Opinion
E067325
07-27-2017
In re D.K. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. H.A., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J265318, J265319) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, H.A., was the legal guardian of half brothers D.K. and L.B., who were ages eight and 14, when the dependency proceedings began in April 2016. H.A.'s estranged wife, N.A., is the children's maternal grandmother and was their legal co-guardian. H.A. is not a blood relative of the children. For our purposes, the primary allegations of the operative petition stated that H.A. had sexually abused eight-year-old L.B. Other, less pertinent allegations are related to maternal grandmother and W.M. (mother).
H.A. appeals from the juvenile court's jurisdictional and dispositional orders finding the allegations of the petition to be true, removing the children from his physical custody, and terminating his guardianship over them. He contends substantial evidence did not support these orders. But mainly, he challenges the court's order excluding evidence from L.B.'s therapist. At the first jurisdiction/disposition hearing, the therapist testified that L.B. had recanted his sexual abuse allegations. The court initially admitted this testimony but then had a change of heart and determined the psychotherapist-patient privilege barred the evidence. It declared a mistrial on these grounds. The court then denied H.A's motion to admit the therapist's testimony at the second jurisdiction/disposition hearing.
H.A. contends either L.B. waived the psychotherapist-patient privilege or exceptions to the privilege apply. We conclude the court did not err in applying the psychotherapist-patient privilege and affirm the challenged orders.
II. FACTS AND PROCEDURE
A. Background and Prior Referrals
H.A. and maternal grandmother sought guardianship over the children in probate court when mother went to prison in 2010. At the time, H.A. and maternal grandmother were married and living together.
Although they have been married for approximately 15 years, H.A. and maternal grandmother separated in 2014. L.B. was spending weekdays with H.A. and weekends at maternal grandmother's home, where mother also lived since her release from prison. The location of L.B.'s alleged father is unknown.
L.B. has attention deficit hyperactivity disorder and autism. He has also suffered from encopresis since a young age. H.A. received social security benefits for L.B. Maternal grandmother protested that she did not have enough money to care for L.B. and had to ask H.A.—who was very controlling—whenever L.B. needed anything.
The family had two prior referrals that plaintiff and respondent, San Bernardino County Children and Family Services (CFS), had determined were unfounded. In December 2014, three months after H.A. petitioned the probate court to terminate maternal grandmother's guardianship, a referral alleged general neglect by maternal grandmother and sexual abuse of L.B. by H.A. H.A. reported maternal grandmother had been unable to care for the children because of her Vicodin use, but she had stopped using when he sought full custody of the children in family court. Maternal grandmother alleged that H.A. had exposed his penis to L.B. H.A. denied any sexual abuse and asserted L.B. had walked in on him in the shower. L.B. was difficult to interview, but denied any inappropriate touching. CFS determined the allegations against both guardians lacked supporting evidence.
In May 2015, right around the time maternal grandmother unsuccessfully sought a domestic violence restraining order against H.A., a second referral alleged H.A. had sexually abused L.B. A forensic interviewer with the Children's Assessment Center spoke with L.B. in connection with this referral. She noted that he had a speech impediment, rendering him difficult to understand. He also appeared to be developmentally delayed and had difficulty listening and focusing. L.B. reported that H.A. made L.B. "'eat his pee pee and growed,'" and L.B. said he could "show a video on it." When the interviewer asked if that really happened, L.B. replied "he didn't even know." Because he could not provide any more details about the alleged incident, the forensic interviewer felt she could not confirm sexual abuse.
The San Bernardino County Sheriff's Department also filed a report in connection with this referral. L.B. told mother that H.A. made him touch H.A.'s penis and put it in his mouth, and H.A. had also touched L.B.'s penis. But L.B. was unresponsive to the deputy's questioning. The investigating social worker determined the allegations were unfounded, again based on insufficient supporting evidence. B. Initial Detention
In April 2016, CFS received the present referral alleging H.A. had sexually abused L.B. When CFS arrived, deputies with the sheriff's department were present and had already interviewed L.B. L.B. told the deputies about "bad stuff" that happens only at night. L.B. said "Papa" (his nickname for H.A.) "let him eat his privates and he did not like it." L.B. identified his private part by pointing to his penis. He also told them, "Papa let me eat his 'one dick,'" which he described as growing big and going back to normal. This occurred in the kitchen at H.A.'s house.
A forensic interviewer with the Children's Assessment Center interviewed L.B. this time as well. According to the interviewer, he had an unusual presentation, style of speaking, and word choice due to his autism diagnosis. L.B. reported that H.A. "had him do 'propriate stuff'" that he did not like. L.B. described "'eat[ing] his penis,'" and after L.B. ate it, "'it went back to normal.'" L.B. also said "'[t]he pee'" made it taste "'bad, disgusting, horrible,'" and the pee landed on H.A.'s penis. L.B. stated he "ate it and [H.A.] was like this," and then L.B. made his body slack and relaxed while audibly exhaling. H.A. threatened to spank L.B. unless he ate his penis. L.B. further explained that H.A. "'[t]ook a chunk and it growed back to the regular thing. He ripped it off and it was back to normal.'" H.A. was naked. H.A. also gave him a tape of H.A. "'having sex with the camera'" and what looked like "'a real girl.'" L.B. appeared to describe multiple events, indicating these events occurred in H.A.'s bedroom, in the kitchen, and in the bathroom.
