Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD18959
ELIA, J.Appellant A. P. challenges the orders of the juvenile court removing eight-year-old M. P. from parental custody and ordering out-of-home placement. She contends that there was not substantial evidence to support the juvenile court's jurisdictional findings and that she was denied due process when the juvenile court would not permit her to call M. as a witness at the jurisdictional hearing. We affirm.
Background
M.P. was born in June 2000. Two months later, her mother, A. P., called Child Protective Services accusing M.'s father, Mr. P., of hitting M., although A. had not seen this happen. In April 2001, A. reported that Mr. P. was making sexual comments about M. and handling her inappropriately. This report also proved to be unfounded. Over the next few years, many referrals followed involving increasingly bizarre and violent allegations. Investigators noted concern that "the mother's mental health problems were beginning to adversely affect the mental health" of M.
On May 10, 2008, seven-year-old M. called the San Jose police from her mother's residence to report that her father was mean to her and had touched her inappropriately and that she did not want to go back to his house. The responding police officer interviewed M. who told him that a woman named H. K. "has entered every house she had lived in every night since she was born. She said this woman enters the house, places a 'Lunesta' dissolvable drug tablet into her mother's mouth so she sleeps deeper, and then beats up her mother. She said this occurs every night and the woman wears a black bra, black mini-skirt, black fish-net [stockings], and knee-high black boots." M. had other accusations about H. K., including that on Christmas Eve night she fell asleep and awoke to find H.K. putting her middle finger "into the back of her bottom."
The police brought in Santa Clara County social worker Susan McGarry who interviewed A. and M. M. told McGarry that "although she sometimes has fun with her father, her father is evil and violent and beats her." She also demonstrated with a knife how her father's girlfriend had cut M.'s hand with a knife. M. said that as a reward for being so brave as to call the police, her mother was going to take her to the Build-A-Bear store.
A. told McGarry that Mr. P. "has been molesting M[.] since she was born. [A.] stated that the father and his girlfriend tied M[.] to a chair and had her watch the father and his girlfriend have sex." She also said that Mr. P. "and his girlfriend break into the apartment every night, drug her, rape her and beat her and her daughter." A. gave McGarry the names of a psychiatrist and two counselors whom she had consulted. The police determined that there was no evidence of physical or sexual abuse. McGarry "believed that A. is suffering from Paranoid Schizophrenia and that M[.] possibly is as well." She planned to investigate further.
In her investigation, McGarry discovered that there had been 13 prior referrals to Child Protective Services (CPS) concerning M. She learned that "since the birth of this child, the mother has been contacting the court, CPS, the police and now the FBI to allege that the father molests the child and that he and a 'monster woman' stalk the mother and child.... [McGarry] learned that the father has no girlfriend and has never had a girlfriend. The mother and the child use a specific name and say the woman is a Stanford surgeon. The father stated that he is an ATT telephone installer and cannot believe that anyone thinks a Stanford surgeon would date him."
In previous unsubstantiated referrals, A. said that she had moved herself and M. from their apartment to a homeless shelter to escape the nightly beatings. A. reported, however, that Mr. P. and his girlfriend were breaking into the shelter. Surveillance tapes failed to substantiate this claim. A. also said that Mr. P.'s girlfriend was taking M. to the restroom at her school and beating her.
McGarry discovered that in the past, M. was able to say that the monster woman did not exist but that sometimes her mother would badger her until she agreed with her. McGarry sought and obtained an order placing M. into protective custody asserting, "It is very concerning that the child is now sharing her mother's delusions. The child's prior two therapists both expressed concern that the child is exposed to the mother's delusional thinking." M. was taken into protective custody and the Department of Family and Children's Services (Department) filed a petition under Welfare and Institution Code section 300, subdivisions (b) [failure to protect] and (c) [serious emotional damage].
The report and addenda prepared by social worker Sallie Bearden for the jurisdictional hearing stated that A. was born and raised in Turkey and lived and worked there until coming to San Jose State University for graduate studies in economics. She and Mr. P. met when they were renting rooms in the same house. They moved in together in 1999 and M. was born in 2000. A. decided that she was "so in love with the infant and with being a mother" that she decided not to continue her studies. A. and Mr. P. separated in 2001.
