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In re Nicole A.

Court of Appeals of California, Fourth Appellate District, Division Three.
Nov 21, 2003
G031996 consolidated (Cal. Ct. App. Nov. 21, 2003)

Opinion

G031996 consolidated G032325.

11-21-2003

In re NICOLE A., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ELIZABETH A., Defendant and Appellant.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant. Benjamin P. de Mayo, County Counsel, and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. Marsha Faith Levine, under appointment by the Court of Appeal, for the Minor.


The juvenile court sustained a petition alleging Elizabeth A. (mother) sexually abused her daughter, Nicole A. (the child), and approved Orange County Social Services Agencys (SSA) proposed service and visitation plans. In mothers first appeal (Case No. G031996), she claims the court violated her right to due process of law, arguing "[t]he record in this case reveals a pervasive unfairness in the conduct of the hearing that fundamentally subverted the juvenile courts jurisdictional and dispositional findings and orders."

During the pendency of the first appeal, the court held a status review hearing. At that time, it terminated the dependency proceeding, awarded custody of the child to Gabriel A. (father) and directed the clerk to file its exit orders with the Family Law Division of the Los Angeles County Superior Court. To avoid the prospect of her first appeal being rendered moot (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316-1317; In re Michelle M. (1992) 8 Cal.App.4th 326, 329-330; but see In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547 ), mother filed a second appeal (Case No. G032325) from the termination order asserting the same basis for relief. Since mothers claims lack merit, we affirm both the judgment and termination order.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and father married in 1991 and divorced in 1996 due to financial problems. The child was born in September 1993. After the divorce, the child lived with mother in Los Angeles County. Father had visitation rights.

In July 2002, while staying with her maternal aunt for the summer, the child "disclosed . . . abuse that was sexual in nature" committed by "mother . . . and . . . mothers friend known as `Uncle Cliff." The aunt, who lives in Orange County, contacted SSA.

During the initial interview, minor told a social worker that, "every night" mother would call her into the "bedroom, . . . to lay on mothers bed," so that they could, in mothers words, "`. . . watch TV and snuggle." The child claimed mother then "`. . . touches my privates," using "her hands . . . in skin-to-skin contact." In addition, the child claimed mother had touched her "`with a machine[] . . . that `shakes when turned on." The child "described the `machine to be a linear object," and "drew a picture of the `machine indicating that it is about 4 inches long and ¾ inches in diameter, with gold trimming on one end and gold labels along the sides." She also saw "a magazine . . . in the bathroom with `naked girls sucking on boys [sic] privates . . . ." Mother then "asked `Uncle Cliff . . . `to do a sex talk with" the child, during which he said "that `its all OK for the people in the magazine to kiss, hug and take off their clothes." In addition, "Uncle Cliff" asked the child "if she wanted to `touch or `look at his privates," a request which she declined.

SSA took the child into protective custody. The same day, with police assistance, another social worker conducted a tape-recorded Child Abuse Services Team (CAST) interview with the child. During this interview, the child reported the touching had occurred at least once "`almost everyday" since she was in the first grade. While SSAs jurisdictional report described the CAST interview disclosures as "consistent" with the childs initial statements, during the latter interview the child disclosed "mother had also touched [her] with [mothers] foot and bitten and `squeezed [the childs] `boobs (nipples)." The child further claimed "she had also seen a tape . . . with her mother naked and touching other people." SSA filed this dependency proceeding, alleging claims of failure to protect the child, serious emotional harm, and sexual abuse.

During a July 30 interview, mother denied the childs allegations of sexual abuse. She also denied possessing a vibrator, a pornographic movie, and that Cliff T. (Cliff), a male acquaintance, had a sex talk with the child.

A social worker interviewed mother again on August 15. She continued to deny the childs allegations. Mother said "she believe[d] the child[s] . . . reason [for] l[ying] and mak[ing] these allegations up [is] because she wants to live with her [maternal] [a]unt . . . ." However, mother now admitted she owned a vibrator and that the child found it several months ago. Because she wanted the child "to be informed," mother "`told [her] what it was and that it was for my private parts." As for the magazine, mother also admitted "the child discovered a magazine which was sexual in nature and an inflatable doll[] which had a dildo[] attached." Mother then asked Cliff "to speak with Nicole," and he reportedly told her some people wear "sexy clothes" in magazines, "[b]ut that it was not for Nicole to do . . . ." Cliff also apparently told her "if anyone made her grow up too soon to come and talk to him."

