the objection. M.C. did not attempt to subpoena K.R. or call her as a witness. Nor did M.C. subpoena any other person to whom K.R. had made the statements. During her testimony, M.P. again described K.R.'s statements. M.C.'s counsel renewed the hearsay objection, but the trial court ruled the statements were admissible per Ev C. §1250 [statements of the declarant’s then-existing state of mind are admissible as hearsay exceptions]. The trial court also took judicial notice of a pending criminal case against M.C. arising from K.R.'s allegations. M.C.'s counsel objected, arguing the trial court could take notice only of the existence of the criminal case, not the truth of the allegations contained . The trial court overruled the objection.

On March 15, 2024, the trial court (Orange County's Claustro) issued the restraining order against M.C., prohibiting him from having specified contact with M.P., K.R., D.R., and S.R. The trial court found K.R.'s statements describing M.C.'s sexual abuse disturbed M.P.'s peace and, therefore constituted an act of abuse against M.P., as well as an act of sexual abuse against K.R. The trial court also granted sole legal and physical custody of S.R. to M.P. and permitted M.C. to have professionally monitored visitation with S.R. once a month for three hours. M.C. requested more frequent visitation with S.R. noting that there were no allegations that he has sexually abused her. The trial court denied that request, reasoning that because S.R. spoke only Spanish, it would "'be near impossible for a monitor to monitor her conversations.'" The trial court further stated that until S.R. learned "'to speak English where monitors can, in fact, understand and listen to the child and make sure and prevent any type of inappropriate contact between the child and the father, it's this Court’s belief that the most contact that [M.C.] should have with [S.R.] is three hours of visitation per month moving forward.'" M.C. appealed, and the Fourth District partially affirmed.

The Fourth District first concluded that the trial court erred in admitting K.R.'s statement for the nonhearsay purpose of showing that M.P. heard the statements and was disturbed by them. The panel nevertheless held that the statements were admissible under the child dependency hearsay exception. The justices explained that this exception was judicially created by the Court of Appeal in In re Carmen O. (1994) 28 Cal.App.4th 908, 33 Cal.Rptr.2d 848. There, a father appealed a juvenile court ruling removing his children from his custody after the court found that he had sexually abused his four-year-old daughter. Although the child did not testify, her statements describing the abuse were introduced through her sister and grandfather. In affirming, the Court of Appeal recognized a hearsay exception in dependency cases for minors' out-of-court statements describing abuse, reasoning that children are often too afraid to testify.

The California Supreme Court later approved that exception in In re Cindy L. (1997) 17 Cal.4th 15, 69 Cal.Rptr.2d 803. In Cindy L., the high court held that Ev C §1200(b) authorizes courts "'to create hearsay exceptions for classes of evidence for which there is a substantial need, and which possess an intrinsic reliability that enable them to surmount constitutional and other objections that generally apply to hearsay evidence.'" The Supreme Court reasoned that, without such an exception, important and reliable evidence necessary to protect children from abusive family relationships would be excluded.

The justices found the reasoning of Cindy L. equally applicable in the DVPA context. In such proceedings, the minor victim will often have been abused by a parent or close family member. In addition, because parties in DVPA cases are often self-represented, a minor victim may otherwise face direct cross-examination by the alleged abuser without the protection of independent counsel. The justices also reasoned that, because the Legislature authorized trial courts to issue restraining orders based on the requesting party's affidavit or testimony, the statutory scheme contemplates some reliance on out-of-court statements, including statements by minors. Finally, the justices noted that DVPA proceedings are not subject to heightened pleading or proof requirements. Instead, they are governed by the preponderance of the evidence standard. In the panel's view, this reflected a legislative preference for broad trial court discretion and protection of abuse victims over rigid procedural and evidentiary limitations.

In concluding the child dependency hearsay exception applies when a restraining order is sought based on the sexual abuse of a minor, the panel rejected several of M.C.'s arguments. First, it rejected his contention that the exception recognized in Carmen O. and Cindy L. was limited to dependency proceedings. The justices explained that the Supreme Court in Cindy L. did not rely on procedural safeguards or statutory features unique to the dependency system when recognizing the exception. Second, the panel rejected M.C.'s argument that DVPA proceedings are governed by the ordinary rules of evidence, including Ev. C. §1360. The justices noted that the rules of evidence also apply in dependency proceedings and do not preclude appellate courts from recognizing hearsay exceptions in appropriate circumstances.

Due process safeguards. . .

The panel also rejected M.C.'s argument that application of the hearsay exception in this case violated due process. The Supreme Court in Cindy L. identified three requirements to ensure that admission of a minor's out-of-court statements comports with due process: (1) the time, content, and circumstances of the statements must provide sufficient indicia of reliability; (2) the child must either be available for cross-examination or there must be some evidence corroborating the child’s statements; and (3) the opposing party must receive adequate notice that the statements will be introduced.

According to the panel, K.R.'s statements satisfied each of these requirements. First, although she made the statements on different dates, in different settings, and to different people, her descriptions of the abuse remained consistent. In addition, M.C. was represented at the evidentiary hearing and had an opportunity to cross-examine M.P. regarding the time, content, and circumstances of K.R.'s statements. The justices added that the trial court found M.P. credible, and there was no evidence that either K.R. or M.P. had a motive to fabricate the allegations.

Second, the record did not show that K.R. was unavailable for cross-examination. Indeed, M.C. made no attempt to subpoena K.R., call her as a witness, or subpoena any other witness to whom she had disclosed the abuse.

Third, M.C. had ample notice that K.R.'s statements would be introduced. M.P. included those statements in her restraining order application, which had been on file for nearly a year before the hearing.

Criminal charges aren’t proof. . .

The justices next held that the trial court erred by relying on the criminal allegations against M.C. but found the error harmless. Under Fam. C. §6306(a)(1), a trial court in a DVPA proceeding must conduct a search to determine whether the respondent has specified convictions, outstanding warrants, current parole and probation status, firearm ownership or possession, prior restraining orders, or prior violations of restraining orders. However, the court may not use nonconviction information from that search as substantive proof of abuse. The trial court therefore erred by relying on the criminal allegations themselves as evidence that M.C. had committed abuse. The justices concluded, however, that the error was harmless because excluding those allegations would not have produced a different result.

Finally, the panel held that the trial court abused its discretion by limiting M.C.'s professionally monitored visitation with S.R. based on the language barrier between the child and the monitor. Under Fam. C. §3200.5(e)(8), a professional monitor must be able to speak the language of both the supervised party and the child. The justices concluded that the language barrier, therefore, was not a valid basis for reducing visitation.

Accordingly, the Fourth District reversed the DVRO only to the extent it limited visitation between M.C. and S.R. and remanded the matter for the trial court to exercise its discretion in fashioning an appropriate visitation order. In all other respects, the order was affirmed.