The report summarized 16 prior CPS referrals and their resolutions. Although most of the reports were evaluated out as unfounded, there was growing concern over A.'s mental health. A. had taken M. to the pediatrician four or five times and to various therapists to determine if Mr. P. had molested M. A. went with M. to a hospital emergency room complaining that someone was injecting A. with drugs and beating her while she slept without leaving any marks. She said she was in pain from head to toe. A. told the medical personnel that the then four-year-old M. had explained that this was done by Mr. P. and the monster woman. A social worker noted "[t]he mother is displaying a paranoid thought disorder and she has involved her daughter into this false thinking. When the child was interviewed alone she could not sustain her story."
In a police report from 2000, when M. was about one month old, Mr. P. shoved A. on the shoulders, causing her to fall into a wall. This incident resulted in Mr. P.'s conviction for domestic violence. Other police reports involved A. telling the police that she was being stalked, or that her car was being vandalized by Mr. P. or his girlfriend, or that A. had found cables near her computer that she thought might be listening devices. The police found no evidence to substantiate these claims.
The jurisdiction report included a letter from Nicholas Hayes Ney, an adjunct professor in the Department of Psychiatry and Behavioral Sciences at Stanford Medical School. In Ney's opinion, A. was providing "better-than-adequate parenting to M[.]" Ney mentioned A.'s "concerns" about Mr. P. and his girlfriend mistreating M. Ney stated that "[w]hile elements of [A.'s] story stretch the imagination, what comes through in repeated discussions with her is her fear for M[.]'s safety from Mr. P[.]." Ney noted that a physician's assistant at one hospital had labeled A. as "paranoid" but that Ney believed "the real torment [A.] has suffered has left telling signs of Posttraumatic Stress Disorder." A letter from M.'s pediatrician stated that M. had "always appeared well cared for" and that he "had no concerns about any mental or physical abuse" of M. by A.
The letter states that he has been meeting with A. for psychotherapy since December 2008. However, the letter is dated March 2008.
At the jurisdiction hearing held in July 2008, Susan McGarry testified about responding as an emergency social worker to M.'s home in May 2008. McGarry said that A. had greeted her when she entered the home while M. was being interviewed by the police. She said that A. told her "that her daughter had been molested by the father since she was born, and that there was also physical abuse" and that she had called the police many times but that "nothing [was] being done." A. told McGarry that Mr. P. would "tie [M.] in a chair and make her watch sexual acts between the father and the girlfriend." McGarry interviewed M., who said that she "had fun with her father, that they ride bikes and they go places." However, M. then gave the "very violent sexualized account" of the nightly beatings.
McGarry's curriculum vita was introduced into evidence. It includes information concerning her education, including a Masters Degree in social work, as well as her professional associations and training. She had qualified as an expert in risk assessment in juvenile court before Judge Leonard Edwards.
McGarry testified that she told A. that M. had not disclosed being sexually abused by Mr. P. She testified that A. became "frenetic. There was a lot of energy. She was trying to tell me ten things at once of what's happening, that he's coming, her daughter is in danger. She's becoming ill from this." A. also said that Mr. P. and his girlfriend were stalking her on the internet. As for the nightly beatings, McGarry said that A. told her, "I wake up every morning and I ask [M.] what did they do because I'm drugged, and I ask them when did they come."
McGarry testified that, after reviewing the previous CPS referrals, "I was worried because a year ago, the child had been able to delineate to people the difference between imagination and reality, and was able when talking to a counselor or the mediator at court, could say no, there is no monster woman, and now she was not able to do that." McGarry believed that M. was at a high risk of emotional abuse by A. She acknowledged that she was not "clinically qualified to make any psychological diagnosis."
Maria Klein testified that A. brought M. to her for counseling in September 2005. A. told Klein that "somebody was pursuing M[.] or that there was a monster woman in her life and that she wanted me to find out what was going on." A. told Klein that a monster woman breaks into their home at night, brings buckets of mosquitoes, drugs them, and eats all of their food. The woman came to M.'s school and beat her up in the bathroom. The woman had infiltrated A.'s email, sabotaged her work causing her to lose jobs, and turned her friends against her.