After the second interview, the social worker learned from Roxanne Lipton, mothers therapist, that mother had worked in the adult film industry. When contacted again, mother admitted that two years earlier, she worked as an adult film actress for several months, participating in approximately 20 to 25 films.

Although claiming to believe the child, father denied mother engaged in bizarre sexual behavior, used illegal drugs, or abused alcohol during their marriage. Leah A., a paternal aunt with whom SSA initially placed minor, admitted the child had been "manipulative" and told "`little lies." The child received a medical examination in early November, but no physical findings of abuse were discovered.

After numerous continuances, the court commenced a combined jurisdictional and dispositional hearing on January 14, 2003. The hearing continued over portions of five days.

Without objection, SSA introduced six social service reports and made the two social workers that prepared the reports available for questioning. Father submitted without presenting any further evidence. In addition to cross-examining the social workers, mother called the child and six other witnesses.

The child testified mother patted her on the chest for several minutes with open hands in a manner that made her feel uncomfortable. She also claimed mother would place a hand on her buttocks and shake her back and forth for several minutes, sometimes leaving scratches. In addition, the child testified mother would place her fingers on the childs skin between the childs legs and insert the vibrator into her vagina. The child stated mother told her the machines purpose "was to massage your private parts," but that "it hurt" her. Mother would not stop even though the child asked her to do so. Sometimes minor pulled away from her mother. She described the vibrator and, at the courts request, drew a picture of it. The court described the object drawn by the child as cylindrical in shape, "[b]etween four and five inches" long, and "[a]bout an inch" in diameter.

The paternal aunt testified the child "is sometimes less likely to tell the truth." Ms. C., the owner of a day care center that cared for the child from age three until the summer of 2002, testified she had experienced problems with the child, including "taking things that didnt belong to her" and then "lie about it . . . ." While the childs acts of theft ceased, "the lying did not stop." Although trained to spot signs of child sexual abuse, Ms. C. did not observe the child exhibit any of them. Ms. M., an employee of the day care center, testified she saw mother and the child together during the childs first and second grade years and said they appeared to have a close relationship. Mother would hug, kiss, and touch the child, and the latter never pulled away from her. Although the child testified she told Ms. M. about mothers conduct, Ms. M. denied she said anything about it.

Lisa Seguin, a Los Angeles Police Department detective, interviewed the child at the hospital the day of her medical examination. Seguin testified she compared the childs responses with what she "recalled hearing" on the CAST tape and described them as "fairly consistent" concerning "when . . . the abuse started, . . . where the abuse occurred, statements made by her mother, [and] things that were used to touch her . . . ." However, Seguin stated the child did not say mother penetrated her vagina with either mothers hand or the vibrator.

After closing argument, the court noted "this is not an easy" or "a pleasant case." It sustained the petition, finding "the allegations . . . true by a preponderance of the evidence." The court recognized the childs statements were "inconsistent" in some respects, but noted "one of the things in which Nicole has been consistent throughout was the description of the machine." The court also stated there was "undisputed" evidence the child "had access to pornographic magazines," had a "sex talk with Uncle Cliff," "sle[pted] naked with mother," and "[s]nuggl[ed] with mother . . . ."

DISCUSSION

Introduction

Mother contends the juvenile court denied her due process of law by sustaining "rampant and frequently incorrect objections," refusing to allow her "expert witness" testify about "problems infecting the investigation of this case," and denying her request to recall the social worker. Without question, a party can base a denial of due process on the manner in which the trial court conducts a hearing. (See In re Stacy T. (1997) 52 Cal.App.4th 1415, 1422-1424; In re Dolly D. (1995) 41 Cal.App.4th 440, 444-445; Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 898-902.) But such a claim requires a party to present more than mere conclusory complaints concerning a few evidentiary rulings made during an extended hearing. This fact is particularly true where, as here, mother fails to support her arguments by citation to legal authority, and her discussion of several of the challenged rulings misrepresents the record.

The Evidentiary Rulings

Initially, mothers opening brief cites six rulings where the trial court sustained objections to questions asked by her trial counsel. A review of each ruling reflects the trial court committed no error.

First, mother complains the trial court erroneously sustained a relevancy objection to a question her attorney asked the child "about" what the day care owner said "was bad touching." However, the child had already testified she did not "know the difference between . . . a good touch and a bad touch." Furthermore, as the trial judge noted, "The allegations are not simply bad touching. They are very specific." Counsel was allowed to question the child concerning how, when, and where mother touched her.

Next, mother contends the trial court erred by sustaining a "vague as to time" objection to the following question: "If Mommy was using the machine or her hands inside your vagina, was she touching any other part of your body at the same time?" This claim misstates the record. Immediately thereafter, mothers attorney rephrased the question and received an answer to it.

