Opinion
B326743 B331477
07-12-2024
In re A.S., a Person Coming Under the Juvenile Court Law. v. SANJAY S., Objector and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, H.T., a Minor, Respondent,
Jesse McGowan, under appointment by the Court of Appeal, for Objector and Appellant. Karen B. Stalter, under appointment by the Court of Appeal, for Respondent in B326743. Office of the County Counsel and Stephen D. Watson for Petitioner and Respondent in B331477.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 18CCJP04215 Jean M. Nelson Smith, Judge. Reversed and remanded with instructions as to case No. B326743; dismissed as to case No. B331477.
Jesse McGowan, under appointment by the Court of Appeal, for Objector and Appellant.
Karen B. Stalter, under appointment by the Court of Appeal, for Respondent in B326743.
Office of the County Counsel and Stephen D. Watson for Petitioner and Respondent in B331477.
STONE, J.
In the first of two appeals (B326743), Sanjay S. (Father) appeals from jurisdiction findings regarding his daughter, A.S., under Welfare and Institutions Code section 300, subdivisions (a), (b), (d), and (j), and a disposition order removing her from his physical custody. The juvenile court found Father physically and sexually abused A.S.'s older half-sister, H.T. Father contends the court prejudicially erred when it denied his request to make H.T. available for testimony at the jurisdiction hearing. Because we agree that Father's right to due process was violated, we reverse and remand the matter for a new jurisdiction and disposition hearing.
Undesignated statutory references are to the Welfare and Institutions Code.
In his second appeal (B331477) arising out of a subsequent section 342 petition pertaining to A.S., Father challenges the disposition order denying his request for placement of A.S. In light of the disposition in his first appeal, Father's request in the second appeal is moot, and we dismiss that appeal.
Because the Los Angeles County Department of Children and Family Services (Department) did not take a position before the juvenile court on whether H.T. should be excused from testifying, the Department notified this court that H.T., not the Department, was the proper respondent in the appeal on that issue. We appointed appellate counsel for H.T. However, the Department is the respondent on the second appeal.
FACTUAL AND PROCEDURAL BACKGROUND
1. Family History
In 2006, L.T. (Mother) gave birth to H.T., her first of nine children. Mother and Father met in 2014 and began living together in 2015. In 2016, Mother gave birth to her sixth child, A.S., who is her only child with Father. Later that year, Mother separated from Father and moved with her children to Las Vegas. There, Mother started a relationship with another man, Samuel B., with whom she had her youngest three children.
H.T.'s presumed father passed away in 2020 and was not a party in this case.
In 2018, Mother and her children returned to Los Angeles and temporarily lived with Father. Later that year, a juvenile court asserted dependency jurisdiction over Mother's children based on domestic violence between Samuel and Mother. In 2019, the juvenile court terminated jurisdiction with orders granting Mother and Father joint custody of A.S., with A.S. primarily residing with Father. Thereafter, A.S. mostly stayed with her paternal aunt, who cared for A.S. while Father worked as a truck driver.
2. Referral and Department Petition
The family again came to the attention of the Department on February 19, 2022, when the Department received a referral alleging Father had physically and sexually abused H.T. According to the report, Father had been sexually abusing H.T. since she was nine years old and only stopped when Mother and the children lived in Las Vegas between 2016 and 2018. The caller stated Father had recently been abusing H.T. after luring her to his home under the guise of babysitting A.S. The caller also reported Father had choked H.T. until she blacked out and pointed a gun at her, threatening to kill her, her siblings, and Mother if H.T. reported his abuse. The caller stated Mother only learned of Father's abuse after discovering "some inappropriate text messages, photos and videos of sexual activity between the two" after Father last abused H.T. on February 15, 2022.
The Department filed a dependency petition on behalf of Mother's nine children, alleging under section 300, subdivisions (a), (b), (d), and (j), that Father physically and sexually abused H.T. and Mother knew of the abuse and failed to protect the children. The Department subsequently amended the petition to add an allegation under section 300, subdivision (b), that Mother's "intellectual disability" left her unable to provide adequate care and supervision of the children.
3. Detention Report
On February 19, the Department interviewed H.T., who at the time was a month shy of 16 years old. H.T. stated that Father had been sexually abusing her since she was nine years old. H.T. said she was worried that if Father found out she had disclosed his abuse, he would hurt Mother and her siblings as he had threatened to do. At the time of the interview, H.T. was hospitalized because she reported she drank bleach that morning. H.T. was placed on a psychiatric hold due to concern she was a danger to herself.
Law enforcement also interviewed H.T. on February 19. H.T. was crying during the interview. She stated Father had raped her since she was nine years old and as recently as February 15. The abuse stopped while she lived in Las Vegas but restarted when the family returned to Los Angeles. Father picked her up from school on February 15 without any previous plans to do so and took her to his residence. Once there, Father performed oral sex on her, directed her to perform oral sex on him, and then penetrated her vagina with his penis. When the family used to live with Father he would abuse her every other night, and presently the abuse occurred about twice a week. H.T. explained she told Mother about the abuse on February 18 after Mother confronted her about having sex with an older male neighbor.
Two of H.T.'s siblings (other than A.S.) were interviewed, and neither reported any knowledge of the alleged sexual abuse. H.T.'s cousin reported she searched H.T.'s phone with Mother and found "multiple images and videos depicting [H.T.] in lingerie, while at [Father's] residence" and text messages suggesting H.T. had an ongoing sexual relationship with the neighbor.
