In Re Courtney S.
GRODIN, J.*
Katherine Q., mother of Courtney S., appeals from orders of the juvenile court which found Courtney to be a dependent child of the court within the meaning of
We first summarize the relevant pоrtions of the record, viewing it, as we must, in the light most favorable to the order of the juvenile court. (In re Luwanna S. (1973) 31 Cal. App.3d 112, 114 [107 Cal. Rptr. 62].)
Courtney was born March 27, 1975. Her parents, Katherine and Paul, were divorced shortly thereafter. Courtney remained with her mother, while her brother went with her father.
In 1976, Katherine began living with Arthur Q. On October 24, 1979, Courtney, then four and one-half years old, complained to her mother of an irritation of the vaginal and rectal areas, and revealed that Arthur had placed his penis in her anus on two occasions and that there had been oral copulation on a third occasion.
Arthur was arrested on October 31, 1979, and gave a statement to Detective Stevenson, which was tape recorded. In that statement, he admitted to sexual activity with Courtney over a long period of time. Arthur was charged with engaging in sexual acts with Courtney, and was held to answer on November 15, 1979. Katherine testified at the preliminary hearing. Following the preliminary hearing, Arthur admitted to Katherine that he had had sexual contacts with Courtney. Katherine at some point listеned to the taped statement which Arthur had given Detective Stevenson.
In November and December 1979, Katherine and Courtney each attended six counselling sessions with Christine Remus, a licensed marriage, family and child counsellor who works for an emergency treatment center in Palo Alto, and to whom Katherine and Courtney had been referred by the police. The purpose of the sessions was to help alleviate the trauma to both. Courtney, during one of these sessions, told Mrs. Remus she did not want Arthur to come hоme. At a counselling session on December 19, 1979, Mrs. Remus conveyed that information to Katherine, who began defending Arthur‘s actions. She stated something like, “I don‘t know what else he could have done after I refused kinky sex.”
Mrs. Remus regarded this reaction as indicative оf a “classical reaction for ... the mother in an incestuous family,” in which the mother permits a daughter to become her sexual substitute. Further counselling
After the preliminary hearing, Detective Stevenson had told Katherine to keep in touch, and let him know of any change in address, so that she would be available to testify at Arthur‘s trial. As it later appeared, Katherine movеd from Santa Clara County with Courtney in late November, to live with Arthur‘s family in Roseville, without informing Detective Stevenson or anyone in the juvenile department. On December 31, 1979, she and Arthur were married. Early in January, Katherine and Courtney moved to Bakersfield, again without notifying thе authorities. When the instant petition was filed, and she could not be located, a warrant issued. She appeared on February 25, 1980, to deny the allegations of the petition. At that time she met with a probation officer, but did not inform her that she and Arthur had been mаrried.
There was evidence that before the complaints by Courtney which precipitated these events Katherine had been suspicious, and with reason, that Arthur was molesting Courtney. There was also evidence that on several occasions Cоurtney was permitted to touch Arthur‘s penis, in Katherine‘s presence.
Mrs. Remus testified that in her opinion several years of therapy would be required before Katherine could be relied upon to protect Courtney, and that the danger existed even thоugh Arthur was subject to a court order not to have any contact with Courtney for a period of five years. Katherine testified it was her plan to set up separate households, one for herself and Courtney, and a second for Arthur and herself, and havе the child stay with the grandparents in Roseville during periods of contact between Arthur and herself.
Additional evidence was adduced at the disposition hearing, following the court‘s jurisdictional order. Paul S., Courtney‘s father, testified that when he lived with Katherine he found his sоn, Mark, tied to bedposts in the home. Diane Everstine, head of the emergency treatment center of Santa Clara County and the supervisor of Mrs. Remus, expressed
Discussion.
1. Admissibility of the tape recording.
Arthur appeared at the hearing, but invoked his immunity under the Fifth Amendment. The tape recording of his statement to Detective Stevenson was admitted into evidence on the basis of his consequent “unavailability” as a witness (
(1) The first contention runs counter to the established rule that a witness retains the privilege during the pendеncy of an appeal. (People v. Lopez (1980) 110 Cal. App.3d 1010, 1021 [168 Cal. Rptr. 378].) Since Arthur still had the right to appeal at the time his testimony was sought, the privilege was still available to him.
(2) The district attorney, representing Courtney, called Arthur as a witness. When Katherine requested immunity so that Arthur could be compellеd to testify, the district attorney objected, and refused. The trial court was obligated to “treat such an objection and declaration as conclusively establishing that an immunity order ... cannot be issued because it would or might unduly hamper criminal prosecution of the witness.” (Daly v. Superior Court (1977) 19 Cal.3d 132, 148 [137 Cal. Rptr. 14, 560 P.2d 1193].) Thus, the trial court had no real power to grant immunity. (Ibid.; see also, James Talcott, Inc. v. Short (1979) 100 Cal. App.3d 504, 510 [161 Cal. Rptr. 63]; Rysdale v. Superior Court (1978) 81 Cal. App.3d 280, 285 [146 Cal. Rptr. 633].)
(3) Appellant‘s conflict of interest argument is asserted for the first time on appeal. While she contends that the district attorney should not have been permitted to represent Cоurtney, because of possible conflicts
(4) Finally, and contrary to appellant‘s fourth contention, the tape recording was clеarly admissible as a declaration against penal interest (
2. Psychotherapist-patient privilege.
(5) Appellant objected to the admission in evidence of testimony by Mrs. Remus and Dr. Everstine concerning communications by Courtney and Katherine in the course of counselling sessions, on the basis of the psychotherapist-patient privilege (
Whether or not Katherine was in a position to invoke Courtney‘s privilege, as against the district attorney‘s waiver (see
(6) We likewise find no error in the trial court‘s determination that
3. Admissibility of the social study report.
Appellant objected in the trial court to the admission of the social studies report at the jurisdictional hearing, and the objection wаs overruled. She candidly concedes that the trial court‘s ruling was correct under In re Biggs (1971) 17 Cal. App.3d 337 [94 Cal. Rptr. 519], and as codified in the California Rules of Court for juvenile proceedings, rule 1365, but invites us to “overrule” that case, on the ground that the applicable provisions of the Welfare and Institutions Code (§§ 355, 358, 701) contemplate receipt of the social studies report only after the jurisdictional hearing. We decline the invitation. (See also, In re La Shonda B. (1979) 95 Cal. App.3d 593, 601 [157 Cal. Rptr. 280].)
(7) Appellant contends that even considering the evidence she says should have been excluded, there was insufficient evidence to support either the trial court‘s jurisdictional finding or its dispositional order. We do not agree. There was sufficient evidence to support a finding, not only that the child had been molested, but that the mother was unlikely to protect the child against similar molestation in the future, and thus to establish that the mother‘s home was “an unfit place for him [or her] by reason of neglect, cruelty, depravity, or physical abuse.” (
Affirmed.
Racanelli, P.J., and Goff, J.,* concurred.
Appellant‘s petition for a hearing by the Supreme Court was denied June 9, 1982.