H.A. denied the allegations. He explained he had prostate issues that prevented him from maintaining an erection. He believed maternal grandmother was coaching L.B. to make the allegations because they had recently been to family court over custody issues. H.A. and maternal grandmother had been in a custody dispute for two years. He believed maternal grandmother and mother were using marijuana, and as the owner of their home, he was evicting them.
Since CFS had been investigating, L.B. was staying with maternal grandmother. She had been keeping L.B. home from school because he had been unable to sleep. She was also concerned H.A. would try to pick him up from school and described H.A. as aggressive with her and mother. Maternal grandmother and mother indicated they wanted to seek counseling for L.B. CFS gave them a referral.
The half brother, D.K., denied anyone touching him inappropriately. He did not spend much time with H.A. He divided his time between maternal grandmother, mother, and his father, J.K.
The original petition alleged H.A. had inserted his penis into L.B.'s mouth and ejaculated (Welf. & Inst. Code, § 300, subd. (d)), and this sexual abuse had been ongoing since at least April 2015. CFS filed a separate petition alleging D.K. was at risk of harm based on H.A.'s sexual abuse of L.B. (§ 300, subd. (j).)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In May 2016, the juvenile court found CFS had made the required prima facie showing and detained the children from H.A. The court ordered them to remain in maternal grandmother's custody with supervised weekly visits for H.A., but only if the children wished to visit. It also referred L.B. for immediate counseling. C. Jurisdiction/Disposition Report and Amended Petitions
When interviewed for the jurisdiction/disposition report, maternal grandmother reported that, three months earlier, L.B. had said H.A.'s "'penis smelled'" and "'got hard.'" She did not report these statements because CFS determined the 2015 allegations against H.A. were unfounded, and she now felt shame and regret over her failure to report. The prior year, L.B. had also drawn male genitalia with crayons, and she showed these drawings to the social worker.
Maternal grandmother and mother had heard from other adults in the community that H.A. had molested them as children, but these individuals feared coming forward now, based on H.A.'s aggressive behavior in the past. Mother wanted maternal grandmother to become L.B.'s guardian when mother went to prison, but she never wanted H.A. to be a co-guardian, and she did not know how this happened. Maternal grandmother asked H.A. to return L.B. to mother when mother was released from prison, but he refused. She did not understand why H.A. insisted on remaining L.B.'s guardian, given that he was not L.B.'s blood relative.
D.K.'s father, J.K., knew L.B. well. He was troubled by the allegations because he had never known L.B. to lie or make similar accusations against anyone else. He thought H.A. had been using L.B. like a pawn ever since H.A. and maternal grandmother separated.
The forensic interviewer who spoke with L.B. for the detention report described him as the perfect victim; his attention span was limited and his narratives were hard to follow. The specific types of abuse he described were concerning.
H.A. continued to deny he sexually abused L.B. and was not receptive to services. He provided a letter from his doctor stating that H.A. had complained of erectile dysfunction for the past several years, and his diagnosed medical conditions and medications may have contributed to the dysfunction. He wanted sole custody of L.B. H.A. openly discussed the allegations against him with anyone, and he would tell everyone they were fabricated. H.A. has two sons but did not share a close relationship with them. He also had six or seven of his own grandchildren and did not spend time with them.
L.B. had visited twice with H.A. since the detention hearing. He was appropriate during the visits and L.B. seemed to enjoy his company "as a friendly visitor," but mother reported L.B. could not sleep the night after the first visit.
The social worker believed the allegations against H.A. were credible. While there was an ongoing custody dispute over L.B., she thought it unlikely anyone could coach L.B. to be so specific with his statements and to act out H.A.'s release.
The jurisdiction/disposition report documented issues apart from the sexual abuse allegations. Maternal grandmother said H.A. had emotionally abused her, though he had never hit her. H.A. obtained a temporary restraining order against her in April 2016, but both of them continued to contact the other. They had exchanged vitriolic text messages and were arguing over financial as well as custody issues. H.A. had accused her of using L.B.'s cash aid for gambling in the past. The sheriff's department had several incident reports documenting ongoing conflicts between them. They had not dissolved the marriage, despite living apart for two years.
Maternal grandmother had a number of medical problems for which she was taking pain medication. Mother knew maternal grandmother had "overused" pain medication in the past. H.A. alleged maternal grandmother used too much of the drug Norco.
CFS recommended that the court terminate the guardianship over the children and return the children to their parents' custody because the initial reasons for the guardianship no longer applied. Mother had been released from prison and had a bond with L.B., and she appeared to have L.B.'s best interests in mind. Her parole officer reported she was doing well on parole. D.K.'s father, who had resolved his own criminal matters, was already caring for D.K. most of the time. CFS recommended offering mother family maintenance services so it and the court could track her ability to be independent and care for L.B. With respect to D.K., it recommended that he live with J.K. and that the court close the case with family law orders.
In late May 2016, CFS filed first amended petitions adding allegations that H.A. and maternal grandmother put the children at risk by engaging in domestic violence, maternal grandmother put them at risk through her substance abuse, and mother failed to protect them by not acting more swiftly to regain custody. (§ 300, subd. (b).)
New circumstances in June 2016 resulted in CFS filing second amended petitions. Maternal grandmother had an active warrant for her failure to appear in court in connection with a May 2016 arrest for possession of drug paraphernalia. (Health & Saf. Code, § 11364, subd. (a).) CFS also learned she was on probation for a 2015 conviction for intimidating business operators (Pen. Code, § 602.1), and her probation conditions required her to stay away from the casino connected to that conviction. Additionally, when CFS called maternal grandmother to schedule H.A.'s visitation, her speech was slow and difficult to understand. Though they scheduled the visit for the following day, maternal grandmother apparently forgot about it.
