Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. CK67982. Jacqueline H. Lewis, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21..
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
A noncustodial, nonoffending father challenges the juvenile court’s disposition order. The court (1) refused to allow the father to testify by telephone because it prevented the court from assessing the father’s credibility, and (2) refused to give the father custody of the children. We affirm.
FACTS
In May 2007, the Department of Children and Family Services (DCFS) was alerted to the alleged physical abuse of 13-year-old Bianca N. by her mother Ana F. (Mother), who punched Bianca in the face. Bianca had a visible bruise on her nose. Bianca informed the social worker that Mother began abusing her when she was six, constantly hitting her with fists, belts, hangers and extension cords, and causing bruises and marks. Bianca frequently missed school because her buttocks were so bruised that she could not sit down. Bianca and her paternal uncle described Mother as “very violent.” Bianca was afraid to return to Mother’s home. Mother was arrested and DCFS detained Bianca and her half-siblings Anthony F. (born in 1994), Victor C. (born in 1999) and David A. (born in 2001). The whereabouts of three other children, Charlie C. (born in 2003), Ramon C. (born in 2004) and Tammy C. (born in 2006) were unknown. Mother denied abusing Bianca. The detained children (with the exception of Bianca) denied that Mother abused them.
Mother is not a party to this appeal.
There were numerous prior reports of physical abuse and neglect made to DCFS regarding this family, starting in 1996 (when Bianca was three years old). Most of the reports related to the treatment of Bianca. DCFS did not pursue any of the alleged abuses.
Appellant Victor C. (Father) claims to be the parent of Victor C., Charlie C., Ramon C. and Tammy C. However, Mother informed the court and DCFS that Tammy C. was conceived with another man, while Father was detained by immigration authorities. Mother and Father have been married since 1999. At the time the children were detained, Father’s whereabouts were unknown. Mother informed the court that Ramon and Charlie were with Father in Mexico, and Tammy was with a caregiver in Artesia. Father was deported to his native Mexico after accumulating a rather lengthy criminal record in the United States.
DCFS filed a petition alleging that Mother physically abused Bianca, placing the child’s siblings at risk of harm. The court found a prima facie case for detaining the children. The court ordered reunification services for Mother and referrals for parenting, counseling and anger management. Mother was given monitored visits with all children except Bianca, who wanted no contact with Mother.
DCFS subsequently filed an amended petition alleging that Mother struck Bianca, Anthony and Victor with her fists, extension cords, belts, hangers and a whip, causing bruising and unreasonable pain and suffering, and placing all of the children at risk of harm. The amended petition also alleged that Mother and Father engaged in violent altercations in the presence of the children, throwing things at each other and yelling derogatory names.
In its jurisdictional report, DCFS recounted Mother’s lengthy criminal history, which began when she was a juvenile and mostly involved drugs or alcohol. Father was in Mexico, “due to being deported.” In an interview, Victor (age 8) denied that Mother ever hit him or his siblings. When asked if Mother hit Bianca, Victor paused then replied, “I didn’t see that.” Victor wanted to return to Mother’s care and felt safe with her. David (age 6) was interviewed and indicated that Mother hit him on the buttocks with a fist and with an open hand. Moreover, David reported that Mother hit Victor with her hand and a belt. David denied being struck with any objects; however, he saw Mother hit Bianca with a shoe, a belt and her hand, and believes that Bianca is scared of Mother. David observed screaming matches between Mother and Father.
DCFS interviewed Anthony (age 12). Anthony opined that he was removed from Mother’s home because Bianca “told on mom.” He denied that Mother ever hit him or any of his siblings. At one point, he said that he saw a bruise on Bianca’s face, then immediately denied that he ever saw a bruise. He denied that Mother and Father ever fought, or that Bianca ever cooked for or took care of him. Anthony blamed Bianca for causing the dependency proceeding.
Bianca (age 13) stated that Mother has abused her since she was small. Mother kicked Bianca when she was five years old, leaving bruises on her legs, face and arms. Mother has stuck her with a belt. Bianca has scars from being hit. Mother punched Bianca in the face and hit her head against the wall, leaving a bruise on her face, then instructed Bianca to tell people that the mark occurred when a sibling threw a toy at her. She is scared of Mother. Bianca reported that Mother hit Anthony with an extension cord on his buttocks and legs, leaving them purpled. Mother also kicked Victor, but “not that much.” Mother hit David, but not Charlie or Ramon. Mother called the children bad names and expressed a desire to walk out on them. Mother made Bianca take care of her siblings in every respect. Bianca denied that Mother and Father hit each other, though at some point they threw shoes and hangers at each other.
Mother was adamant that she never physically abused Bianca, blaming Bianca’s paternal grandmother for coaching the child to lie. Mother described her discipline as consisting of telling a child to go to the bedroom or stand in a corner. Mother denied domestic violence with Father.
In a telephone interview, Father was asked if he knew why the children were removed from Mother’s custody. He indicated that he knew Mother was accused of child abuse; however, he did not believe that Mother hit Bianca or the other children. Like Mother, Father blamed Bianca’s paternal relatives for any problems. He never saw bruises or marks on the children. He and Mother only had arguments; he denied engaging in domestic violence.
