Opinion
H032553
9-19-2008
In re JOSE D., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN RESOURCES AGENCY, Plaintiff and Respondent, v. SANDRA A., Defendant and Appellant.
Not to be Published
In this appeal, the mother of a dependent child challenges a juvenile court order made at the six-month review hearing. On appeal, the mother asserts that the juvenile court abused its discretion in refusing her request to have the child testify in chambers about his wishes concerning placement. She also challenges the courts determination that it would be detrimental to the child to testify, arguing that it lacks evidentiary support. For reasons explained below, we shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The appellant in this case is Sandra A. She is the mother of Jose D., Jr., who was born in December 1995. The childs father is Jose D., Sr. The child goes by his middle name, Daniel, which we shall use here.
Dependency Petitions; Detention
In January 2007, a petition was filed on behalf of Daniel and his maternal half-siblings by the Santa Cruz County Human Resources Agency, now called the Santa Cruz County Human Services Agency (the Agency). The petition sought dependency jurisdiction over the children under provisions of the Welfare and Institutions Code. (Further unspecified statutory references are to that code.)
The petition asserted that the mother had failed to protect the children and also that Daniel was suffering serious emotional damage as a result of the mothers conduct. (§ 300, subds. (b), (c).) The petition further alleged that the children were at risk due to the mothers inability to provide appropriate care as a result of her substance abuse and mental health issues and domestic violence in the home. The children were placed with their maternal grandmother.
In April 2007, the Agency filed an amended petition following the mothers arrest.
Jurisdiction and Disposition
In March 2007, the Agency filed a jurisdiction/disposition report with the court. According to the report, the mother and father had had a two-year relationship, but they never lived together. The father stated that he "was actively involved in Daniels life as an infant." Because of increasing friction with the mother, however, he "refrained from seeing his child as frequently and moved out of Santa Cruz County." But the father "continued to see Daniel when he visits with his family in Watsonville" approximately once a month. The Agency reported that it was investigating and assessing the father as a possible placement for Daniel.
In April 2007, the juvenile court conducted a settlement conference, followed by a combined jurisdiction and disposition hearing. The mother did not appear. Her counsel requested a continuance, which the court denied. The court received the petition into evidence, along with a report and a memorandum from the Agency.
The court sustained the petition, declaring Daniel a dependent child. The court continued his out-of-home placement. It ordered family reunification services for both the mother and the father.
Review Hearings
In September 2007, the court conducted a six-month review hearing. In its report for the hearing, the Agency recommended that the parents be offered six more months of family reunification services. The court questioned the recommendation "when father has done everything required of him by the agency and can provide a ... home, while mother has not been following her case plan."
At the hearing, Daniels attorney advised the court that the child did "not want to live with his father and be separated from his siblings." The fathers attorney reported that "father would love to have the minor come live with him but respects the minors desire to stay with his siblings." The court continued the hearing for the Agency to revise its report.
In October 2007, the Agency submitted a second six-month review report. It included information about the fathers relationship with Daniel and his desire for custody of the child. It also included information reflecting Daniels expressed "thoughts and feelings" about "the possibility of moving with his father soon." Daniel "appeared cheerless about such possibility."
In January 2008, the juvenile court conducted a contested hearing. The Agency recommended that Daniel continue as a dependent child, that he be placed with the father, and that family maintenance services be provided to the father.
At the hearing, the court received both documentary and testimonial evidence. The documentary evidence included a letter from Daniels counselor, which communicated his "very clear" preference "to continue living with his maternal grandmother and his siblings, with frequent and possibly extended visits at his fathers home." The court heard testimony from the mother, and it also accepted her offer of proof concerning how the maternal grandmother would testify. But the court denied the mothers request to have Daniel testify in chambers, after hearing her offer of proof about the childs anticipated testimony concerning his family relationships and his placement preferences.
At the conclusion of the hearing, the juvenile adopted the Agencys recommendations. The court continued Daniel as a dependent child. It found: "The return of the child to his father would not create a substantial risk of detriment to the safety, protection or physical or emotional well being of the child." The court ordered family maintenance services for the father. The court accepted the Agencys proposed case plan. Concerning visitation, the case plan provided that Daniel would "continue to visit with his maternal grandmother in Watsonville, California during school days" where he would "continue to be with his maternal brothers during the school days." The plan further provided that Daniel would "live with his paternal brothers in Madera, California during the weekends and school holidays."
Appeal
This appeal ensued. The mother challenges the order of January 7, 2008, based solely on the juvenile courts decision to exclude live testimony from Daniel.
DISCUSSION
As a framework for our analysis, we begin with a brief overview of the principles of dependency law that inform our decision. Against that backdrop, we analyze the specific contentions raised here.
I. Overview of Dependency Law
The Legislature has provided for juvenile court jurisdiction over dependent children. (See § 300 et seq.) The primary goal of the dependency statutes is "to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible." (In re David M. (2005) 134 Cal.App.4th 822, 824.)
In dependency proceedings involving the removal of children from their parents, there are generally four phases: (1) jurisdiction, (2) disposition, (3) family maintenance or reunification (unless bypassed), and (4) the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) This appeal concerns the third phase of the dependency process, which is aimed at reunification and family maintenance. (See In re Joel T. (1999) 70 Cal.App.4th 263, 267-268.)