CFS also learned L.B. was staying with mother at her boyfriend's home. Mother's boyfriend was a felon with an extensive criminal history who was on probation, and he had a dependency case several years ago that resulted in him failing to reunite with his child and the child being adopted. L.B. reported that mother's boyfriend hurt her stomach and head when they were fighting, and mother confirmed they had fought. She also appeared to be under the influence when the social worker saw her.
CFS filed second amended petitions alleging mother put the children at risk by engaging in domestic violence and abusing substances. (§ 300, subd. (b).) CFS changed its recommendation that mother have custody of L.B. and instead recommended foster care.
In June 2016, the court detained L.B. from H.A., maternal grandmother, and mother and authorized CFS to find appropriate foster care placement. It detained D.K. from these parties as well and ordered him to remain in J.K.'s custody. The court set the matter for a contested jurisdiction/disposition hearing in August 2016. It also suspended visitation between L.B. and H.A. Mother's counsel represented to the court that L.B. told mother H.A.'s "arm grew" when L.B. sat on his lap during the second visit. D. July Addendum to the Jurisdiction/Disposition Report
CFS's report in July 2016 stated that L.B.'s therapist at his group home, Matthew Farnsworth, contacted the social worker with concerns about L.B.'s visits with mother and maternal grandmother. The therapist requested that CFS suspend or reduce the frequency of visits with them. During maternal grandmother's telephone visits, she was saying negative things. The therapist was just starting to make progress with L.B., but after visits with maternal grandmother, L.B. would regress into sadness. CFS and maternal grandmother agreed that she would voluntarily relinquish her guardianship over L.B. and CFS would dismiss the allegations against her, and she would no longer receive services from CFS.
Regarding mother, L.B. told his therapist that he saw mother and her boyfriend engaging in intercourse. He also said the boyfriend had raped mother, and they told him he could not live with them if he told anyone. Mother reported that L.B. walked in on them having intercourse when the lock on the door failed to latch. The therapist and CFS agreed the therapist would provide weekly family therapy for mother and L.B. Mother signed a waiver of rights and agreed to submit on the second amended petition on the basis of CFS's reports and other documents.
P.B. and D.B., L.B's paternal grandfather and his wife, had been visiting L.B. CFS was assessing them for placement. E. The First Jurisdiction/Disposition Hearing and the Declaration of a Mistrial
The first contested jurisdiction/disposition hearing took place in August 2016. Debra Douglas, one of the social workers in this matter, testified she had spoken to L.B.'s group home therapist on five or six occasions. The therapist never told her that L.B. had recanted the allegations of sexual abuse against H.A.
L.B.'s therapist also testified. He began working with L.B. in June 2016. They had a lengthy one-on-one session each week and an hour-long group session each week. They also met briefly every day for 15 to 20 minutes. The therapist described his rapport with L.B. and started to talk about things L.B. had said to him: "Every time I walk into the cottage, he usually gets up from his seat and says, 'Mr. Matt, Mr. Matt, can I be with you? Can we talk?' [¶] On weekends, Friday afternoons, when I leave for the weekend and I'm saying good-bye to the boys, [L.B.] typically says, 'I'm going'—" L.B.'s counsel then interrupted: "I have to object, your Honor. I believe this testimony is going to what [L.B.] has told him as a client/therapist relationship. And I do hold the privilege." The court overruled the objection on the ground that the therapist was not disclosing parts of therapy.
The therapist went on to testify that L.B. "recant[ed] or indicate[d] that [H.A.] did not sexually abuse him." L.B.'s counsel objected again on privilege grounds. H.A.'s counsel argued L.B. had waived the privilege because the social worker's report from July 2016 contained information from the therapist relating to mother's and maternal grandmother's visitation. L.B.'s counsel responded that he was asserting the privilege as to the July report, if that was the case. The court ruled that H.A. was asking for the therapist's conclusions or opinions, and while specific communications from L.B. may be privileged, conclusions and opinions were not. It thus overruled L.B.'s objection.
H.A.'s counsel elicited similar testimony shortly after the therapist opined H.A. had not sexually abused or molested L.B., based on L.B.'s "disclosures in therapy." L.B.'s counsel again objected on privilege grounds, and the court overruled the objection on the same grounds as before. The court recessed for the day.
The following day, the court indicated it had conferred off the record with counsel for all the parties, and it had reconsidered its privilege rulings from the day before. The court had learned the therapist had communicated directly with H.A. and his counsel when L.B.'s counsel was not present and had not waived the privilege. The court struck the entirety of the therapist's testimony as barred by L.B.'s assertion of privilege and declined to consider the testimony for any purpose. The court prohibited the therapist from communicating with L.B., with anyone at the group home concerning L.B., with any counsel in this case other than L.B.'s counsel, and with any family member of L.B. It ordered the therapist to turn over all his records regarding L.B. so that they could be destroyed (although on a later date, the court ruled the records would be retained in a sealed envelope and not destroyed). The court also relieved H.A.'s counsel and appointed new counsel for him. Finally, it granted L.B.'s motion for mistrial and declared a mistrial. The court scheduled a new contested hearing for October 2016.