Klein had seen M. 17 times and A. was usually present during these sessions. Klein said that at the beginning of their sessions, M. seemed like a "healthy, normal little girl." At one point, Klein asked M. how she knew all these things about the monster woman and M. told her "[b]ecause my mother tells me." Klein testified that, after about two and a half years, "I could see M. in conflict when she was with me, and I had a sense that she knew what was real and what was not real, but that her loyalty to her mother was such that she did not want to betray her mother by saying something that was contrary to what her mother was saying. So I saw her in conflict, and I had concern that this conflict could shift from her having a clear sense of reality to her having fuzzy sense of reality." Klein acknowledged that she was not qualified to diagnose mental illness through formal testing but that she could "put a diagnosis down for an insurance form." Klein said that she had "begged" A. to seek psychiatric help for what Klein perceived as A.'s paranoia. A. was "very afraid to get help or to go get a psychiatric evaluation because she was afraid that the acts of doing that would mean that she was admitting that she was crazy and that she would then lose M[.]"
Klein testified that she had not seen M. enough to say that she "was suffering as a result of her mother's mental health problems," she could say that "the last two times [she] saw [M.], [Klein] had a real sense of apprehension in her, tension that [Klein] hadn't noticed before." Although Klein was told by M.'s pediatrician and daycare provider that M. was well cared for by A., in February 2007 Klein referred the matter to CPS. She did so because she was concerned that M.'s emotional stability "would be greatly affected by this continued exposure such that the child is repeating information which... has no basis in fact and insisting to third parties" that it is true.
Sallie Bearden testified as an expert on "the assessment of risk to children referred to the dependency system." She acknowledged that she was not qualified to make a diagnosis with regards to mental health, but said that she was of the opinion that A. had "delusional beliefs." Bearden found "quite startling" the contrast between the reports of M. sobbing hysterically saying "please don't send me to daddy's" and the reality of their visits during which they had "a very easy camaraderie that's very comfortable." After investigating the past referrals concerning M., Bearden believed that M. was "very definitely" at risk of harm if returned to her mother because "she will have to embody fully her mother's delusions that the father and the girlfriend are sneaking into the house." She observed, "It's hard for us to know now if M[.] knows the difference between the truth and a lie because in her mother's world, the truth is the delusion. So M[.] has no compass as to what real truth and reality is because she gets chastised in her mother's home if she doesn't tell the delusion." She said that M. was "certainly undergoing severe emotional distress" in having to present her mother's stories.
Kathryn Crave-Starr testified that she was a friend of A.'s who met her when A. began to tutor her in Turkish. After M. was born, A. mentioned that she was concerned that Mr. P. had molested M. while changing her diaper. When M. was about four years old, A. told Starr about the monster woman. Sometime later, Starr questioned M. about other incidents and M. told her that her father tied her to a chair and made her watch him have sex with his girlfriend and that the father and his girlfriend come into her house at night. Starr did not believe that A. was delusional. Rather, she believed that M. was the source of these stories.
A. testified that her relationship with Mr. P. involved domestic violence. The first incident occurred when she was six months pregnant with M. Mr. P. was singing a song and A. asked him to stop and accused him of having an affair. He continued to sing and they had a verbal dispute during which she "used some words that [made] him angry." He pushed her into the wall. She described other instances of domestic violence and said that Mr. P. always came home drunk.
A. testified that after M. was born, Mr. P. made inappropriate comments about M.'s sexual parts and took too long to change her diaper. She also said that one night M. woke up and A. saw that her bed covers were off. A. asked M. what had happened to her covers and M. pointed to her private parts and said that Mr. P. had touched her.
A. testified that when M. began to tell the stories about Mr. P. breaking into their home she thought she might be making this up. However, she began to notice small changes around their home that led her to believe it was the truth. She would wake up with an aching body which she attributed to the nightly drugging and beatings. She also believed she had been raped in the night. A. testified that when M. told her that she was being beaten in the school bathroom by the monster woman, A. discussed this with school officials who told her that it was not happening. A. hired a private investigator to look into this but testified that she never received a report from him. She acknowledged that she told the police about this and that they had contacted the investigator who told them that "he had communicated his conclusion that there was no basis for a stalking."
A. acknowledged that she had been diagnosed with posttraumatic stress disorder but testified that she believed that she had no mental illness "whatsoever." She did believe that M. was at substantial risk of emotional harm. She testified, "I really most likely believe that she is suffering emotionally but not because of I have caused, and it's not my cause. That's the events that she has been through. I really do believe that M[.] has emotional damage. Our daughter has it. But it's not me that I have done nothing to do that, to cause that emotional damage to our daughter." She felt M. was "tortured and tormented in many way[s]" and would need a "lifetime" of therapy.