Two days later, on February 21, the Department again spoke with H.T. During this interview, H.T. disclosed she was in a sexual relationship with a 30-something-year-old man who lived nearby. H.T. stated that when she returned home after having sex with the man on February 18, she was questioned by her cousin and Mother about the relationship and whether she had lost her virginity to the man. At that point, H.T. told Mother that Father had been raping her since she was nine years old. H.T. stated Mother believed her and reported the abuse only because her cousin was also present. H.T. explained that after she shared this information she felt overwhelmed and attempted to kill herself by drinking bleach.
H.T. told the interviewer she was "very upset" with Mother, explaining she had informed Mother of Father's abuse when she was 10 years old and that despite saying she believed H.T., Mother did not do anything to protect her. H.T. also stated she had previously informed Mother that one of her uncles had sexually abused her, after which Mother "became more special" and gave her gifts in a manner that suggested she was bribing H.T. to not disclose the abuse. H.T. refused to provide the uncle's name or familial connection.
On February 22, the Department interviewed A.S., A.S.'s paternal aunt, and Father. A.S., who at the time was six years old, reported she had not been physically or sexually abused by Father, and denied having knowledge of H.T.'s allegations against Father. The paternal aunt, with whom A.S. had primarily resided for four years, also denied any knowledge of abuse. She said Father came and saw A.S. at her home, and she indicated A.S. did not spend the night at Father's home and was never left under H.T.'s care. During his interview, Father asserted that, with Mother's knowledge, he picked H.T. up from school the week before "because she wanted to kill herself and I wanted to help her." Father stated that when they got to his home, H.T. "went into the bathroom and wanted to kill herself" and "there was a little scuffle" when he pulled her out of the bathroom in an effort "to prevent her from hurting herself."
On February 24, the Department interviewed Mother. Mother stated that Father and H.T. informed her on February 15 that Father would pick H.T. up from school because he needed her to babysit A.S. Mother also stated that H.T. had never told her about Father's abuse before February 2022. Mother explained that on the morning of February 18 she noticed H.T. was missing and that the location tracker on her phone was turned off. When Mother called her, H.T. said she was at a friend's house; however, the friend's mother subsequently informed Mother that H.T. had not slept there and was instead at the house of a "40 something year old man" named Mike. After H.T. came home, she admitted she was in a sexual relationship with Mike and said she did want Mother to press changes against him. Mother confiscated H.T.'s phone and found a sexually explicit text message to Mike on H.T.'s phone. Mother also found a conversation between H.T. and someone Mother believed to be Father that contained "sexual content from videos, pictures and messages." Mother showed the interviewer evidence from H.T.'s phone, including a saved conversation between H.T. and "someone [Mother] identified as [Father] but was saved as Dumb tiny dwarf man (with an emoji face with tears of joy next to the name)." After Mother found this content, H.T. disclosed Father's abuse to Mother.
Mother also showed photos from H.T.'s phone that contained H.T. in black see-through lingerie and a gold chain that H.T.'s cousin-who helped Mother unlock and navigate H.T.'s phone-identified as belonging to Father. The cousin identified the photos as being taken in Father's bathroom.
None of these photos or other content from H.T.'s phone was presented as evidence in the juvenile court.
After interviewing Mother, the Department spoke to Mother's other children. Like A.S., none of the children reported being abused by Father or having knowledge of H.T.'s allegations against him.
On February 25, H.T. told a Department interviewer that she had been "raped vaginally" more than 10 times at Father's home. H.T. reported that Father used babysitting A.S. as a "code" for picking her up from school and having sex at his home. She stated she never babysat A.S., and that when she previously told Mother about the abuse, Mother did not do anything about it. H.T. explained that instead Father convinced Mother that H.T. was lying and H.T. "gave in" and told Mother "it wasn't true."
As of April 19, H.T. had completed her assessment with a therapist and was enrolled in services. Mother reported H.T. was "stable" and was "currently back in school."
4. Post-Detention Investigation
In a report filed on June 10, 2022, the Department described new interviews with H.T. and Father.
H.T. acknowledged in her interview that she would be participating in an upcoming forensic interview and that her counsel informed her she would have to testify in court. When asked about her relationship with Mother, H.T. responded: "Now that's a rocky relationship. I think it's because I'm growing up and she feels that I don't need her anymore. It's the most rocky relationship I have with anyone."
During his interview, Father explained that Mother forced H.T. to cook and clean, and H.T. came to his house "to get away from" Mother. Father stated he told H.T. that, when she wanted to come over, she should tell Mother she was coming over to watch A.S., noting Mother would not otherwise allow H.T. to come over without a reason. Father added he told H.T. to bring over some of her siblings as well. On one occasion, Father stated H.T. told him that Mother let her maternal uncle hit H.T., and that Mother was trying to protect the uncle.
5. Forensic Interview
On July 6, 2022, H.T. participated in a forensic interview. At the beginning of the interview, the interviewer asked H.T. whether she promised to tell the truth, to which H.T. responded: "I promise. I don't promise. I just - just tell the truth." H.T. clarified that she did not really make promises, but if the topic was about something serious, she would tell the truth.
During the interview, H.T. provided the following factual statements:
When she was seven or eight, H.T. was taken away from Mother and lived with an aunt. When she was nine, and during fourth grade, H.T. moved back in with Mother, who at the time was living with Father.
Father began sneaking into her room at night to touch her butt, and then later had H.T. come to the living room where he touched her vagina and had her perform oral sex on him. This abuse happened every other night and only stopped when, during the summer after fifth grade, H.T. moved to Las Vegas with Mother and her siblings.
While in Las Vegas, H.T. told Mother that Father had been touching her. Mother called Father and asked him about the abuse. Father denied H.T.'s allegation and told H.T. that he was just showing affection and that if she told anyone else her siblings would be taken away and Mother would get in trouble. H.T. then told Mother that she was lying.