The court did not believe CFS's July 2016 report regarding visitation issues waived the psychotherapist-patient privilege. The "general import" of the report was the therapist's request to suspend visits and the impact of the visits on L.B. The report did not contain any references to alleged sexual abuse. L.B.'s counsel agreed with the court's ruling and argued the privilege holder could disclose limited information to reasonably assist the court in evaluating whether further orders are necessary for the child's benefit. Counsel believed the disclosures in the July report were for that limited purpose, and he did not intend to waive the privilege in the future.
The day after these proceedings, CFS moved L.B. to the home of paternal grandfather and his wife. They had tried to have a relationship with L.B. prior to the CFS referral, but H.A. had limited their contact with L.B.
Several days later, the court granted L.B.'s request for a guardian ad litem to explore a possible civil action against the therapist or group home. F. H.A.'s Motion to Admit the Therapist's Testimony and Records
In advance of the second jurisdiction/disposition hearing, H.A. filed a motion to admit the records and testimony of L.B.'s prior therapist—the same therapist whose testimony resulted in the mistrial. H.A. argued L.B. and his counsel had waived the psychotherapist-patient privilege when, at the first hearing, counsel failed to object to the admission of CFS's July 2016 report containing information from the therapist; failed to object to H.A.'s witness list, which listed the therapist; and failed to object to Douglas's testimony that the therapist had never told her L.B. had recanted the sexual abuse allegations. H.A. also argued an exception to the privilege applied because the court had ordered L.B. to continue to receive therapy. (Evid. Code, § 1017.) He further argued the privilege did not apply because the evidence involved information reported under the Child Abuse and Neglect Reporting Act (CANRA). (Pen. Code, §§ 11164, 11171.2, subd. (b).) The court denied H.A.'s motion. G. The Second Jurisdiction/Disposition Hearing and the Court's Findings
Several witnesses testified at the second jurisdiction/disposition hearing, including social workers, L.B., and H.A. L.B.'s counsel qualified him as able to distinguish between the truth and a lie. L.B. liked living with paternal grandfather and his wife. He said he was not living with H.A. anymore because, for a long time, he had done "bad things" to L.B. Although L.B. was scared to say what "bad things" meant, he eventually explained that H.A. stuck his "dildo" or "dick" in L.B.'s mouth, and "it grew back." L.B. explained a dildo was a version of a "pee-pee" and the same as a "private part." H.A. made L.B. put his mouth on him. No one told L.B. to say that, and he did not tell anyone about it. H.A. "didn't mean to do anything wrong" and apologized to L.B. for what he did. He had also touched L.B.'s "private parts" "[b]ecause he's evil." L.B. never told anyone that H.A. was evil.
L.B. demonstrated discomfort with the courtroom setting when explaining the sexual abuse. He asked that everyone in the courtroom turn their backs to him and cover their ears while he discussed it. The attorneys covered their ears when they were not questioning him, and the court reporter read L.B.'s testimony back when he left the courtroom.
L.B. also had "good times" with H.A. L.B. liked living with H.A. sometimes and sometimes he did not. He did not like living with H.A. because of "[b]ad things." He said, "I don't like bad things, like bad dreams. No, that's not me anymore." L.B. had seen H.A. and maternal grandmother fight. They yelled a lot but never hit each other.
Karen Perry was the social worker who investigated the May 2015 referral. She concluded it was unfounded because there was nothing to substantiate L.B.'s initial disclosure. He said he "didn't even know" when asked about being touched. Also, maternal grandmother and mother asked him leading questions about sexual abuse or molestation, although it was normal for a parent to ask leading questions of a child when investigating possible sexual abuse. She also had difficulty with mother's credibility because she was not honest with Perry about her history of drug use. Perry was not involved in the investigation of the current allegations.
Douglas, the social worker investigating the instant case, talked to Perry's supervisor but not Perry. The supervisor told Douglas to review Perry's investigation, but to make this investigation her "own" and consider the new evidence available. Douglas concluded the allegations of this referral were substantiated based on the audio recording of the sheriff's deputies' interview with L.B., the most recent forensic interview of L.B., and the statements of maternal grandmother and mother. She knew there was an ongoing custody dispute between H.A. and maternal grandmother when these allegations arose, but she still believed the allegations of sexual abuse were true.
H.A. testified he and maternal grandmother were married almost 16 years, and he considered L.B. to be his grandson. L.B. first started living with him and maternal grandmother when L.B. was nine months old. The couple separated in 2014 because maternal grandmother was addicted to Vicodin and refused to enter a rehabilitation program. He did not want her around L.B. and D.K. asked her to leave the home. He also petitioned the probate court to terminate her guardianship over the children. He called the first referral in around this time, even though maternal grandmother was accusing him of acting inappropriately with L.B. The second referral in 2015 occurred around the time of another court hearing when maternal grandmother was trying to terminate H.A.'s guardianship. The third referral, the present one, occurred two days after a court hearing in their divorce case.
H.A. denied sexually abusing L.B. or any minor. He had been attending parenting and domestic violence classes and had been seeing a therapist. He admitted to committing verbal "acts of domestic violence" against maternal grandmother "[i]n protection of [L.B.]" He had a restraining order against maternal grandmother.
The court found true the allegations of domestic violence against H.A. and the allegations of domestic violence and substance abuse against mother. It amended the allegations of sexual abuse against H.A. and, as amended, also found true that H.A. had inserted his penis into L.B.'s mouth on at least one occasion. The court noted that H.A. believed maternal grandmother and mother were targeting him because of the family court case. But the court found L.B.'s "core allegation" about the sexual abuse to be consistent over time, and it found him to be truthful and accurate about what had happened. Part of what demonstrated this to the court was how L.B. "present[ed] himself as he testified." His asking everyone to turn around and cover their ears indicated that he understood the significance of what had happened.
