Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK62255, Stephen Marpet, Commissioner.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
The juvenile court declared 10-year-old B.L.J. and 8-year-old B.K.J. dependents of the court and removed them from their parents’ care and custody based in part on its finding that their father, B.J., (Father) had raped, battered and threatened to kill their 13 year-old half-sister, K.A. The court denied Father reunification services with his children based in part on his sexual abuse of K.A. Father contends that the court committed prejudicial error in curtailing his cross-examination of K.A. and that the evidence is insufficient to support the allegations that he sexually abused her. We affirm the judgment.
K.A. was initially named in the dependency petition but the court dismissed her after she was declared a ward of the court in delinquency proceedings.
FACTS AND PROCEEDINGS BELOW
The three minors came to the attention of the DCFS in June 2008 when it received reports that their mother had left the children at home alone for a week and that K.A. had been raped by her step-father. The court ordered the minors detained in foster care and set the matter for a contested jurisdictional and dispositional hearing. We address the amended petition and its supporting evidence insofar as they pertain to Father.
In substance, the amended petition alleged that B.L.J. and B.K.J. came within the provisions of Welfare and Institutions Code section 300, subdivisions (a), (b), and (d) because Father “sexually abused the child [K.A.]. Such sexual abuse consisted of [Father] forcibly raping the child by engaging in sexual intercourse with the child. [Father] slapped the child and threatened to kill the child when the child resisted [Father’s] forcible rape of the child.... Such sexual abuse of the child by [Father]... places the child and the child’s siblings at risk.” The petition further alleged that Father “has a criminal history of a conviction of sexual battery [and] is a registered sex offender.”
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
1. The Department’s evidence.
At the jurisdictional hearing the DCFS submitted the case on the social study reports which the court admitted into evidence without objection. These reports purportedly contained statements by K.A. and others to DCFS workers and the police regarding Father’s alleged rape, physical assault and death threats.
The Detention Report stated that in June 2008 K.A. told a DCFS social worker that “[Father] raped her two times when mother was at work.” K.A. also told the worker that “that when [Father] was forcing her she resisted him and he slapped her and threatened to kill her.” In this interview K.A. admitted that a month earlier she told the same DCFS worker and the police that Father had not abused her. She explained that she lied because she did not want to be placed in foster care. A worker at a children’s shelter and one of the children’s neighbors also told the DCFS worker that K.A. had told them Father had raped her twice. K.A. repeated her rape and abuse allegations to the DCFS worker in a follow-up interview in July 2008.
A DCFS report prepared on July 1, 2008 for the jurisdictional hearing quotes K.A. as telling the social worker that Father raped her at her home on two consecutive days in February 2008. According to the report K.A. stated that the first time “‘he grabbed me by my arm, then threw me on the bed. I started crying. He was telling me to shut up. He choked me and started pulling down my pants. Then he put his stuff in me.... The next day he did the same.” The report also quotes B.K.J. telling the social worker that K.A. told her that Father had raped her. In addition, B.K.J. told the worker that she saw Father rub K.A.’s leg “almost going up to her private.”
The petition does not allege the leg-rubbing incident as a ground for the children’s dependency.
The DCFS also submitted a report prepared by Los Angeles police officers recounting their interview with K.A. on May 27, 2008, in which she described sexual advances by Father on several occasions, including the leg rubbing incident, but did not claim that he raped her. A DCFS worker was present at that interview.
Finally, the DCFS presented evidence that in 1996 Father was convicted of misdemeanor sexual battery and required to register as a sex offender.
At the time of the jurisdictional hearing in February 2009 Father was serving a six year sentence for violation of parole, violation of “Jessica’s Law” and sexual battery.
The DCFS did not offer any testimonial evidence.
2. Father’s evidence.
Father called K.A. to the stand to cross-examine her about her accusations that he raped her. Before K.A. took the stand counsel for the DCFS suggested that she testify in chambers but the court rejected this suggestion.