When H.T. was in sixth grade, she moved back to Los Angeles with Mother and her siblings. During that year, Father would sometimes pick her up from school and restarted the same sexual abuse. Father once tried to force his penis into her vagina, but it hurt and caused H.T. to cry. When H.T. said she wanted him to stop, Father talked about how "we can't tell anyone" and pulled out a revolver, which scared her. On a separate occasion, Father got in the shower with H.T. and tried to bend her over in another attempt to force vaginal sex.
When H.T. was 14, she became sexually active with a boyfriend. Once Father found out, he told H.T. that "since you're not a virgin anymore, you can now start, like, doing penetration." After that, Father started bringing H.T. to his home to have sex with her. Father would tell Mother that he needed H.T. to babysit A.S., but A.S. was never there. He would give H.T. "hush money" or buy her things to prevent her from saying anything to Mother.
In September 2021, H.T. started a sexual relationship with an older man who lived across the street. She would sneak out of the house and go to the man's house. When Mother caught H.T. sneaking out in February 2022, Mother asked H.T. whether she had lost her virginity to the man. H.T. stated that she lost her virginity to Father and disclosed his abuse.
When the interviewer asked H.T. if there was ever a time Father deviated from the described patterns of abuse, H.T. recalled a specific incident during the summer after fourth grade. H.T. was hanging out with a boy when she was supposed to be home, and Mother alerted law enforcement. When H.T. came home, law enforcement was there and H.T. "might have lied about being kidnapped so [she] didn't get in a lot of trouble." When Father came home, he was mad. Later, when H.T. was sleeping, Father woke her up, scolded her, and then asked her if she had done "anything with the boy." After H.T. told him no, Father patted his chest and told her to lie there.
6. Father's Motion To Make H.T. Available for Testimony
Several months before the jurisdiction hearing, Father's counsel requested that H.T. be made available for testimony at the hearing. H.T.'s counsel opposed the request, asserting Father had "enough information" between the Department reports and the forensic interview. H.T.'s counsel added that if the court granted the request, H.T. would move to have her testimony taken in chambers.
In a subsequently filed motion, Father asserted that H.T. did not qualify as an unavailable witness under Evidence Code section 240 and that excluding her testimony from the jurisdiction hearing would violate his due process rights under In re Amy M. (1991) 232 Cal.App.3d 849 (Amy M.). Father listed specific issues he sought to address through H.T.'s testimony, including matters relevant to her credibility, and he emphasized that H.T. could testify in chambers and outside of his presence.
On October 26, 2022, the court heard argument on Father's motion, noting at the outset that it had to consider "whether a further interview [of H.T.] is needed" in light of the multiple interviews H.T. had previously given, as well as consider whether having to testify would be "unduly emotionally traumatizing" to H.T. Father's counsel provided an offer of proof as to some of the subjects he wished to probe during H.T.'s testimony. Counsel pointed to H.T.'s changing statements regarding when she reported Father's abuse to Mother; her admission to previously lying to Mother and law enforcement about being kidnapped to avoid getting into trouble for running away with a boy; the timing of her disclosure in relation to Mother's discovery of her sexual relationship with an older man; her failure to report Father's abuse during previous Department investigations involving the family; her knowledge that Mother did not like Father; and Mother's identification of Father as the contact on her phone named "Dumb tiny dwarf man" despite evidence that Father was tall and heavyset.
Father's motion explained his theory that H.T. fabricated the story about being abused by Father to "save herself from Mother's wrath" that she was sexually involved with an adult.
Father's counsel also suggested there was an insufficient basis to conclude H.T. would suffer emotional harm if she were required to testify. Moreover, Father's counsel stated, "Father does not have to be present in the courthouse" and instead could "call in" to the hearing to alleviate possible trauma to H.T.
The court denied Father's motion and determined H.T. did not need to testify. The court concluded that Father's proposed examination topics would not elicit any "particularly relevant or compelling" evidence that had not already been flushed out in the multiple interviews of H.T. The court also found there was evidence that H.T. "would be traumatized by further testimony," based on the facts that H.T. had already been interviewed many times, she cried during at least one of her interviews, and "she drank bleach and ended up in the hospital when this all started to come out." Balancing these factors, the court denied Father's motion. The court noted it would have looked at things differently if H.T. had recanted.
In denying Father's motion, the court favorably referred to case law cited by H.T.'s counsel. It appears H.T.'s counsel submitted a trial brief addressing whether H.T. should be required to testify, but no such brief appears in the record on appeal. On appeal, minor's counsel filed a request seeking to correct the record to add H.T.'s trial brief as well as a "timeline of events" that is referenced as having been provided to the juvenile court. The clerk of the superior court responded that efforts to obtain the missing records from the parties and counsel were not successful.
7. Jurisdiction and Disposition Hearing
On November 21 and December 13, 2022, the court held a combined jurisdiction and disposition hearing on the amended petition. Mother was the sole witness called to testify. She testified that she never saw Father sexually abuse any of her children. She also testified that H.T. would lie to her when she got in trouble. The court sustained an objection to Father's counsel's follow-up question regarding H.T.'s admission to lying to Mother and law enforcement when she was younger.
During closing argument, Father's counsel asserted that H.T. manufactured the abuse allegations against Father to deflect away from her sexual relationship with an older neighbor. Counsel pointed to the evidence showing H.T. and Mother were frequently at odds, and that one exception to this pattern was when Mother treated H.T. more kindly after H.T. informed Mother that an uncle had sexually abused her. Counsel suggested H.T. wanted "that type of attention" from Mother, implying that H.T.'s motive in accusing Father was to obtain this attention from Mother again. Counsel argued Father was a good target for H.T.'s false accusations because H.T. knew Mother did not like him. Finally, counsel again emphasized the numerous alleged inconsistencies and credibility issues in H.T.'s prior statements that Father had described in his motion seeking to compel H.T.'s testimony.