The court dismissed the allegations against maternal grandmother based on her agreement with CFS to terminate her guardianship over the children. The court ruled it was in the best interests of L.B. and D.K. to terminate H.A.'s and maternal grandmother's guardianship over them. After terminating the guardianship, it ordered L.B. to remain placed with paternal grandfather. It ordered reunification services for mother but not for H.A. or maternal grandmother. Finally, it dismissed D.K.'s case with a family law order granting physical custody to his father.
III. DISCUSSION
H.A. argues the court abused its discretion in excluding evidence from L.B.'s therapist. He also asserts substantial evidence did not support the jurisdictional and dispositional findings or the order terminating his guardianship over both children. We reject each of these arguments. A. The Court Properly Denied H.A.'s Motion to Admit Evidence from the Therapist
H.A. is not challenging the jurisdictional findings based on mother's conduct and acknowledges that, regardless of how we decide this appeal, the juvenile court will have jurisdiction over L.B. and D.K. based on these findings. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491.) When any order of the appellate court will have no practical impact on the juvenile court's jurisdiction over the children, some appellate courts find the appeal to be moot or nonjusticiable and dismiss it. (E.g., id. at pp. 1491, 1495.) H.A. argues we should nonetheless consider the merits of his appeal, and we agree. "We generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction'. . . ." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) Here, the court's jurisdictional order finding H.A. to be an offending guardian underlay its dispositional order removing the children from his custody and terminating his guardianship over them, which H.A. also challenges. Thus, his jurisdictional argument is not moot.
We review the juvenile court's decision to admit or exclude evidence for abuse of discretion. (In re Cole C. (2009) 174 Cal.App.4th 900, 911.) As H.A. acknowledges, "the psychotherapist-patient privilege applies to the relationship between a dependent minor and his or her therapist." (Id.at p. 910; Evid. Code, § 1014.) Our high court "has broadly construed the psychotherapist-patient privilege in favor of the patient for public policy reasons." (Roe v. Superior Court (1991) 229 Cal.App.3d 832, 837.) Unless the holder of the privilege has waived it or a statutory exception applies, the privilege protects the confidentiality of the patient's communications with his or her psychotherapist and applies even if the privileged information is relevant to a disputed issue. (In re Cole C., supra, at p. 910; Simek v. Superior Court (1981) 117 Cal.App.3d 169, 174.) In dependency proceedings, "[e]ither the child or counsel for the child . . . may invoke the psychotherapist-client privilege." (Welf. & Inst. Code, § 317, subd. (f).) The child's counsel holds the privilege if the court finds the child to be of insufficient age and maturity to invoke the privilege himself or herself. (Ibid.)
H.A. does not dispute that L.B.'s counsel holds the privilege in this case and could invoke it on L.B.'s behalf. He contends the court erred in excluding the therapist's evidence and violated his due process rights for three reasons: (1) L.B.'s counsel waived the psychotherapist-patient privilege by failing to object when CFS included evidence from the therapist in its July 2016 report; (2) the privilege did not apply because the therapist was a mandated reporter under CANRA; and (3) the privilege did not apply because the court appointed the therapist to examine L.B. We disagree on all three counts.
1. No Waiver of the Psychotherapist-patient Privilege
The holder of the psychotherapist-patient privilege waives it with respect to a communication if, "without coercion, [he or she] has disclosed a significant part of the communication or has consented to disclosure made by anyone." (Evid. Code, § 912, subd. (a).) "Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege." (Ibid.) The waiver must be voluntary, knowing, and "'done with sufficient awareness of the relevant circumstances and likely consequences.'" (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092, italics omitted.) Courts presume communications made in confidence to a psychotherapist are privileged, and the opponent of the privilege bears the burden of proving waiver. (Evid. Code, § 917, subd. (a).)
Even when patients have waived the privilege by disclosing confidential communications, they do not lose their privacy interest in all confidential information communicated to the therapist. (San Diego Trolley, Inc. v. Superior Court, supra, 87 Cal.App.4th at p. 1092.) We construe any waiver narrowly and in favor of the patient, and limit it to matters in which it can reasonably be said the patient no longer retains a privacy interest. (Ibid.; In re M.L. (2012) 210 Cal.App.4th 1457, 1474.) Thus, a patient who discloses conversations with a therapist on one day "ought not be permitted to claim the privilege with respect to a conversation with the same" therapist regarding "the same subject matter" on the following day. (Jones v. Superior Court (1981) 119 Cal.App.3d 534, 547.) "Arguably, the same is true where the patient consults more than one [therapist] concerning the same subject matter" and discloses his or her conversation with one of them. (Ibid.) "But it would distort the statutory language beyond its apparent meaning to say that the waiver extends to all communications with any [therapist] at any time." (Ibid. [referring to the statute defining waiver, Evid. Code, § 912, subd. (a)].)
Moreover, no waiver occurs when privileged information is disclosed in confidence to a third party if such disclosure "is reasonably necessary for the accomplishment of the purpose for which the . . . psychotherapist . . . was consulted." (Evid. Code, § 912, subd. (d).) The theory is that, when the disclosure is necessary to accomplish the purpose of the privileged relationship, "the privilege holder has not evidenced any abandonment of secrecy." (Sen. Com. on Judiciary com., Evid. Code, § 912, subd. (d).)