The children’s teachers and baby-sitter described the children as dirty and neglected while in Mother’s care. The attitude and appearance of the children had improved in foster care. Mother engaged in arguments with people at the school. David’s father was interviewed and reported that he saw Mother hit Bianca, Victor and Anthony, who were scared of Mother.
On June 4, 2007, DCFS informed the court that Bianca had run away, taking a relative’s car. After she was located, she claimed that her caregiver, the paternal grandmother, was hitting her and was “mean.” Bianca was placed in shelter care. She promptly ran away a second time, and was still missing when the court held the jurisdictional hearing a month later. However, she sent a letter to the court stating that she lied about Mother hitting her on the nose, though “the rest is truth.”
The petition was adjudicated on July 20, 2007. After stating that Father was the presumed father of Victor, Charlie, Ramon and Tammy, the court dismissed the petition as to Charlie and Ramon because they were with Father in Mexico for the last six months and the court lacked jurisdiction over them. Mother pleaded no contest to the amended petition. The court sustained allegations that (1) Mother inappropriately physically abused Bianca, Anthony and Victor with her hands and a belt, causing unreasonable pain and suffering and posing a risk of harm to the children, and (2) Mother’s abuse of three children endangers all of their siblings. The court dismissed allegations that Mother and Father engaged in violent altercations.
In August 2007, DCFS detained Charlie (age 4) and Ramon (age 2) after Mother reported that Father returned the boys from Mexico and placed them in her care because he was unable to take care of them. Because of Mother’s history of abuse with the older children, DCFS took Charlie and Ramon into protective custody. A dependency petition was filed with respect to Charlie and Ramon. It contained no allegations against Father.
At the detention hearing, Father sought to have Ramon and Charlie released to him, claiming he had a job and a home and could care for them. He sent the boys back to Mother because he thought they would be better off in the United States and did not realize that they would be detained. The court stated that Father put the children at risk by sending them to Mother knowing that his other children (Victor and Tammy) were removed from Mother’s care. The court found a prima facie case for detaining Ramon and Charlie. On September 10, 2007, DCFS was directed to contact Mexican social welfare authorities to investigate whether Father could take custody of the children.
Court-ordered psychological evaluations of the family were submitted in October 2007. The evaluator felt that Mother was motivated to regain custody of the children, and was likely to benefit from counseling. He recommended that Mother should regain custody on a gradual, child-by-child basis, with appropriate in-home family counseling.
DCFS asked the court to change Mother’s visitation from unmonitored to monitored. Mother was about to be expelled from her anger management program due to poor attendance and tardiness, and the foster caregiver expressed concerns that Mother could not provide for the children: Mother asked the caregiver for money, for a crib, stroller, car seat, diapers and food when she was given weekend visitation. Mother only interacts with Victor during visits, not with David or Tammy. Mother has a new boyfriend who has a criminal history and was recently released from prison. The new boyfriend was with Mother when she picked up the children for visits. Mother incited the children to misbehave with the caregiver.
The new dependency petition was adjudicated in October 2007. The court sustained the petition, which corresponds to the earlier, sustained petition regarding Mother’s older children. The court conducted a contested disposition hearing as to all of the children. Mother submitted evidence that she completed anger management and parenting courses. Mother testified that she seeks custody of the children, including Bianca, and is willing to participate in family counseling sessions. Father was in Mexico, but his attorney requested that Father be able to testify by telephone. The court rejected telephonic testimony because “I would not be [able] to judge credibility” and because “[t]here’s no way for me to authenticate who he is.” Father’s attorney argued that as a nonoffending parent, Father is entitled to custody. Father did not realize the gravity of the dependency proceeding to Mother when he sent the children to live with her, and he poses no risk to his children.
The court declared all of the children to be dependents of the court, except Bianca (who was still missing). The court found a substantial danger if the children are returned to parental custody. With respect to Father, the court stated that “he knowingly, with counsel, placed the children in a very dangerous situation” by returning Ramon and Charlie to Mother after the court sustained the allegations in the first petition against Mother, when there was no indication that the court intended to give Mother custody. The court concluded that “placement with father would be detrimental to the safety, protection, physical[] and emotional well-being of those children.” The court was amazed that Mother felt she was done with counseling, yet had embarked on “yet another dysfunctional relationship with yet another criminal that she then exposes her children to recently . . . .” Father was ordered to participate in individual counseling “to address [the] case issues and child safety.” Father was given monitored visitation “until he presents himself to this court.”
DISCUSSION
1. Father’s Right To Testify By Telephone
Father contends that the trial court violated his due process rights by refusing to allow him to testify by telephone from Mexico. A party’s opportunity to testify and offer admissible evidence “is central to having his or her day in court.” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357.) The trial court’s refusal to allow testimony at a dependency hearing is reviewed for an abuse of discretion, and will not be overturned absent an arbitrary, capricious or patently absurd determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176.)