The court sustained the allegations against Father under section 300, subdivisions (a), (b), (d), and (j), and struck the allegations against Mother.
The court found H.T. was very credible. The court emphasized that H.T. repeated the "same basic story" in all her interviews. Further, the court found H.T.'s description of how Father escalated the sexual abuse over time was consistent with how such abusers typically operate. The court explained that the "emotional trauma that [H.T.] displayed during her disclosures also proves she's telling the truth." The court found Father to be not credible. The court rejected his defense theory, explaining his arguments that H.T. manufactured the allegations did not make sense.
The court ordered A.S. removed from Father, with Mother retaining physical custody and Father having a right to weekly monitored visitation in a public setting.
Father timely appealed.
8. Subsequent Petition and Second Appeal
On March 16, 2023, the Department filed a subsequent petition under section 342, alleging Mother was unable to adequately supervise her children under section 300, subdivision (b).
The juvenile court sustained the allegations against Mother and removed all the children except H.T. from Mother's custody. The court denied Father's request for placement of A.S. with him on the condition that she reside with her paternal aunt. The court explained that Father's continued refusal to admit that he abused H.T. showed he did not understand "how grooming is a risk." The court emphasized that Father "was quite conniving in how he would manipulate [H.T.] and arrange for meetings and in such a way that Mother wouldn't know what is going on. And he could do that to his own child."
Father timely appealed.
DISCUSSION
Father's sole argument on the appeal from the original section 300 proceeding is that the juvenile court prejudicially erred in denying his motion to make H.T. available for testimony at the jurisdiction hearing. Notably, H.T.'s appellate counsel does not present any argument that the juvenile court's decision was correct. Rather, counsel acknowledges Father "arguably had a due process right to cross-examine [H.T.] about her statements in the social studies report and in the forensic interview," but contends any error was harmless.
"We review the exclusion of a child's testimony to avoid psychological harm to the child for an abuse of discretion." (In re Daniela G. (2018) 23 Cal.App.5th 1083, 1090 (Daniela G.); accord, In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1088 (Jennifer J.).) "To the extent [a parent] challenges the factual findings underlying the juvenile court's ruling, our review is for substantial evidence, and to the extent [a parent's] claims raise questions of law, our review is de novo." (Daniela G., at p. 1090.)
1. Due Process Right to Cross-examine in a Dependency Proceeding
" 'Parents have a fundamental liberty interest in the care, custody, and management of their children.'" (Daniela G., supra, 23 Cal.App.5th at p. 1092.) Parents in dependency proceedings thus have certain due process rights. (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777.) While parents in a dependency case do not have the same expansive constitutional protections afforded to criminal defendants, they have" 'a due process right to a meaningful hearing with the opportunity to present evidence,' including a right to confrontation and cross-examination of witnesses." (Daniela G., at p. 1092; see In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1130 ["Where . . . credibility is at stake, parents are entitled to . . . confront and cross-examine the witnesses against them."]; Amy M., supra, 232 Cal.App.3d at p. 864 ["[p]arties to a dependency proceeding have a statutory right to cross-examine and confront witnesses"]; see also §§ 311, subd. (b), 341, 350, subd. (c); Cal. Rules of Court, rule 5.534(g)(1).)
2. Limitations on Cross-examination of Child Witnesses
Recognizing that parents' rights to cross-examination in dependency proceedings are not absolute, and that some child witnesses may experience significant trauma if required to testify in dependency proceedings, courts have developed parameters for determining when minors may be excused from testifying. (See Amy M., supra, 232 Cal.App.3d 849; Jennifer J., supra, 8 Cal.App.4th 1080; and Daniela G., supra, 23 Cal.App.5th 1083.)
A. Amy M.
The 1991 decision Amy M., supra, 232 Cal.App.3d 849, arose from a dependency petition filed on behalf of two siblings, Amy and Michael, following Amy's disclosure that her father had sexually molested her. (Id. at p. 865.) As to Michael, the petition alleged he was suffering emotional damage as a result of Amy's molestation and his mother's failure to protect him. (Id. at pp. 865, 867.) While Amy testified without objection at the jurisdiction hearing, Michael's counsel objected when the parents' counsel moved to have Michael produced as a witness. (Id. at p. 863.) A court-appointed evaluator testified "it would be stressful for Michael to testify because he was under significant psychological stress, was repressing fantasies, was frightened and was concerned about what he might say." (Id. at p. 864.) It was conceded that Michael would testify he himself was not molested. (Id. at p. 867.) The juvenile court ruled the parents could not call Michael to testify, after balancing "what this child could do or say versus . . . the damage to the child." (Id. at 864.)
On appeal, the court determined Michael's testimony would have sufficient relevance to the jurisdiction allegations that it violated the parents' due process rights to refuse to allow them to call Michael as a witness. (Amy M., supra, 232 Cal.App.3d at pp. 864-865.) The court rejected Michael's contention that, given the evaluator's testimony that Michael was suffering from low esteem and showed signs of a fundamental thought disorder such as schizophrenia, Michael's testimony was unnecessary to determine whether it was true he had suffered emotional damage within the meaning of section 300, subdivision (c). (Id. at p. 865.) The court noted that the parents' testifying expert opined that the cause of Michael's psychological distress was actually his removal from the family home and from his mother's custody. (Ibid.) By refusing to allow Michael to be called as a witness, the juvenile court had prevented the parents from attempting to verify their expert's conclusions and to impeach the court-appointed evaluator. (Ibid.) The court also noted there was no "substitute for Michael's testimony which might have satisfied due process," as Michael had not previously testified, and there was no report containing his statements. (Ibid.) The court determined the due process violation was not harmless and reversed for a new jurisdiction hearing. (Id. at p. 868.)
