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In re Daniela G.

California Court of Appeals, First District, First Division

May 29, 2018

In re DANIELA G., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
W.G., Defendant and Appellant.

          Superior Court of the County of San Francisco County Super. Ct. No. JD17-3114 Hon. Susan M. Breall Judge

          Joseph T. Tavano, First District Appellate Project Counsel for Defendant and Appellant

          Dennis J. Herrera, City Attorney Kimiko Burton, Lead Attorney Elizabeth McDonald Muniz, Deputy City Attorney Counsel for Plaintiff and Respondent

          Humes, P.J.

         W.G. (father) was accused of molesting his 13-year-old stepdaughter (stepdaughter) and grooming his eight-year-old daughter, Daniela G., for sexual abuse. He challenges an order finding dependency jurisdiction over Daniela, awarding sole custody of her to his wife (mother), and dismissing the case. In a claim we reject, he argues that he was denied due process because the juvenile court refused to require Daniela and stepdaughter to testify at the combined jurisdictional and dispositional hearing.

         In certain circumstances, a witness may be excused from testifying when found “unavailable” due to a physical or mental illness or infirmity, including when the witness is a victim of a crime and would experience sufficient trauma if forced to testify. (Evid. Code, § 240, subds. (a)(3), (c).)[1] But because this statute has significant limits on its applicability, case law has recognized a broader basis for excusing a child from testifying in a dependency proceeding. A juvenile court can, consistent with a parent's due process rights, refuse to compel the testimony of a child who is otherwise available when “the possible benefit derivable from [the] testimony would not warrant the [psychological] injury it would cause.” (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1085-1086, 1088 (Jennifer J.).) Jennifer J. announced this principle in the context of excluding a child's testimony at a selection-and-implementation hearing under Welfare and Institutions Code section 366.26, and no published decision has explicitly extended it to apply to jurisdictional and dispositional hearings. We do so here, and we conclude that the juvenile court properly applied the principle in excusing Daniela and stepdaughter from testifying. We therefore affirm.

         I. Factual and Procedural Background

         In late April 2017, stepdaughter told her maternal uncle, who resided in the family home, that she was upset because father was in a bedroom with Daniela. The uncle listened at the bedroom door, and he heard Daniela say, “You need to put your clothes on, ” and father say, “C'mon mami[, ] give me a massage.” The uncle immediately called mother, who came home and found the bedroom door locked. After mother knocked, father opened the door and then got into the bed. Daniela was also in the bed and “ ‘looked afraid.' ” Later, mother found a note stepdaughter had written in which she expressed suicidal thoughts. When asked about the note, stepdaughter told mother that father had been molesting her.

         Soon after, mother took stepdaughter to the police station to make a report, and stepdaughter and Daniela were interviewed at the Child and Adolescent Sexual Abuse Resource Center (CASARC). Stepdaughter said that father “had touched her vagina, breasts[, ] and butt” and “had penetrated her vagina with both his penis and his fingers.” The sexual abuse had been going on for two years, and she was afraid the same thing would happen to Daniela. Daniela did not disclose any abuse, although she said she sometimes gave father massages. Both girls denied any mistreatment by mother. Physical exams of the girls did not reveal any indications of sexual abuse.

         Daniela and stepdaughter had been the subject of a child welfare investigation in 2015 after father was accused of viewing child pornography on his computer. He denied doing so but, against mother's wishes, he kept a computer in the home after that investigation was closed. Mother reported that she and father had a “toxic” relationship, and she “worrie[d] that... father sexually abused [stepdaughter] to get back at her.” Father was arrested, and when contacted in jail, he “denied abusing [stepdaughter] and provided no further information.”

         In early May 2017, real party in interest the San Francisco Human Services Agency (Agency) filed a petition seeking dependency jurisdiction over Daniela under Welfare and Institutions Code section 300, subdivision (b) (failure to protect) and subdivision (d) (sexual abuse) on the basis that she was at risk of harm based on the bedroom incident and father's sexual abuse of stepdaughter.[2] At the detention hearing, the juvenile court placed Daniela with mother and ordered that father not have any visitation. It also granted a restraining order protecting mother, Daniela, and stepdaughter from father.

         The June 2017 dispositional report recommended that the petition's allegations be sustained, the petition be dismissed, and mother, who was in the process of divorcing father, be awarded sole custody of Daniela. Mother stated that she believed stepdaughter “100 percent” and had “no doubt” that the allegations of sexual abuse were true. Father continued to deny the allegations and said he did “not know why [stepdaughter] would lie, ” though he speculated that she was aware his and mother's “relationship [was] disintegrating” and might be taking mother's side. He opposed the Agency's recommendations and expressed a desire for shared custody of or visitation with Daniela. Although Daniela had stated during her CASARC interview that she would be “sad” if separated from father, she now said she did not want visits with him.

         Father subpoenaed Daniela to testify at the July 2017 combined jurisdictional and dispositional hearing. Shortly before the hearing, her counsel filed a motion to quash the subpoena under section 240 and Jennifer J. because testifying could cause her “psychological injury.” The motion also sought admission of Daniela's statements in the Agency reports and CASARC interview under the child dependency hearsay exception. (See In re Cindy L. (1997) 17 Cal.4th 15, 18.) Father opposed the motion, arguing that a finding of unavailability under section 240 based on a risk of psychological harm required an expert opinion that the child would be traumatized by testifying.

         Father apparently also subpoenaed stepdaughter, and counsel was appointed to represent her for purposes of the combined jurisdictional and dispositional hearing. No written motions involving any such subpoena are in our record, but stepdaughter's counsel at the hearing alluded to a request that stepdaughter be found unavailable to testify. Counsel noted that she had obtained a letter from the clinician who had conducted stepdaughter's Child and Adolescent Needs and Strengths (CANS) assessment, in which the clinician stated that stepdaughter was “experiencing significant psychological symptoms, ” including symptoms of PTSD, and was “very vulnerable.” The clinician also stated that the stress of testifying would put stepdaughter at risk given her “history of self-harm and suicidal ideation.” The juvenile court deferred ruling on “the motion regarding not having either child testify” until other evidence had been presented.

         Two social workers testified at the hearing. The social worker in this case opined that having Daniela testify would be “extremely detrimental” because of her age and the nature of the allegations against father. The worker also testified, as to stepdaughter, that “anyone who has been a victim of sexual abuse is emotionally traumatized by the events that ...

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