K.A. testified that she was now 14years of age and that Father had raped her and sexually abused her in other ways in February 2008. When K.A. testified that she told the police “everything” that Father did to her Father challenged that testimony pointing out that there was nothing in the police report about her being raped. K.A. initially admitted: “Okay. I didn’t. I guess I didn’t.” But when Father asked K.A.: “Why didn’t you tell the police that [Father] had had intercourse with you against your will?” K.A. did not answer directly. Instead she responded: “How am I going to tell you that? Were you there when I said it? No, you wasn’t. So how you going to tell me what I said? After a few more questions the court called a halt to the testimony. The court stated: “I don’t think it is in this minor’s best interest to proceed. I think she is physically not well, and I think it is inuring to her detriment to continue on with the allegations in this petition. She seems extremely distraught and upset, and I’m going to terminate any further questions.... I don’t think you will be able to question her any further.” Father objected to the court terminating his cross-examination. The court overruled the objection stating, “I’m also looking at a child who is extremely upset and unable to testify.... I’m going to make the finding today that she is not able to testify in the future.” K.A. was excused as a witness and the hearing was continued to the following day.
When the hearing resumed, Father renewed his objection to the court excusing K.A. from further testimony contending that he had a constitutional right to confront and cross-examine his accusers. The court again overruled the objection based on its scrutiny of K.A. as she testified. “What we have,” the court stated, “is a child who, on the stand, became literally catatonic and was shaking, was nervous, was unable to talk, and she was paralyzed.... This is a child who was traumatized by your client, allegedly, and she was so fearful of him, even though he is locked up in prison, outside in another county, that she couldn’t even verbalize what occurred. She kept referring to whatever is in the police report is what I said, and then when we asked her, she could not talk.” In reply to Father’s observation that there was no psychological evidence that K.A. was unable to testify the court stated: “There can’t be anything more clear than this child, who literally started shaking in front of my very eyes and started tearing up and couldn’t move and was literally in a state of shock.” Father responded that if the court was not going to allow him to complete his cross-examination of K.A. then “everything [should] be stricken that she said in this case.” The court denied the motion to strike.
In summarizing its evidentiary rulings the court stated: “The child is unavailable as a witness by reason of her intimidation of the court process and her inability to testify and is declared incompetent to testify and unavailable to testify under the appropriate evidence codes. And, accordingly, the statements in the... social worker’s reports will be accepted into evidence, and it is over Father’s objection.”
The court sustained the petition and ordered B.L.J. and B.K.J. suitably placed. Father filed a timely appeal.
Mother is not a party to this appeal.
DISCUSSION
I. TERMINATION OF K.A.’S CROSS-EXAMINATION
K.A. was 14 years of age when she testified; too old to fall within the special protection for child witnesses under Evidence Code section 765, subdivision (b). Nevertheless, the trial court has the authority in a proper case to curtail the examination of a child witness. (In re Kailee B. (1993) 18 Cal.App.4th 719, 723; In re Marriage of Okum (1987) 195 Cal.App.3d 176, 183.) This power derives from the court’s inherent power to carry out its duties and ensure the orderly administration of justice (In re Amber S. (1993) 15 Cal.App.4th 1260, 1264) and, in the case of a juvenile court, 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 child’s testimony... 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.” (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089.)
Evidence Code section 765, subdivision (b) states in relevant part: “With a witness under the age of 14... the court shall take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. The court shall also take special care to ensure that questions are stated in a form which is appropriate to the age or cognitive level of the witness.”
For the reasons we explain below, the court properly concluded that curtailing K.A.’s cross-examination was in the child’s best interest and that curtailment would not unduly prejudice Father.
The right to cross-examine witnesses at the jurisdictional hearing is implicit in section 355, subdivision (d) and explicit in Rule 5.534, subdivision (k)(1)(B) of the California Rules of Court. But even the Sixth Amendment right of a criminal defendant to confront his accusers may, in some cases, yield to “a State’s interest in the physical and psychological well-being of child abuse victims.” (Maryland v. Craig (1990) 497 U.S. 836, 853.) Here, the court described the effect of the cross-examination on K.A. as traumatic and observed that she appeared “physically not well,” “extremely distraught and upset,” “catatonic,” “shaking,” “nervous,” “unable to talk,” and “paralyzed.” Because the trial court had the opportunity to study the demeanor and appearance of the witness, and we did not, we accord the court’s observations great deference. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
Moreover, while cross-examination may be “the ‘greatest legal engine ever invented for the discovery of truth’” (California v. Green (1970) 399 U.S. 149, 158), nothing in the record suggests that terminating K.A.’s cross-examination compromised Father’s interest in “the discovery of truth.” Before the court terminated her examination K.A. testified under oath that Father raped her. By-and-large, her other testimony was consistent with her statements as reported by the DCFS workers and the police. The only deviation between K.A.’s testimony and her statements in the DCFS reports occurred when K.A. was asked if she reported the rape to the police. Her initial answer implied that she did report the rape, later she admitted “I guess I didn’t,” and, finally, she failed to answer the question why she didn’t tell the police about the rape. After that exchange, Father’s counsel began recovering ground she had covered before and the court terminated the examination. Given K.A.’s admission that she did not tell the police about the rape when they interviewed her, along with her failure to explain why she did not, it doesn’t appear that further cross-examination would have materially aided the court’s ability to determine whether K.A. was truthful in accusing Father of rape. Father had the opportunity under section 355, subdivision (d) to call as witnesses the police officers who interviewed K.A. and the DCFS worker who was present at the interview. He did not do so. Furthermore, Father could have taken the stand and denied that he raped K.A. He did not do that either.