B. Jennifer J.
In Jennifer J., supra, 8 Cal.App.4th 1080, parents of sevenyear-old Jennifer relied on Amy M. to argue the juvenile court had improperly refused to permit them to call their daughter as a witness at the section 366.26 selection and implementation hearing to determine if their parental rights should be terminated. The parents sought to elicit Jennifer's testimony that she desired continued contact and had a bond with them. (Id. at p. 1085.) After Jennifer's attorney objected, arguing it "would be incredibly traumatic for [Jennifer to have to testify] as evidenced by her therapist," the juvenile court concluded that requiring Jennifer to testify would cause her psychological stress and injury and would not yield any possible benefit warranting the injury it would cause. (Id. at p. 1086, fn. 4.)
On appeal, the court found that unlike in Amy M., "in which the minor's testimony could have assisted in resolving a disputed issue" at the jurisdiction hearing, in Jennifer's case the juvenile court had accepted as established the facts that Jennifer's parents wanted her to testify about. (Jennifer J., supra, 8 Cal.App.4th at p. 1087.) Moreover, the "pivotal factual decision" in Jennifer's case-whether adoption was the best disposition for Jennifer-was a decision that her testimony would not have aided. (Id. at p. 1088.)
The court held the juvenile court may exclude child testimony "where the child's desires and wishes can be directly presented without live testimony, where the issues to be resolved would not be materially affected by the child's testimony, and where it is shown that the child would be psychologically damaged by being required to testify." (Jennifer J., supra, 8 Cal.App.4th at p. 1089.) This discretionary authority derives from "the overriding objective of the dependency hearing-to preserve and promote the best interests of the child." (Ibid.) The court held it would be perverse to require "the child's 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.) Cautioning that "[t]he refusal of the court to issue process requiring the attendance and testimony of the child should, assuredly, be a decision made only after a careful weighing of the interests involved," the court concluded the circumstances in Jennifer's case indeed justified the juvenile court's decision to excuse Jennifer from testifying. (Ibid.)
C. Daniela G.
The court in Daniela G. held the juvenile court correctly applied the rubric set forth in Jennifer J. in excusing two minor girls, eight-year-old Daniela and her 13-year-old stepsister, from testifying at a jurisdiction hearing involving claims that Daniela's father had sexually abused the stepsister and was grooming Daniela. (Daniela G., supra, 23 Cal.App.5th at pp. 1086, 1088.) The court "recognize[d] that because [the instant] case is an appeal from jurisdictional and dispositional findings, its procedural posture is closer to the one in Amy M., which also involved a jurisdiction hearing, than it is to the one in Jennifer J., which involved a hearing to terminate parental rights." (Daniela G., at p. 1093.) However, the court concluded "Jennifer J.'s logic is not limited to that particular stage of a dependency proceeding" because the" 'overriding objective' of protecting a child's best interests [citation], applies at all stages of a dependency proceeding." (Daniela G., at p. 1094.) The court thus held a juvenile court has discretion even at a jurisdiction and disposition hearing "to refuse to require a child to testify . . . if the material effect of the child's testimony on the relevant issues is outweighed by the psychological injury the child risks by testifying." (Id. at p. 1091.)
Due to the similarities between the situations of H.T. and the teenage stepdaughter in Daniela G. who likewise accused her stepfather of sexual abuse, we primarily focus on the analysis in Daniela G. with respect to the stepdaughter as opposed to the younger Daniela, who "never said that father had sexually abused her or stepdaughter"; the court readily concluded Daniela's testimony would not have helped resolve any disputed issue. (Daniela G., supra, 23 Cal.App.5th at p. 1094.)
In Daniela G., evidence was submitted at the jurisdiction hearing regarding the likelihood of psychological trauma to the stepdaughter if she were required to testify. The stepdaughter's clinician who conducted the teen's Child and Adolescent Needs and Strengths (CANS) assessment provided a letter stating the stepdaughter was" 'experiencing significant psychological symptoms,'" including symptoms of post-traumatic stress disorder, and was" 'very vulnerable.'" (Daniela G., supra, 23 Cal.App.5th at p. 1088.) The clinician opined that "the stress of testifying would put stepdaughter at risk given her 'history of self-harm and suicidal ideation.'" (Ibid.) Social workers also testified that the "stepdaughter was 'very fearful' and 'very embarrassed' and felt 'a tremendous amount of guilt that she hadn't come forward earlier' to protect Daniela," and they opined it would be" 'detrimental for her to have to testify and see' father." (Id. at p. 1089.)
On this record, the appellate court had "no trouble" concluding the juvenile court correctly found the stepdaughter would be psychologically harmed if required to testify. (Daniela G., supra, 23 Cal.App.5th at p. 1095.) The court rejected the father's contention that there had to be testimony about the likelihood of trauma by "a physician and surgeon, including a psychiatrist . . . as required under [Evidence Code] section 240," noting the grounds for excluding child testimony under Jennifer J. are broader than the Evidence Code section 240 unavailability exception. The court also dismissed the father's argument that the social workers' and the clinician's statements about the stepdaughter "were limited to the harm she would experience from testifying in front of him," because the father had forfeited this argument by not raising the possibility of in-chambers testimony in the juvenile court. (Daniela G., at pp. 1095-1096 [italics added].)