"[I]n the juvenile dependency context, . . . therapy has a dual purpose—treatment of the child to ameliorate the effects of abuse or neglect and the disclosure of information from which reasoned recommendations and decisions regarding the child's welfare can be made." (In re Kristine W. (2001) 94 Cal.App.4th 521, 527.) Accordingly, the psychotherapist-patient privilege does not preclude the therapist "from giving circumscribed information to accomplish the information-gathering goal of therapy," from which the court may then determine what further services are necessary to protect the child. (Id. at p. 528.)
In this case, H.A. argues L.B. waived the privilege when the court admitted CFS's July 2016 report into evidence, and L.B.'s counsel failed to object or claim the privilege. The July 2016 report disclosed that L.B.'s therapist had concerns about L.B.'s visits with mother and maternal grandmother; maternal grandmother had said negative things during her visits that appeared to be impeding L.B.'s progress in therapy; L.B. told the therapist that he had seen mother and her boyfriend engaging in intercourse and that the boyfriend had raped mother; and L.B. disclosed that they told L.B. he could not live with them anymore if he told anyone what he saw. The therapist wanted to suspend or reduce the frequency of visits with maternal grandmother and mother.
The court did not abuse its discretion in finding no waiver of the psychotherapist-patient privilege here. The information in the report supported the therapist's request that the court limit visits with maternal grandmother and mother. The limited disclosure to CFS and the court enabled reasoned decisionmaking about further visitation orders that may have been necessary to protect L.B. The disclosure was "reasonably necessary" to accomplish the information-gathering purpose of therapy in the dependency context. (Evid. Code, § 912, subd. (d).) Consistent with this goal, at the mistrial, L.B.'s counsel made clear he did not intend to waive the privilege, and he was consenting to the disclosure of the details in the report for the limited purpose of evaluating what further orders were necessary for L.B.'s benefit. Counsel's consent to the limited disclosure for that purpose did not waive the privilege. (Evid. Code, § 912, subd. (d).) We cannot say that the court's ruling to this effect was arbitrary, capricious, or patently absurd. (In re S.A. (2010) 182 Cal.App.4th 1128, 1139.)
Even assuming counsel's consent to this disclosure constituted a waiver, the court was bound to narrowly construe any waiver in favor of L.B. The disclosure concerned L.B.'s visits with maternal grandmother and mother and their impact on him. This was not a waiver of the privilege with respect to all communications on all subject matters. The information sought "to be disclosed must fit strictly within the confines of the waiver." (Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052.) H.A. seeks disclosure on a different subject matter—the allegations of sexual abuse against him, which have nothing to do with L.B.'s relationship with maternal grandmother and mother.
2. CANRA Did Not Compel Disclosure
CANRA protects children from abuse and neglect. (Pen. Code, § 11164, subd. (b).) Among others, psychiatrists, psychologists, marriage and family therapists, and professional clinical counselors are mandated reporters under CANRA. (Pen. Code, § 11165.7, subd. (a)(21).) When these people know or reasonably suspect a child has been abused or neglected, including sexually abused, they must report the neglect or abuse to the appropriate law enforcement or county welfare agency. (Pen. Code, §§ 11166, subd. (a), 11165.6, 11165.9.)
The psychotherapist-patient privilege does not apply to information reported under CANRA. (Pen. Code, § 11171.2, subd. (b).) "By requiring psychotherapists to report known or suspected instances of child abuse that are revealed during therapy, the Legislature has required patients to yield their right to privacy to the state's compelling interest in protecting children from abuse." (Roe v. Superior Court, supra, 229 Cal.App.3d at p. 838.)
The court did not err in determining the CANRA exception to the psychotherapist-patient privilege was irrelevant here. CANRA seeks to protect children by mandating disclosure of suspected or known child abuse. But H.A. seeks disclosure of alleged nonabuse. He points to nothing in CANRA that imposes a duty to report when a therapist suspects a child has not been abused. Because CANRA does not mandate reports of nonabuse, the CANRA exception to the psychotherapist-patient privilege does not apply.
3. The Juvenile Court Did Not Appoint the Therapist
Like waiver, "[e]xceptions to the psychotherapist-patient privilege are narrow," and we construe them in favor of the patient. (In re M.L., supra, 210 Cal.App.4th at p. 1474.) Under Evidence Code section 1017, an exception to the psychotherapist-patient privilege arises when "the psychotherapist is appointed by order of a court to examine the patient." The court order does not create a sufficiently confidential relationship to warrant the privilege. (Cal. Law Revision Com. com., 29B pt. 3B West's Ann. Evid. Code (2009 ed.) foll. § 1017, p. 34.) The court most often appoints a psychotherapist to have him or her testify about his or her conclusions as to the patient's condition. (Ibid.) "It would be inappropriate to have the privilege apply in this situation." (Ibid.)
A juvenile court referral for counseling is not "the equivalent of a court-ordered examination of a patient by a psychotherapist within the meaning of Evidence Code section 1017, subdivision (a)." (In re Eduardo A. (1989) 209 Cal.App.3d 1038, 1041; accord, In re Edward D. (1976) 61 Cal.App.3d 10, 13, 15 [social services agency's referral of the mother to a psychologist to help the agency decide whether it would recommend return of the children was not the equivalent of a court order appointing the psychologist under Evid. Code, § 1017].) Juvenile courts do not make counseling referrals simply to have therapists provide evidence and testimony in the matter—they also refer children to counseling to treat and "ameliorate the effects of abuse or neglect." (In re Kristine W., supra, 94 Cal.App.4th at p. 527.) In this sense, counseling referrals give rise to the type of confidential, psychotherapist-patient relationship the privilege protects.