“Q [Father’s counsel]: Did you tell everything that [Father] did to you to those two police officers?
We conclude, therefore, that Father did not suffer a violation of his right of confrontation by the court’s termination of K.A.’s cross-examination or its refusal to strike her testimony.
II. SUFFICIENCY OF THE EVIDENCE
A. Shifting The Burden Of Producing Evidence
At the close of the evidence at the jurisdictional hearing, the DCFS argued that under section 355.1, subdivision (d) the undisputed evidence that Father was a registered sex offender constituted prima facie evidence that B.L.J. and B.K.J. were children described in section 300, subdivisions (a), (b), (c) or (d) and shifted to Father the burden of producing evidence that his status as a registered sex offender did not bring his children within those subdivisions of section 300 or place them at substantial risk of abuse or neglect. (In re John S. (2001) 88 Cal.App.4th 1140, 1146.)
If the court accepted this argument, it erred. The burden-shifting provision of section 355.1, subdivision (d) does not apply to all registered sex offenders, only those whose offenses are listed in the statute. The DCFS concedes on appeal, and we agree, that the provision does not apply to Father because he was not convicted of any of the prerequisite sex offenses.
Father was convicted of misdemeanor sexual battery under Penal Code section 243.4, subdivision (d).
It does not appear from the record, however, that the court relied on section 355.1, subdivision (d) to sustain the petition. In announcing its decision the court stated that there was “sufficient corroborating evidence [of K.A.’s testimony] in the documents before the court to sustain and find by a preponderance of the evidence that the petition is sustained....” The court’s explanation suggests that it relied on the testimony of K.A. and the statements by her and her half-sisters contained in the DCFS reports to sustain the petition, not Father’s registration as a sex offender. But even if the court relied on Father’s status as a registered sex offender, the error was harmless because, as we discuss below, there is sufficient evidence in K.A.’s testimony and the DCFS reports to sustain the petition.
B. Evidence Supporting The Rape Charge
“A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to section 300 may be based....” (§ 355, subd. (b).) Father does not deny that K.A.’s hearsay statements to DCFS workers, a children’s shelter worker and one of K.A.’s neighbors provide ample support for the court’s finding of jurisdiction and its dispositional and family reunification orders. But, Father contends, section 355, subdivision (b) does not apply in this case because after the court terminated K.A.’s cross-examination Father moved that “everything be stricken that [K.A.] said in this case.” Father maintains that this motion triggered the requirement under section 355, subdivision (c)(1) that K.A.’s hearsay statements be corroborated by some other evidence and that no such corroborating evidence was introduced.
Section 355, subdivision (c)(1) states in relevant part: “If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding...” A proper objection under subdivision (c)(1) does not mean that the hearsay evidence is stricken. It simply means that the hearsay cannot be used as the sole basis for finding jurisdiction.
Assuming that Father’s motion to strike “everything... that [K.A.] said in this case” constituted a timely and specific objection to her hearsay statements in the DCFS reports, there are four exceptions to the requirement for corroboration under section 355, subdivision (c)(1). Corroboration is not required if “[t]he hearsay declarant is available for cross-examination.” (§ 355, subd. (c)(1)(D).) Not only was K.A. available for cross-examination, Father cross-examined her extensively about her allegations of sexual abuse until the court called a halt to the questioning out of concern for K.A.’s physical and emotional well-being. We conclude that the court did not err in sustaining the petition and denying Father family reunification without the need for evidence to corroborate K.A.’s hearsay statements.
DISPOSITION
The judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.
“A Yes.”