Mother also challenges the courts rulings on three questions she contends were asked of the day care center owner, Ms. C. First, the portions of the appellate record cited in support of these claims concern testimony given, not by Ms. C., but rather the day care centers employee, Ms. M. Second, each one of mothers arguments misstates the record.

Mother complains the trial court sustained lack of foundation and vagueness objections to a question concerning whether Ms. M. "ever s[aw] Nicole sad?" However, Ms. M. had previously testified she never saw any emotional strain between mother and the child, never saw them angry at each other, and never saw the child pull away from mother. In addition, the court allowed Ms. M. to testify she never had reason to report to either mother or Ms. C. that the child "appeared . . . unhappy."

Counsel questioned Ms. M. about the childs relationship with father. Ms. M. testified the child "didnt want to go" visit her father, and "was crying." The childs attorney objected on the ground of hearsay, and the court struck the latter part of this answer. Shortly thereafter, the following interchange occurred: "Q. [W]as there any reason for you to believe that Nicole did not want to visit with her father? [¶] A. Yes. [¶] Q. And what was that? [¶] A. She was crying to me. [¶] Q. And what was she crying about? [¶] A. She didnt want to go see her Dad. She wanted to see her Mom. She didnt want to miss day care."

Mother complains the trial court sustained a nonspecific objection to a question of whether "every time [the child] was [at the day care center], . . . you and/or Ms. Sue would be spending that time with her . . . ?" But the objection came after the witness answered the question and the objecting party did not move to strike the answer. Furthermore, the ruling came after Ms. M. had been allowed to testify that the child attended the center after school while in first and second grade and that "as much time as [the child] spent in school, she would be spending with you and/or Ms. Sue . . . ."

Finally, mother complains the trial court erroneously sustained vague and lack of foundation objections to a question asked of Jennifer Sanders, the social worker who conducted the CAST interview, concerning "the mechanism as to how [the video and audio] tapes are made." Again, her argument misrepresents the record. Immediately after the foregoing ruling, mothers counsel asked Sanders, "do you know what kind of equipment is used?" The witness responded, "I do not. I dont work with it." Sanders also testified her sole responsibility was to conduct the interview and she did not know who took possession of the tapes after the interview was completed.

Exclusion of Mothers Expert Witness

Mother called Roxane Lipton, her personal therapist, to testify concerning the "handling of this case," including "the failure of [SSA] to properly notice the mother, . . . the inappropriateness[] or the inadequacy[] of the initial CAST tape interview," plus "reviewing all of the reports and finding multiple inconsistencies . . . ." Her attorney said she expected Lipton to testify "as to whether or not the mother had actually done this, . . . and whether or not the statements by the child are accurate or truthful." The court eventually allowed mother to question Lipton in an attempt to establish a foundation that she "has knowledge, training and experience that far surpasses anything this court has, for evaluating the[ social service] reports . . . ." In the event "the foundation is sufficient . . . and . . . testimony is elicited regarding the review of the reports, it is possible . . . a very carefully crafted hypothetical might be elicited from the witness" concerning the childs truthfulness.

After Lipton testified concerning her expertise and the scope of her proposed testimony, the court decided to exclude it. "[T]he court is not willing to allow [Lipton] to testify to the manner in which the reports were prepared . . ., nor the manner in which the investigation was conducted. [¶] The court is further unwilling to allow [Lipton] to testify . . . as to her opinion . . . whether or not the allegations made by the minor are true . . ., or whether the minors statements were consistent . . . throughout the reports. [¶] . . . The court . . . does not need assistance from any witness to direct [it] as to what is and is not consistent, what should and should not be found to be true. That is what the court is for."

A trial courts decision to exclude expert opinion testimony falls within its broad discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) SSAs counsel noted mother received adequate notice of the allegations, and an opportunity to both appear in the dependency proceeding and oppose the petition. With respect to the veracity of mother, she did not testify as a witness at trial. As for minors credibility, Lipton never interviewed her. Furthermore, courts have long disfavored the use of expert testimony concerning the credibility of another witness. (People v. Ayala (2000) 23 Cal.4th 225, 263; People v. Alcala (1992) 4 Cal.4th 742, 780-781; People v. Johnson (1993) 19 Cal.App.4th 778, 786-790.) Although an exception previously existed in cases of sexual assault (see In re Darrell T. (1979) 90 Cal.App.3d 325, 335), the Legislature statutorily overruled it when it enacted Penal Code section 1112 (People v. Anderson (2001) 25 Cal.4th 543, 575). This statute applies in juvenile dependency proceedings. (In re Dolly A. (1986) 177 Cal.App.3d 195, 201-202.)

