Los Angeles County Department of Children & Family v. Jose C.

*1319 Opinion

—The current consolidated appeal arises from related proceedings which are being addressed together in the juvenile dependency court. In one proceeding, the dependency court sustained allegations that Jose C., Sr., had sexually abused the 11-year-old daughter of a cohabitant, and that the child’s mother knew of that abuse but failed to take action to protect the child against the abuse. As a result, the court found the victim of the direct abuse, and her siblings in the family home, were at risk of physical and emotional harm, including a risk of sexual abuse. In the related proceeding, based upon the same evidence of sexual abuse involving the 11-year-old child, the court sustained allegations that Jose C., Sr., presented a risk of sexual abuse to his own adolescent sons who lived in the family home, and posed a risk to his own teenage daughter who lived with her mother. On appeal, Jose C., Sr., challenges the dependency court’s findings that he poses a risk of emotional and physical harm and sexual abuse as to any and all of the children. He argues the findings are based on evidence which is incompetent, not credible and insubstantial. We affirm as to the children…

—I concur in the majority’s conclusion that jurisdiction over Kimberly A. was proper, but I write separately *1333 because I conclude Kimberly was not competent to testify. I dissent from part IV. of the opinion in which the majority concludes that the juvenile court properly assumed jurisdiction over Jose C., Jr., Eric C., and Yesenia C. Jose C., Sr. (father), does not challenge the juvenile court’s jurisdiction over Jacqueline A., and I agree with the majority that the record contains no substantial evidence to support jurisdiction over Ana C.

1. Kimberly

Father first argues that Kimberly was not competent to testify. Father forfeited his challenge to Kimberly’s competency because his counsel did not object to her testimony. (In re S.C. (2006) 138 Cal.App.4th 396, 420 [ 41 Cal.Rptr.3d 453 ].) Father next argues that his counsel rendered ineffective assistance by failing to object to Kimberly’s testimony. To show ineffective assistance, father must show not only that counsel’s performance was deficient but also that he was prejudiced. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98 [ 105 Cal.Rptr.2d 705 ]; In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540 [ 78 Cal.Rptr.3d 495…