A determination that a witness is unavailable under Evidence Code 240, subdivision (a)(3), generally requires either the witness to expressly refuse to testify, or expert testimony "as to the likely effect of the court appearance on the physical or mental health of the witness." (People v. Stritzinger (1983) 34 Cal.3d 505, 518.) But because that provision "has significant limits on its applicability, case law has recognized a broader basis for excusing a child from testifying in a dependency proceeding." (Daniela G., supra, 23 Cal.App.5th at p. 1086.)
As for Daniela, social workers had testified it would be" 'extremely detrimental'" to require her to testify, because she was a "very young eight year old" and because of the nature of the allegations against her father. (Daniela G., supra, 23 Cal.App.5th at p. 1089 .) The appellate court also noted Daniela's CANS assessment reported that she "was having difficulty processing 'her feelings and . . . the recent loss of her father living with the family,' resulting in 'what appears to be an indifferent response to this loss.' She was also exhibiting increased anxiety, including eating more." (Id. at p. 1095.) The court concluded that "[t]aken as a whole, this evidence was sufficient to support the determination that Daniela would be traumatized by having to testify." (Ibid.)
In examining the materiality of the stepdaughter's testimony, the court acknowledged that, unlike in Jennifer J. where the content of the minor's anticipated testimony was not disputed, the stepdaughter's allegations of sexual abuse were indeed disputed and "went to the heart of the case." (Daniela G., supra, 23 Cal.App.5th at p. 1095.) Nevertheless, the court was not persuaded the stepdaughter's testimony would have "materially affected" the resolution of the issues. (Ibid.) The court noted the father "did not testify or challenge any specific details" of the stepsister's allegations; nor did he "identify any basis on which he hoped to impeach her." (Id. at p. 1095.) "In contrast, stepdaughter described the sexual abuse in significant detail in [a previous] interview, and the juvenile court found her statements to be extremely credible." (Ibid.) The court also distinguished Amy M.-where the court had ruled the child witness could not be excused because his testimony was material to a disputed issue-because in Amy M. there had been no other interviews of the child. (Id. at pp. 1092-1093.) The court cautioned, however, that "[i]n many cases, a court will not be able to rely on Jennifer J. to exclude a child from testifying because the testimony while subject to cross-examination may materially affect the assessment of the child's credibility. But where, as here, the child describes abuse in out-of-court statements the court finds credible, and the alleged perpetrator denies the abuse but does not suggest how the child could be impeached, the court can reasonably conclude that forcing the child to testify would not materially affect its credibility assessment." (Id. at p. 1095.)
The court thus "conclude[d] that the juvenile court properly balanced father's due process rights against the resulting trauma to the girls to excuse them from testifying." (Daniela G., supra, 23 Cal.App.5th at p. 1096.)
3. Father Had a Due Process Right To Cross-examine H.T. A. Likelihood of psychological harm from testifying
The foregoing authorities demonstrate that in order to exclude child testimony, it must be "shown that the child would be psychologically damaged by being required to testify." (Jennifer J., supra, 8 Cal.App.4th at p. 1089.) Here, however, evidence was lacking that H.T. would suffer psychological harm by testifying at the jurisdiction hearing.
The record contains no statements or testimony from a social worker or a medical or mental health professional opining that testifying would harm H.T. (See Daniela G., supra, 23 Cal.App.5th at pp. 1089, 1095 [social workers' testimony and letter from treating clinician opined that requiring the children to testify would be detrimental]; Jennifer J., supra, 8 Cal.App.4th at p. 1086 fn. 4 [therapist opined it would traumatize minor to have to answer questions regarding her wishes for adoption and ongoing contact with her parents]; Amy M., supra, 232 Cal.App.3d at p. 864 [expert testified regarding child's psychological stress if required to testify given he was suffering from a serious thought disorder and was frightened and concerned he could endorse fantasies in his testimony].) Notably, Father's counsel put the Department and H.T.'s counsel on notice months ahead of time that Father wished to call H.T. to testify at the jurisdiction hearing. Even so, no social workers or therapists lodged concerns that having to testify would harm H.T.'s psychological well-being.
Nor, for that matter, does the record contain a statement from H.T. that she was concerned that testifying would cause her emotional stress. While H.T. indicated in a June 2022 interview that she preferred to not talk about the abuse allegations with a Department interviewer, that the thought of doing so made her cry, and that she was "trying to move on with [her] life," she said she would rather talk about the allegations during her upcoming forensic interview and noted her counsel had informed her she would have to testify in court.
To that end, H.T. extensively discussed the details of her allegations during the forensic interview one month later. She explained that since she disclosed Father's abuse there had been "ups and downs," noting the family did not talk about the subject at home. But she also emphasized that she did not want the situation to control her life. At the end of the interview, H.T. stated that the last time she talked about what had happened she cried because the person she spoke with "was being insensitive about the situation and seemed like he was "trying to brush [her] off" and was "just there to be there." H.T. explained that the forensic interviewer, on the other hand, seemed like she cared and did not make her want to cry. Despite the understandably difficult and uncomfortable subject matter, H.T. was able to freely discuss what happened to her and did not appear to be traumatized by doing so.
In concluding that H.T. was likely to suffer psychological distress if required to testify, the juvenile court relied on the fact that after disclosing Father's abuse in February 2022, H.T. reported that she swallowed bleach in an effort to kill herself, and soon afterwards she cried during an interview with law enforcement. While we in no way seek to minimize the severe psychological distress H.T. experienced around the time she disclosed that Father had been abusing her, H.T. attributed her self-harming behaviors to her initial fear that Father would harm her family because she had disclosed his abuse. Subsequent Department reports do not suggest that H.T. continued to suffer similar trauma as time passed following the early days surrounding her disclosures.