Lipton was mothers therapist. Mothers attorney obtained a copy of the CAST interview audiotape and videotape before trial and received permission to have Lipton review them and assist counsel in preparing for trial. Mother called and questioned the social worker that interviewed the child during the CAST interview. She was also allowed to present evidence and argument concerning the inconsistencies in the reports and the childs propensity to lie. The record does not support a conclusion the court abused its discretion by excluding Liptons proffered testimony in this case.

Mother further complains it was unfair for the trial court to permit John Danczak, a former SSA social worker who prepared several of the reports, to testify while excluding Liptons testimony. She notes Danczak admitted this was his first child sexual abuse case while Lipton testified to her extensive experience in this area.

This contention misstates both the facts and the law. Danczak did not testify as an expert witness. Courts are authorized to receive and consider the reports and recommendations prepared by social workers. (Welf. & Inst. Code, §§ 281, 355; Cal. Rules of Court, rule 1450(c); In re Malinda S. (1990) 51 Cal.3d 368, 375-376, 379-382, partially superseded by statute as stated in In re Cindy L. (1997) 17 Cal.4th 15, 22, fn. 3.) But to satisfy due process, SSA was obligated to make the social workers who prepared the reports available for cross-examination by other parties. (Cal. Rules of Court, rule 1450(c); In re Malinda S., supra, 51 Cal.3d at pp. 382-385.) Here, SSA satisfied its legal obligation by making Danczak available for cross-examination. No attempt was made to establish him as an expert on child sexual abuse.

Denial of Mothers Request to Recall the Social Worker

As noted, Danczak prepared several of the social service reports admitted at trial. By the time of trial, Danczak no longer worked for SSA. Nonetheless, SSA subpoenaed Danczak, and he appeared and testified. During cross-examination, mothers attorney declared, "I will either need to put the CAST [tape] in, or allow the testimony of the person who heard it with me . . . ." SSAs attorney objected, noting "we are still on my case . . . ." The trial judge agreed, stating after "petitioner rests, . . . you can make your decision as to how you are going to proceed." When Danczak completed his testimony, all parties, including mother, agreed to excuse him as a witness.

After the court excluded Liptons testimony, mother asked to recall Danczak. Mothers attorney explained, "[W]e thought that we would be able to have Ms. Lipton . . . explain either the inadequacies or the incompleteness of these reports . . . . And when I was told I couldnt, I was told I had other means to do that. [¶] One of the . . . simplest means to do that would be to use . . . Mr. Danczak[] . . . ." Counsel also stated, "[I]f Mr. Danczak is the person who wrote all of these reports or compiled them, then the question will be, why do the words keep changing[?] Why is what was said is supposed to be on the CAST tape, which he admits is unintelligible, changing from report to report?" The court denied mothers request to recall Danczak: "[T]hose inconsistencies, if in fact they are inconsistencies, were in the reports from the outset. . . . [T]he preparer of the report was on the stand. You had ample opportunity to cross-examine him on those perceived, or actual, inconsistencies. [¶] Nothing has changed . . . . And because of that and because Mr. Danczak was here and all counsel were given equal and ample opportunity to cross-examine him at length and in detail, and either did or did not choose to do that, . . . the court is unwilling to allow you to recall him at this point."

The determination of whether to permit reexamination of a witness who has been "once examined . . . as to the same matter" falls within the trial courts discretion. (Evid. Code, § 774.) The juvenile court afforded mother an opportunity to fully cross-examine Danczak concerning the contents of the social service reports he prepared. Her trial attorney made a tactical decision to excuse Danczak as a witness and leave questions concerning alleged inconsistencies in the reports until she called Lipton. The mere fact this approach backfired, did not give rise to a right to recall Danczak several days later. No abuse of discretion is shown in this case.

DISPOSITION

The judgment and postjudgment termination order are affirmed.

WE CONCUR: OLEARY, J., MOORE, J.


Summaries of

In re Nicole A.

Court of Appeals of California, Fourth Appellate District, Division Three.
Nov 21, 2003
G031996 consolidated (Cal. Ct. App. Nov. 21, 2003)
Case details for

In re Nicole A.

Case Details

Full title:In re NICOLE A., a Person Coming Under the Juvenile Court Law. ORANGE…

Court:Court of Appeals of California, Fourth Appellate District, Division Three.

Date published: Nov 21, 2003

Citations

G031996 consolidated (Cal. Ct. App. Nov. 21, 2003)