In Nada R., a father asserted that the constitutional guarantee of “‘a meaningful opportunity to present a complete defense,’” gave him the right to have witnesses testify by telephone from Saudi Arabia. However, the trial court “expressed concerns about the reliability of telephonic testimony” and refused to allow it. (Ibid.) The appellate court concluded that there was no abuse of discretion in that the father “was not prevented from offering the testimony, but only restricted in the manner of its presentation . . . .” (Ibid.)
“Oral testimony of witnesses given in the presence of the trier of fact is valued for its probative worth on the issue of credibility, because such testimony affords the trier of fact an opportunity to observe the demeanor of witnesses. [Citation.] A witness’s demeanor is ‘“part of the evidence”’ and is ‘of considerable legal consequence.’ [Citations.] [‘[O]ne who sees, hears and observes [a witness] may be convinced of his honesty, his integrity, [and] his reliability . . . because a great deal of that highly delicate process we call evaluating the credibility of a witness is based on . . .“intuition”’].)” (Elkins v. Superior Court, supra, 41 Cal.4th at p. 1358.)
Father wanted to testify telephonically on a matter that reflected upon his honesty and integrity: specifically, he wanted to deny that he understood the gravity of the dependency proceedings when he sent Ramon and Charlie to live with Mother after the court sustained child abuse allegations against her. Father was represented by counsel at the time that the allegations were sustained against Mother, and Father was interviewed by the DCFS social worker regarding the charges of abuse that were leveled at Mother. Under the circumstances, the trial court could reasonably feel that it could not assess Father’s credibility as a witness on the delicate matter of Father’s honesty and believability unless Father’s face, body language and overall demeanor were observable. Father gave no advance notice of his desire to testify telephonically, so that the court might have been prepared to have an audiovisual contact with Father. (See, e.g., Fam. Code, § 3411 [court may prescribe the manner in which testimony is given by a party or witness located in another state, including audiovisual means].)
Apart from the impact of Father’s absence on the court’s ability to assess his honesty, there are legitimate concerns about the admissibility of testimony given by telephone from a foreign country. Father was in Mexico at the time he sought to testify telephonically. It did not appear that Father would be returning to California, having been deported by immigration authorities. Promising to give testimony under penalty of perjury is a hollow promise indeed when it is unenforceable against a person who is beyond the court’s jurisdiction. (See Code Civ. Proc., § 2094, subd. (b) [“The court shall satisfy itself that the person testifying understands that his or her testimony is being given under penalty of perjury”].)
In sum, we cannot say that the trial court acted outside the bounds of reason by denying Father the opportunity to testify by telephone. The court expressed legitimate concerns about its inability to see Father, who intended to testify about a matter touching upon his honesty and integrity. The court also was concerned whether the person proposing to testify was actually Father. Finally, testimony given in a foreign jurisdiction is not safeguarded by California’s perjury laws. In this instance, the perjury laws are unenforceable against Father, who lives in Mexico. The court’s exercise of its intrinsic power to exclude inadmissible or unreliable evidence does not violate a party’s constitutional right to present a defense. (People v. Abilez (2007) 41 Cal.4th 472, 503.) “[I]n dependency proceedings, a parent’s right to due process is limited by the need to balance the ‘interest in regaining custody of the minors against the state’s desire to conclude dependency matters expeditiously and . . . exercise broad control over the proceedings.’” (In re Nada R., supra, 89 Cal.App.4th at p. 1176.)
2. Refusal To Give Custody Of The Children To Father
Father argues that the court erred by removing Ramon and Charlie from his care and custody. The argument has a faulty premise. The court removed Ramon and Charlie from Mother’s custody after Father transported the two boys from Mexico and left them with Mother because he lacked suitable child care. Given the facts, Father misplaces reliance on a statute that forbids removal of a child “from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated . . .” except under enumerated circumstances. (Welf. & Inst. Code, §361, subd. (c), italics added.) When the petition was filed with respect to Ramon and Charlie, the boys were residing with an offending parent (Mother), not with Father.
Father contends that the court erred by failing to place Victor and Tammy with him, because he is a nonoffending parent with whom the children were not residing at the time that the events arose that led to the dependency petition.. The court must place the child with a nonoffending parent who desires custody unless the court finds by clear and convincing evidence that the placement would be detrimental to the child’s safety, protection or physical or emotional well-being. (Welf. & Inst. Code, § 361.2, subd. (a).)
The court found that placement of the children with Father would be detrimental to their safety because Father put them in a “very dangerous situation” by leaving them in Mother’s custody. The evidence showed that Mother physically abused Bianca for many years. The evidence also showed that Mother abused Victor and Anthony using her hands and a belt. Father professed ignorance of this ongoing abuse, despite living in the household. Even after the court sustained the abuse allegations against Mother with respect to Bianca, Anthony and Father’s son Victor, Father continued to be in denial, sending Ramon and Charlie to live with Mother despite her abuse of three of her seven children. At the time he sent Ramon and Charlie to live with Mother, Father was represented by counsel and was apprised of the abuse by the DCFS social worker. This evidence is sufficient to support a finding that Father is indifferent to the safety and well-being of his children, and it would be detrimental to give custody to Father unless he demonstrates that he can protect the children from abuse.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J. CHAVEZ, J.