Rather, the Department reports indicate that H.T.-who turned 16 years old a month after her disclosures-showed age-appropriate development and had been consistently participating in mental health counseling. In April 2022, H.T. was reported to be stable, enrolled in therapy, and back at school. In June 2022, H.T. reported that she was working to improve her grades and that she aspired to attend college before becoming a nurse. She relayed that she was a cheerleader and played multiple sports in school. She also explained that she had a job and enjoyed working because it allowed her to do things for herself instead of relying on Mother. In November 2022, before the jurisdiction hearing, H.T.'s therapist confirmed H.T. had been attending weekly sessions aimed at reducing reactive and hypervigilant behaviors in the home. The therapist described H.T. as "engaged and open to trying new coping skills."
In sum, substantial evidence does not support the finding that H.T. would suffer emotional harm if she were required to testify at the jurisdiction hearing when more than eight months had passed since her self-harming behaviors, and there was no subsequent indication that H.T. remained in a fragile mental state or that having to testify would again trigger her mental health issues.
Moreover, the juvenile court could have further protected against any harm by allowing H.T. to testify in chambers and without Father present. (See § 350, subd. (b); Amy M., supra, 232 Cal.App.3d at pp. 866-867 [procedure does not violate due process].) Despite Father raising use of the procedure as an option and offering to stay away from the courthouse and participate in the jurisdiction hearing remotely, the court did not consider it in denying his motion. (Cf. Daniela G., supra, 23 Cal.App.5th at pp. 1090, 1095-1096 [father forfeited issue by not raising use of the procedure before the juvenile court].)
B. Materiality of the child's testimony
The other factor to be weighed is whether the issue to be resolved would be" 'materially affected by the child's testimony.' " (Daniela G., supra, 23 Cal.App.5th at p. 1094, quoting Jennifer J., supra, 8 Cal.App.4th at p. 1089.) The juvenile court determined Father did not identify any "particularly relevant or compelling" evidence that he could obtain through H.T.'s testimony.
Although Jennifer J. suggested a third factor to be considered is whether "the child's desires and wishes can be directly presented without live testimony" (Jennifer J., supra, 8 Cal.App.4th at p. 1089), that factor need not be considered here, because unlike at a section 366.26 hearing, a child's wishes are not relevant to the court's jurisdiction findings. (See Daniela G., supra, 23 Cal.App.5th at p. 1094, fn. 4 [recognizing that the wishes of a child who is the subject of a dependency petition are "not relevant to the jurisdictional issue"].)
As in Daniela G., H.T.'s prior statements and credibility were central to this case. The record does not contain physical evidence of abuse. Nor did Mother, the other children, or any other interviewee share that he or she observed or knew of any abuse before H.T.'s disclosure. Rather, in sustaining the allegations against Father, the juvenile court rejected Father's defense theory after reviewing H.T.'s statements in the Department reports and forensic interview and finding H.T. very credible based on the consistency of her statements, the emotion she displayed in some of her interviews, and the fact that her account was consistent with typical patterns of sexual abuse.
Father sought to challenge H.T.'s credibility by probing her prior statements through live testimony. Courts have long recognized live testimony plays a "vital role" in assessing a witness's credibility. (In re M.M. (2015) 236 Cal.App.4th 955, 964; see, e.g., In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405 [court should have allowed cross-examination of minor's caregiver where there was "clear credibility contest" between parent and caregiver whose statements were in social services report].) Cross-examination has been recognized as"' "the greatest legal engine ever invented for the discovery of truth," '" with its chief purpose being" 'to test the credibility, knowledge and recollection of the witness.'" (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733; see also In re Brenda M. (2008) 160 Cal.App.4th 772, 777 ["The importance of cross-examination cannot be doubted: 'Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.' "].) It is also well understood that cross-examination is "largely exploratory," and generally does not require an offer of proof because "counsel often cannot know what pertinent facts may be elicited." (Tossman v. Newman (1951) 37 Cal.2d 522, 525; accord, Alford v. United States (1931) 282 U.S. 687, 692.)
Nonetheless, Father informed the juvenile court of multiple specific topics he wished to probe on H.T.'s cross-examination, such as H.T.'s history of lying to Mother and law enforcement to avoid getting into trouble, including making up a story that she had been kidnapped. Father also sought to ask H.T. about her inconsistent statements as to when she first told Mother of Father's abuse, and about the timing of her disclosure of Father's abuse, particularly in relation to previous Department investigations and Mother's discovery of her sexual relationship with an older man.
Not only were these areas of inquiry designed to challenge H.T.'s credibility, they were also aimed at developing further evidence to support Father's defense theory. (See Fost v. Superior Court, supra, 80 Cal.App.4th at p. 733 [crossexamination may be used to" 'elicit additional evidence' "].)
Father argued that H.T. fabricated the allegations of his abuse to deflect responsibility away from her sexual relationship with an older man. Father's theory was that in fabricating allegations of his abuse, H.T. would be seen as a victim and spared more severe punishment from Mother. In rendering its jurisdiction findings, the juvenile court rejected Father's theory as illogical and explained Father had no good explanation for why H.T. was at his home. But in precluding H.T.'s cross-examination, the court prevented Father from a primary means by which he could produce evidence to support his contention that his home provided H.T. with safety from her "rocky relationship" with Mother.
Father also sought to question H.T. regarding other evidence in the record that was relevant to the Department's allegations. For example, Father intended to ask H.T. why sexual content on her phone from a contact named "Dumb tiny dwarf man" was being attributed to him when H.T. recognized Father as "a really heavyset guy." Father also could have asked H.T. about her statement that Mother did not force her uncle to leave the home after H.T. reported the uncle had molested her. If further examination showed those statements were untrue, they could have undermined H.T.'s credibility and supported Father's theory that her allegations against him were similarly fabricated. (See People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457 [victim's prior false accusation of sexual abuse bears on the issue of their credibility].)