Accordingly, relationships that arise from referrals for counseling in dependency proceedings are generally protected by the psychotherapist-patient privilege, absent an express court order appointing the psychotherapist to examine the patient (or some other exception not raised here). As we have seen, the privilege allows for circumscribed disclosures that are reasonably necessary to protect the dependent child in the case. (In re Edward D., supra, 61 Cal.App.3d at p. 15.) But a juvenile court referral does not mean the privilege fails to apply altogether under Evidence Code section 1017. "This narrow view of the privilege exception is consistent with the general rule that the statutory psychotherapist-patient privilege is to be liberally construed in favor of the patient." (In re Eduardo A., supra, 209 Cal.App.3d at p. 1042.)
Here, the court did not appoint the therapist to examine L.B. At the detention hearing, the court referred L.B. for counseling. The therapist worked at L.B.'s group home, where he lived after the court detained him from maternal grandmother. The therapist started treating L.B. as part of the group home's services. The court's counseling referral did not trigger the exception to the privilege.
H.A. appears to acknowledge that the exception for court-appointed psychotherapists does not apply when the therapist treats the patient pursuant to a reunification plan referral. He argues the therapist here did not treat L.B. pursuant to any reunification plan referral because the treatment occurred before the disposition hearing. Therefore, he suggests, the referral was more akin to a court order of appointment, in that the court would receive information from the therapist to help it make its jurisdictional and dispositional findings. H.A. provides no persuasive basis for distinguishing between predisposition referrals and postdisposition referrals. The possibility always exists that the court might rely on information from a therapist in dependency proceedings, whether the counseling referral occurs before or after the court sets forth a reunification plan. Even after the court orders a reunification plan, the court might rely on the information at future hearings, such as review hearings (Welf. & Inst. Code, § 366.21) or permanency planning hearings (Welf. & Inst. Code, § 366.26). Either way, the juvenile court referral is not the equivalent of a court-ordered examination of a patient within the meaning of Evidence Code section 1017, subdivision (a).
4. The Court Did Not Violate H.A.'s Due Process Rights in Excluding the Therapist's Evidence
H.A. contends the court violated his due process rights by excluding admissible evidence from the therapist on the core issues of the case and consequently denied itself a "full picture of the facts of the case." H.A. did not raise this constitutional argument below. Assuming he has not forfeited this argument, the contention lacks merit. Generally, a court's application of state evidentiary rules—or even a violation of state evidentiary rules—does not rise to the level of constitutional error. (People v. Benavides (2005) 35 Cal.4th 69, 91; People v. Boyette (2002) 29 Cal.4th 381, 414.) H.A. has not convinced us we should depart from this general and well-settled principle.
5. Even Assuming the Court Erred, H.A. Fails to Demonstrate Prejudice
H.A. argues we should reverse the jurisdictional and dispositional orders and remand for the court to conduct a new hearing to consider the therapist's evidence. He simply presumes that, if the court erred, a new hearing is automatically necessary.
But courts do not presume prejudice from the type of error that H.A. claims. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Even when the court improperly excludes evidence, we will not reverse unless it is reasonably probable the appellant would have realized a more favorable result. (In re Celine R. (2003) 31 Cal.4th 45, 60; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1432.) The appellant bears the burden of demonstrating this prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) The appellant may not simply point out an error and rest there. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) He or she has the duty to develop a prejudice argument with reference to the law and the particular facts of the case. (Ibid.) Conclusory assertions are insufficient.
H.A. does not carry his burden here. He asserts several times that the excluded evidence was relevant to the core issue of the case. He does not explain, however, why it is reasonably probable he would have realized a more favorable result, given the other evidence in the case supporting his argument that he had not sexually abused L.B. We need not examine undeveloped arguments or make this argument for him. (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) Even if we had concluded the court erred in excluding the therapist's evidence, we would be justified in declining to reverse for his failure to show prejudice. B. Substantial Evidence Supported the Jurisdictional Finding Based on H.A.'s Sexual Abuse of L.B.
H.A. contends insubstantial evidence supported the juvenile court's finding of jurisdiction over both children based on the allegations that he sexually abused L.B. We also disagree with this argument.
Under the substantial evidence standard of review, "our power begins and ends with a determination as to whether substantial evidence exists, contradicted or uncontradicted, supporting the [juvenile] court's determinations. We review the evidence in the light most favorable to the [juvenile] court's findings and draw all reasonable inferences in support of those findings. [Citations.] Thus, we do not consider whether there is evidence from which the [juvenile] court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw." (In re Noe F. (2013) 213 Cal.App.4th 358, 366.) We do not reweigh the evidence, resolve conflicts in the evidence, or make credibility determinations. (In re I.J. (2013) 56 Cal.4th 766, 773.) These areas are the sole province of the juvenile court. (Ibid.)
As pertinent here, a jurisdictional finding under section 300, subdivision (d) means that "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused . . . by his or her parent or guardian . . . , or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse." Section 300, "[s]ubdivision (j) applies if (1) the child's sibling has been abused or neglected as defined in specified other subdivisions," including subdivision (d), "and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions." (In re I.J., supra, 56 Cal.4th at p. 774.) But "'[s]ubdivision (j) does not state that its application is limited to the risk that the child will be abused or neglected as defined in the same subdivision that describes the abuse or neglect of the sibling. Rather, subdivision (j) directs the trial court to consider whether there is a substantial risk that the child will be harmed under subdivision (a), (b), (d), (e) or (i) of section 300, notwithstanding which of those subdivisions describes the child's sibling.'" (Ibid.)