Counsel for the Department argued that A. may very well sincerely believe that she and M. have been stalked and physically and emotionally abused, but that, because there was no evidence to support this, there was evidence of emotional abuse of M. because M. had "crossed the boundaries of reality and stayed in the realm of imagined violence." Counsel for M. asked the court to take jurisdiction because M. was "an emotionally fragile child, and she continues to suffer from the mother's delusions today." Counsel for Mr. P. joined in the request that the court take jurisdiction and said that Mr. P. would cooperate with any reunification or maintenance plan. Counsel for A. argued that M. was a pleasant, bright, well-cared-for child and that "[d]espite numerous police reports and CPS referrals, there is no affirmative evidence that this mother is filling her child's head with these stories." Counsel asserted that there was "no evidence that this child is depressed or suffering anxiety or withdrawal."
The juvenile court said, "This case is a situation where the mother got on the stand and to the great surprise of the Court decided that this was all M[.]'s fault. That M[.] dreamed up all these rather bizarre – that's the only word I can use for it -- bizarre situations, and puts it on M[.]." The court noted that "the delusions of the mother are now becoming the reality of the child.... And I don't care if it's posttraumatic stress disorder or if it's paranoia or if it's anything else under the DSM. It doesn't matter for this Court to be concerned for the safety of the child." The court said that whatever mental health issues precipitated the delusions, "it is extremely harmful to M[.]." He said that M. was "at grave risk." The court sustained the petition under Welfare and Institutions Code section 300, subdivisions (b) and (c) and ordered psychological evaluations for A. and M.
The report prepared for the disposition hearing stated that A. had been assessed by court-appointed psychologist Dr. Sheri Terao who diagnosed her as suffering from "schizophrenia – paranoid type." Terao also assessed M. and found her to be suffering from generalized anxiety disorder. She found that M. was able to distinguish between fantasy and reality except when discussing the monster woman. M. cried profusely when describing "how torn she felt when having to choose between her mother's delusional beliefs and her father's reports that he did not have a girlfriend and had never tried to hurt her." The report noted that Mr. P. had been using "alcohol and methamphetamine to cover over the symptoms of his significant clinical depression."
The juvenile court held a contested disposition hearing on October 29, 2008. Bearden testified to A.'s many good qualities but said that, given A.'s rejection of Terao's diagnosis, the only way to protect M. from A.'s delusions was to remove her from the home. M.'s counsel stated that if M. testified she would ask to be returned to her mother or, if that was not possible, to live with her father. The juvenile court ordered that M. continue in her foster home placement and that both parents receive reunification services.
In appellant's reply brief, she asks this court to strike portions of respondent's brief as "statements not supported by the record." This includes respondent's introduction, "M. became a compliant Scheherazade for A[.] and, in the process, jeopardized her own emotional health." We understand this statement, as well as the others complained of by appellant, to be argument only and not intended as diagnostic statements. Nor do we find these statements "unduly inflammatory and prejudicial." We decline appellant's invitation to strike these portions of respondent's brief.
Sufficiency of the Evidence
Appellant contends, "Substantial evidence does not support the jurisdictional findings that M[.] was at substantial risk of serious physical harm or illness due to the mother's conduct." Appellant contends, "Substantial evidence does not support the jurisdictional findings that M[.] came within the provisions of section 300, subdivision (c)."
Our standard of review is well-settled: "In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
The Department's petition and the juvenile court's jurisdictional order were based upon Welfare and Institutions Code section 300, subdivisions (b) and (c). We focus first upon subdivision (c), which states that a child may be adjudged a dependent of the juvenile court if the child "is suffering serious emotional damage, or is at a substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.... " Thus, subdivision (c) authorizes intervention by the juvenile court in two situations: "(1) when parental action or inaction causes the emotional harm, i.e., when parental fault can be shown; and (2) when the child is suffering serious emotional damage due to no parental fault or neglect, but the parent or parents are unable themselves to provide adequate mental health treatment." (In re Alexander K. (1993) 14 Cal.App.4th 549, 557; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
Appellant complains that "at the time of the jurisdictional finding, there was no psychological evaluation of M[.]." Appellant observes that Klein "was not qualified as an expert witness... was not a psychiatrist and was not qualified or licensed to make a diagnosis of mental illness or to do formal testing." Citing Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051 , and In re Shelley J., supra, appellant argues, "In order to establish the serious emotional harm element under subdivision (c), evidence such as an evaluation or testimony by a psychologist or therapist is needed to justify jurisdiction."