II. Analysis
As noted above, at the conclusion of the contested hearing in January 2008, the juvenile court ordered Daniels return to the father with family maintenance services. The mother asserts that the juvenile court abused its discretion in refusing her request to have the child testify in chambers about his wishes concerning placement. She also challenges the evidentiary basis for the courts statement that it would be detrimental for Daniel to testify.
A. Review Standard
We review the mothers claims of error for an abuse of discretion. As a general rule, the juvenile courts placement determination for a dependent child typically is reviewed under the abuse of discretion standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) More specifically, the decision "whether to require a direct statement from the minor regarding his/her thoughts is one that is best left to the sound discretion of the trial judge." (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592 [proceeding to terminate parental rights under § 366.26].)
B. Application
Applying the deferential standard that governs here, we find no abuse of discretion.
We begin by acknowledging the importance of considering the dependent childs desires. "While we are both statutorily mandated and morally constrained to act in the best interests of the child, to the extent possible children should have some voice. It is, after all, their futures we decide, their destinies we begin and their entire lives we affect." (In re Leo M., supra, 19 Cal.App.4th at p. 1593; accord, In re Asia L. (2003) 107 Cal.App.4th 498, 513; see also, e.g., § 317, subd. (e) [childs counsel "shall advise the court of the childs wishes"]; cf. § 366.26, subd. (h)(1) [in permanency planning, "the court shall consider the wishes of the child"].)
But even where evidence of the childs wishes is statutorily mandated, as in permanency planning hearings, that evidence "need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing." (In re Amanda D. (1997) 55 Cal.App.4th 813, 820; see also, e.g., In re Leo M., supra, 19 Cal.App.4th at p. 1591, fn. 6, and cases cited therein.) "The process must be sufficiently flexible to provide some accommodation to the varying circumstances that will inevitably present themselves." (In re Leo M., at p. 1592.) Thus, when "the childs desires and wishes can be directly presented without live testimony, where the issues to be resolved would not be materially affected by the childs testimony, and where it is shown that the child would be psychologically damaged by being required to testify, ... the juvenile court judge has the power to exclude such testimony." (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089.) The courts power to do so derives "from a recognition of the overriding objective of the dependency hearing—to preserve and promote the best interests of the child. It would be a perversion of the procedure to impose upon it a requirement that the childs testimony always be presented, regardless of the trauma resulting to the child therefrom, and regardless of the necessity of such testimony in the resolution of the issues before the court." (Ibid., fn. omitted.)
Here, the court had the Agencys report, which indicated Daniels placement preferences. It also had his counselors letter, which the court viewed as "sufficient" to show his wishes. The court thus was aware of Daniels placement preferences. (In re Amanda D., supra, 55 Cal.App.4th at p. 820 [the court had "a reasonable basis for inferring the [childs] wishes"]; In re Leo M., supra, 19 Cal.App.4th at p. 1593 [the record contained "ample evidence from which [childs] feelings [could] be inferred"].) Even so, the court entertained the mothers offer of proof that Daniel would testify "that he doesnt want to live with his father, that he wants to live with his mother, that he, with his own words, will testify that he doesnt very much have a relationship with his father. He has lived throughout his life with his mother. Hes very close to his siblings. He wants to continue going to the same school. He does not want any changes in his life." In the courts view, given the legal issue at hand (whether placement with the father would be detrimental to Daniel), "only two things" in the offer of proof were even marginally relevant: (1) "no relationship with father" and (2) "wants no change in his life." Against this backdrop, the court excluded the proffered testimony.
Considering these circumstances — the clear documentation of Daniels placement preferences and the marginal relevance of that evidence — we cannot agree with the mother that the juvenile court abused its discretion in declining to have Daniel testify. And in any event, this record provides no indication that the outcome would have been different had Daniel testified. (Cf. Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1515 [use of offer of proof in lieu of direct testimony at 18-month review hearing was harmless]; In re Leo M., supra, 19 Cal.App.4th at p. 1594 [failure to take direct evidence of childs wishes was not prejudicial].)
Nor are we persuaded to a different result by the mothers contention that no evidence supports the courts statement that "the most detrimental thing would be calling [Daniel] as a witness at this point." For one thing, the mother offers no authority suggesting that the court was required to find that receiving the childs direct testimony would harm him, nor are we aware of any such requirement. For another thing, the courts statement followed an objection by the fathers counsel that Daniel should not be "asked to make that kind of decision. Even if its in chambers ... theres no reason to ask him, when its clear what he prefers. ... [I]t cant possibly be good." That context, together with other evidence before the court, supports an inference of possible harm to Daniel from compelling him to describe his divided loyalties under oath, particularly at an apparently sensitive stage in his developing relationship with his father. And as case law makes clear, "it is within the juvenile courts discretion to exclude the testimony of a child in order to avoid psychological harm to the child, even though that testimony is relevant, the child is competent to testify, and the child is both practically and legally `available to testify." (In re Jennifer J., supra, 8 Cal.App.4th at p. 1088.)
In sum, on this record, the juvenile court did not abuse its discretion in excluding the childs testimony.
DISPOSITION
The juvenile courts order of January 7, 2008, is affirmed.
We concur:
Elia, Acting P.J.
Mihara, J.