Here, H.A. does not describe the evidence supporting the finding that he sexually abused H.A. and then explain why it amounts to insubstantial evidence. Instead, he contends the court's exclusion of the therapist's evidence denied "the court a full picture of the facts of the case," and, as a result, we should not defer to the court's resolution of contested factual issues or credibility determinations. This is not how an appellate court's substantial-evidence review works. Case law has firmly established that we defer to the lower court's resolution of contested factual and credibility issues. H.A. cites no authority for the notion that we should reject this deference, even when the court has excluded some purportedly relevant evidence. In any event, as we determined in part III.A., the court did not abuse its discretion in excluding the therapist's evidence.
Looking at the evidence as a whole, in the light most favorable to the judgment, we have no doubt there was substantial evidence that H.A. sexually abused L.B. What L.B. described to sheriff's deputies amounted to oral copulation (e.g., H.A. "let him eat his privates," and H.A.'s penis "gr[e]w big"). L.B. described oral copulation with H.A. in similar terms to the forensic interviewer, and he appeared to describe H.A.'s release as well (e.g., "bad" tasting "pee" that landed on H.A.'s penis, and H.A. suddenly going slack and relaxed while audibly exhaling). L.B. told maternal grandmother that H.A.'s penis smelled and was hard. At the jurisdiction/disposition hearing, he testified H.A. had done bad things to him, and he did not like living with H.A. as a result. He again described H.A.'s forcing him to orally copulate H.A. L.B. was able to discuss these acts but displayed extreme discomfort in doing so; he talked about them only after he saw most of the courtroom occupants cover their ears. While L.B.'s narratives were sometimes difficult to understand, the forensic interviewer opined that his limited attention span and hard-to-follow manner of speaking made him the perfect victim. The social worker found L.B.'s statements to be credible, even while she recognized the parties were in an ongoing custody dispute in family court, because she thought it unlikely anyone could coach L.B. to be so specific in his descriptions of the abuse. Having observed L.B.'s testimony, and taking into account the overall consistency of L.B.'s many statements over time, the court found L.B. to be a credible witness, a determination we will not second-guess on appeal. All of this constituted substantial evidence supporting jurisdiction under section 300, subdivision (d) on the ground that H.A. had inserted his penis into L.B.'s mouth.
As to jurisdiction over D.K. based on the section 300, subdivision (j) allegations, H.A. challenges the evidence of the first prong of subdivision (j). That is, he argues there was insufficient evidence that D.K.'s sibling—L.B.—had been abused within the meaning of section 300. We have already rejected this contention.
In light of our conclusion that there was substantial evidence H.A. sexually abused L.B., we need not reach H.A.'s further argument that insufficient evidence supported the allegations of domestic violence between him and maternal grandmother. (§ 300, subd. (b).) "When a dependency petition alleges multiple grounds for its assertion that a minor comes within the [juvenile] court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; accord, In re Shelley J. (1998) 68 Cal.App.4th 322, 330 [declining to address the remaining allegations after the court held one allegation under § 300 was supported].) The jurisdictional finding based on H.A.'s sexual abuse of L.B. provided ample basis for the court's dispositional order concerning H.A. H.A. has not explained how reversing the domestic-violence based finding will have any practical impact in this matter. We therefore decline to address this issue. C. H.A. Fails to Demonstrate That We Should Reverse the Dispositional Orders Removing the Children from His Custody and Terminating His Guardianship
We also reject H.A.'s argument for reversing the dispositional orders. The juvenile court may remove a minor from the physical custody of his or her guardian if the court finds clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from" the guardian's physical custody. (§ 361, subd. (c)(1).) The court may also remove the minor from the guardian's physical custody based on clear and convincing evidence that the "minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by" the guardian, "and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her" guardian. (§ 361, subd. (c)(4).) We review dispositional orders for substantial evidence. (In re Hailey T. (2012) 212 Cal.App.4th 139, 146.)
The court in dependency proceedings may terminate a guardianship over a child previously established under the Probate Code when termination is in the child's best interest. (Welf. & Inst. Code, § 728, subd. (a); Prob. Code, § 1601; In re Z.F. (2016) 248 Cal.App.4th 68, 73-74.) While we review the court's factual determinations underlying the termination decision for substantial evidence, we review the decision whether to terminate the probate guardianship for abuse of discretion. (A.H. v. Superior Court (2013) 219 Cal.App.4th 1379, 1392; Guardianship of L.V. (2006) 136 Cal.App.4th 481, 487-488.)
Here, H.A. argues we should reverse the dispositional orders for the same reason we have already rejected—namely, that the court, in excluding the therapist's evidence, did not review all of the "available evidence regarding sexual abuse" or did not engage in "a full consideration of the evidence concerning what did or did not happen" to L.B. He does not attempt to show the record as a whole lacked evidence of a substantial danger to the children's physical or emotional well-being, if they remained in H.A.'s custody. Nor does he attempt to show the record lacked evidence that terminating the guardianship served the children's best interest. Again, H.A. focuses on what was not in evidence, rather than the evidence on which the court actually relied. He has failed to carry his burden.
IV. DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P.J. CODRINGTON
J.