In Nahid H., an Iranian mother sent her Iranian-born young daughters to America to protect their safety. She was unable to join them as soon as she planned, but when she could not obtain a visa to meet her children, she arranged for an Iranian family to care for them. The mother maintained contact with her daughters for four years through letters, some telephone calls, and reports from an Iranian acquaintance who visited the girls occasionally. In some of her letters, the mother wrote that she wanted her eldest daughter to join the Mujahedin, a group of anti-Khomeini Iranians, and sent a book describing that organization. Although the daughter wanted to live with her mother, she became very upset by this.
The children's mother demanded their return when they were placed with a state agency that refused to release them to her solely because of her plans for her daughter. Still, the mother cooperated with the agency. Eventually, she came to America for her children but was not allowed to visit them immediately or to take them into her care. Those who had cared for the children argued that the children should not be returned to their mother because their lives were in danger because of the mother's political participation in the Mujahedin. The trial court set the permanency planning hearing for the daughters even though no reunification plan was implemented because the children did not want to return to their mother's care. The mother petitioned for an extraordinary writ to compel the trial court to vacate its order setting the permanency planning hearing.
The appellate court reviewed evidence that the state had offered to show that it should retain custody of the children. The court said that political differences between parent and child could not support the dependency jurisdiction of a juvenile court, absent a substantial risk of palpable harm to the child. The appellate court described the record before it as providing "little support" for the position that if the children were returned to the mother's care they would suffer serious emotional damage and characterizing the record as "remarkable for the absence of psychological evaluations or structured therapy involving either the mother or the minors to ascertain and ameliorate the causes of the estrangement between them." (Nahid H., supra, 53 Cal.App.4th at p. 1070.) The court did not dismiss the dependency, but ordered the juvenile court to vacate the section 366.26 hearing and order the development of a reunification plan.
In Shelley J., the minor ran away from home, hid from the police, and stole a wallet from her mother. An emergency response social worker found the home to be a health risk, a safety risk, and a fire hazard due to raw garbage, clutter, and unsanitary conditions. A Welfare and institutions Code section 300 petition was filed. The parents submitted the jurisdiction issue and the juvenile court adjudged the minor a dependent child. On appeal, the mother challenged the sufficiency of the evidence. This court held that the psychological evaluations of the parents, which explained that the minor's "acting out" behavior was caused by the deplorable home conditions, provided sufficient evidentiary support for the juvenile court to take jurisdiction under subdivision (c). (Shelley J., supra, 368 Cal.App.4th at 329.)
Neither Nahid nor Shelley persuade us that either professional psychological assessments or expert testimony are statutory prerequisites to the assumption of jurisdiction pursuant to section 300, subdivision (c). The record supports the juvenile court's determination that M. was at a substantial risk of suffering serious emotional damage as evidenced by severe anxiety. McGarry's report noted that in the past, M. was able to say that the monster woman did not exist but now shared her mother's delusions. Her report included the information, "The child's prior two therapists both expressed concern that the child is exposed to the mother's delusional thinking." Sallie Bearden testified as an expert on "the assessment of risk to children referred to the dependency system." She testified that M. was "very definitely" at risk of harm if returned to her mother because "she will have to embody fully her mother's delusions that the father and the girlfriend are sneaking into the house." She said that M. was "certainly undergoing severe emotional distress" in having to present her mother's stories.
A. herself agreed that M. was at substantial risk of emotional harm, testifying that she felt M. was "tortured and tormented in many way[s]" and would need a "lifetime" of therapy. A.'s refusal to accept that she might have any responsibility for M.'s condition shows that M. would be at risk of serious emotional damage in A.'s custody.
Since there is substantial evidence to support the juvenile court's determination that the minor came within the provisions of subdivision (c), we need not address mother's claim that there was insufficient evidence to find jurisdiction under subdivision (b). Section 300 contemplates that jurisdiction may be based on any single subdivision. (In re Shelley J., supra, 68 Cal.App.4th at p. 330.)
Due Process
Appellant contends, "Appellant's right to due process was violated by the court's refusal to allow M[.] to testify."