Father's coherent defense theory and his identification of numerous alleged discrepancies and ways to impeach H.T. distinguish this case from Daniela G., in which the court held that excluding the stepdaughter's testimony was proper in part because the father had not challenged any specific details of her allegations or identified any basis on which he hoped to impeach her. (Daniela G., supra, 23 Cal.App.5th at p. 1095.) Although we tend to agree with the juvenile court that H.T.'s statements in her numerous interviews appear to be consistent and credible, and that is certainly an important consideration, we cannot say it would have been impossible for Father's intended cross-examination to poke holes in her story or to illuminate credibility issues that would give the court pause in deciding whether to sustain the petition. Thus, in weighing whether cross-examination would materially affect the disputed issues of whether Father physically and sexually abused H.T., this case is somewhat closer to Amy M., where the minor's testimony was found to be potentially important, than it is to Jennifer J. and Daniela G., where ultimately the court found cross-examination would not yield testimony that affected any disputed issues.
C. Balancing of likely harm to H.T. against materiality of her testimony
"Due process is a flexible concept which depends upon the circumstances and a balancing of various facts." (In re E.S. (2011) 196 Cal.App.4th 1329, 1340.) On balance, we conclude that here the record does not establish the threat of psychological harm outweighed the material effect H.T.'s testimony could have had at the jurisdiction hearing. (Daniela G., supra, 23 Cal.App.5th at pp. 1091-1092.) Our weighing of these factors might well be different if there was a showing that H.T. would be psychologically damaged from having to testify. But there was none, and Father made at least some showing that H.T.'s testimony could have affected the resolution of disputed issues.
In addition, the nature of the allegations and the procedural posture of the case bear on our analysis. In the dependency context, there is no more crucial proceeding than a jurisdiction and disposition hearing where a parent is alleged to have sexually abused a minor. As stated in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1754, "[t]he hearing on a contested petition alleging child sexual abuse is . . . extraordinarily important.... With the exception of death penalty cases, it is hard to imagine an area of the law where there is a greater need for reliable findings by the trier of fact. The consequences of being wrong-on either side-are too great."
Given all these circumstances, we conclude the juvenile court abused its discretion in denying Father's due process right to cross-examine the accusing witness, H.T.
4. Denial of Father's Due Process Right Was Not Harmless Beyond a Reasonable Doubt
A denial of a parent's due process right to cross-examination requires reversal unless the error was harmless beyond a reasonable doubt. (In re Dolly D. (1995) 41 Cal.App.4th 440, 446; Amy M., supra, 232 Cal.App.3d at p. 868.) As discussed, the court sustained the allegations against Father based almost exclusively on H.T.'s statements, which the court found very credible. The parties agree that in considering whether the denial of Father's right to cross-examination was harmless, we should exclude H.T.'s reported statements and ask whether sufficient evidence remains to sustain the juvenile court's findings. (In re Dolly D., at p. 447 [juvenile court's denial of father's due process right to cross-examine social worker regarding statements in the jurisdiction report was not harmless, where cross-examination "could have demonstrated the lack of support" for social worker's statements, and no other evidence supported the court's jurisdiction findings]; cf. CSV Hospitality Management LLC v. Lucas (2022) 84 Cal.App.5th 117, 125 [reversing issuance of workplace violence restraining order where restrained party was denied right to cross-examine employee on whose behalf request was filed, "[b]ecause we cannot know what she would have said on cross-examination, or the effect such testimony might have had on the trial court's decision"]; In re Dorinda A. (1992) 10 Cal.App.4th 1657, 1663.)
Setting aside H.T.'s statements, the only other evidence to which H.T. points are reports of photographs on her phone that showed her wearing lingerie and Father's gold chain at his home; Mother's statement that H.T. exchanged sexual content with a phone contact named "Dumb tiny dwarf man," whom Mother stated was Father; and Father's admission that he lied to Mother about needing H.T. to babysit A.S. Without more, this evidence does not prove beyond a reasonable doubt the allegations that Father physically and sexually abused H.T. Thus, the error in denying Father his due process right to cross-examine H.T. cannot be regarded as harmless beyond a reasonable doubt, and reversal is required.
5. Father's Second Appeal Is Moot
In appealing the disposition order on the subsequent section 342 petition against Mother, Father asserts the court erred in denying his request to place A.S. with him (on the condition that she reside with her paternal aunt). Father contends that although he completed all of the programs the juvenile court ordered him to do following the disposition on the original petition, the juvenile court did not grant his request for placement because he did not admit that he had sexually abused H.T.
Our reversal of the jurisdiction and disposition orders on the original petition and remand for a new jurisdiction and disposition hearing render the second appeal moot, because we are unraveling the case back to the point where the court must reconsider whether to take jurisdiction on the original allegations under section 300. (In re D.P. (2023) 14 Cal.5th 266, 276 ["A case becomes moot when events' "render[ ] it impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any effect[ive] relief."' "].) Accordingly, the appeal from the disposition order on the section 342 petition is dismissed.
Based on the disposition of Father's appeals, we need not address the Department's motion to dismiss Father's second appeal as moot in light of the juvenile court's subsequent determination that returning A.S. to his custody would be detrimental to her best interest.
DISPOSITION
The jurisdiction findings and disposition orders on the amended section 300 petition are reversed and the cause is remanded with instructions to conduct a new jurisdiction and disposition hearing. The appeal from the disposition orders on the section 342 petition is dismissed. A.S. is to remain in her current placement pending further proceedings and orders of the juvenile court.
We concur: MARTINEZ, P. J. SEGAL, J.