Background
At the beginning of the jurisdictional hearing, the juvenile court noted that "the mother would like to have M[.] present throughout the course of these proceedings, and... mother's counsel has subpoenaed M[.] to testify during the course of these proceedings." Counsel for A. argued that M. was a party to the proceedings and had a right to appear under Welfare and Institutions Code section 317.5, subdivision (b) and California Rules of Court, rule 5.534. Counsel for A. said that A. wanted M. present "for her to be a part of this and to see what is going on in these particular proceedings, not to put any blame on her, to not make her feel all of this is her fault, but just that she be here to understand what's going on."
Sharon Burgan testified as an expert "the emotional state of mind and needs of children" including "the effect on the child of appearing in a court trial proceeding" and "the effect on a child testifying as part of that proceeding." She was a social work supervisor with the Department and had been a licensed clinical social worker since 1979. She had read the case file and interviewed M. She said that if M. were present during the hearing, she would perceive herself as "the problem" and this would "impact her own psychic development in an extremely negative way."
Burgan testified that even if M. were to testify in the judge's chambers it would still have a negative impact because "whatever decision comes down, she's going to think that it's because of what she said." After Burgan testified, A. withdrew her request that M. be present during the proceedings. However, she continued to request that M. testify. Counsel for M. opposed the request and argued to the court that there were "many, many statements by our client already in the court record" and that Burgan had "testified that our client's participation here regarding these issues would be very destructive to her emotionally and would cause lifelong emotional harm that would require years of therapy."
The court said that although he had had children younger than M. testify on occasion he had "never had an expert whose testimony is uncontroverted that this will do extreme detrimental harm to this child if she has to come in to these proceedings. And so it's through that evidence that was presented to the Court that I find that to bring this child in, even for testimony, even using the means we have to make it less adversarial... that this child is going to be scarred if I require her to testify in these proceedings." The court noted that "[t]here is a lot of information in the reports attributable to M[.] that I think makes it clear what she said to some people and that she said different things to other people, and I don't feel that that would shed any light on the contradictions that exist in this case."
Later in the proceedings the court clarified that its decision was based both on Burgan's testimony and the reports prepared for the jurisdictional hearing.
Discussion
Appellant contends, "Appellant's right to due process was violated by the court's refusal to allow M[.] to testify."
Welfare and Institutions Code section 341 provides: "Upon request of the social worker, district attorney, the child, or the child's parent, guardian, or custodian, or on the court's own motion, the court or the clerk of the court, or an attorney, pursuant to Section 1985 of the Code of Civil Procedure, shall issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing regarding a child who is alleged or determined by the court to be a person described by Section 300." California Rules of Court, rule 5.534 (k)(1)(C) confirms appellant's "right to use the process of the court to bring in witnesses." Welfare and Institutions Code section 350 provides for a child's testimony to be taken in chambers under certain circumstances.
Welfare and Institutions Code section 350, subdivision (b) provides: "The testimony of a minor may be taken in chambers and outside the presence of the minor's parent or parents, if the minor's parent or parents are represented by counsel, the counsel is present and any of the following circumstances exist: [¶] (1) The court determines that testimony in chambers is necessary to ensure truthful testimony. [¶] (2) The minor is likely to be intimidated by a formal courtroom setting. [¶] (3) The minor is afraid to testify in front of his or her parent or parents. [¶] After testimony in chambers, the parent or parents of the minor may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents. [¶] The testimony of a minor also may be taken in chambers and outside the presence of the guardian or guardians of a minor under the circumstances specified in this subdivision."
Appellant relies on In re Amy M. (1991) 232 Cal.App.3d 849. In Amy M., this court held that Welfare and Institutions Code section 350 gives a juvenile court no authority to refuse to allow a child to be called as a witness under section 341. In Amy M., the juvenile court held a dispositional hearing concerning a girl who had been molested by her father, and her younger brother, who was considered to be at risk for abuse as well. The parents argued that their due process rights had been violated when the juvenile court precluded their eight-year-old son from testifying. The child's medical examiner testified that the child was under significant psychological stress and would suffer additional emotional harm if he testified. (Id. at p. 864.) The child's counsel did not intend to call the boy to testify. The juvenile court weighed the respective concerns and ruled that it did not make sense for the child to be in court.
This court reversed, concluding that the juvenile court's refusal to permit appellant to call the eight-year-old as a witness violated due process. This court found that, "Neither was there in this case any substitute for [the child's] testimony which might have satisfied due process.... Neither was there any report containing [the child's] statements which could have substituted for his testimony." (In re Amy M., supra, 232 Cal.App.3d at p. 865.) This court also observed that had the therapist testified "that [the child] would not be able to testify without substantial trauma, the juvenile court could conceivably have found that [the child] was an unavailable witness." (Id. at p. 866.) Furthermore, the minor's parents had not been granted access to the child before the hearing. Accordingly, the parents in Amy M. had no means of presenting the child's statements or opinions other than through his live testimony. (Id. at p. 868.) This court reversed the jurisdictional order because the court could not conclude that the failure to permit the child witness to testify was harmless beyond a reasonable doubt.
Amy M. was followed by In re Jennifer J. (1992) 8 Cal.App.4th 1080. Jennifer J. discussed Amy M. and examined the question of whether it is within the juvenile court's discretion to exclude the testimony of a child in order to avoid psychological harm to the child. The Jennifer J. court held that a juvenile court may refuse to require the attendance and testimony of a minor in a dependency matter. "[I]t is within the juvenile court's discretion to exclude the testimony of a child in order to avoid psychological harm to the child, even though that testimony is relevant, the child is competent to testify, and the child is both practically and legally 'available' to testify." (Id. at p. 1088.) In Jennifer J., the court said that 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, we hold the juvenile court judge has the power to exclude such testimony." (Id. at p. 1089.) "This power derives... 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 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., fn. omitted.)
In this case, there was substantial evidence that M. was likely to suffer harm if she were forced to testify. Burgan, testifying as an expert as to "the emotional state of mind and needs of children," said that forcing M. to testify, even in chambers, would "impact [M.'s] own psychic development in an extremely negative way." Counsel for M. strongly objected to her being called as a witness by A.
M. was not unavailable as a witness under Evidence Code section 240. Section 240 permits the court to find a witness unavailable to testify if the witness would suffer "substantial trauma" from testifying. However, the trauma must be "resulting from an alleged crime." (Evid. Code, § 240, subd. (c).)
Appellant argues that any error in refusing to have M. testify could not be deemed harmless because "the substance of M[.]'s testimony, whether she was credible, and the effect of the allegations on [her] were at the heart of the case. Although there were previous reports of her statements, she had often retracted or backpedaled on them and she was not interviewed by the social worker regarding them, so there was no recent account of her statements.... Had M[.] been given an opportunity to testify, the court could have seen for itself how M[.] related the events, how they effected M[.], and the court could have then determined whether M[.] was placed at risk."
Ironically, giving M. an "opportunity" to relate "the events" would have forced her into the position that was precisely the source of her anxiety. Conceivably, M. could have testified that she in fact believed that her father and his girlfriend were entering her home nightly, and had for years, to drug, beat, and rape A. She could have testified that she herself did not believe this to be true but was pressured by her mother to substantiate this delusion. This is essentially what had been happening to M. all her life, as A. took her to doctors, therapists, and the police to give her account of these bizarre events. This is essentially what was causing the harm to M., being compelled to choose between her love and loyalty to her mother and her weakening grasp of reality. To subject her to this risk of harm again would not have affected the court's determination concerning the effect this was having on M.
Balancing the potential harm to M. against the limited probative value of her testimony, the court properly exercised its discretion by precluding appellant from calling her as a witness. For the same reason, even if we were to consider this a violation of due process, we would find it to be harmless beyond a reasonable doubt. Counsel for A. argued that A. "asserts she does not have any mental illness and that the original source of a reported abuse has always been her daughter.... [¶] Despite numerous police reports and CPS referrals, there is no affirmative evidence that this mother is filling her child's head with these stories." This argument overlooks the fact that A. began asserting that Mr. P. was sexually abusing M. before the child was even one year old. The evidence that A. was the source of these horrific stories was overwhelming. The record contained numerous accounts of M.'s interviews by professionals on these topics. Even the juvenile court noted that "[t]here is a lot of information in the reports attributable to M[.]" and that forcing M. to testify would not "shed any light on the contradictions that exist in this case." As for the impact of this situation on M., even A. believed that her daughter was at great risk of emotional harm. Thus, any error in failing to permit A. to call M. as a witness would be harmless beyond a reasonable doubt.
Disposition
The orders of the juvenile court are affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.