In Re Dolly A.
OPINION
Defendant Robert A. appeals from an order declaring his daughter, Dolly, a dependent child of the court (
I.
Dolly is the daughter of divorced parents. In February 1983, Dolly, who was then seven years of age, returned from a weekend visit to her father, defendant Robert A., and told her mother that during that visit and on
A petition filed March 3, 1983, alleged that Dolly was residing in a home unfit by reason of depravity because of sexual molestation by defendant. (
On three occasions the jurisdictional hearing in the dependency matter was continued at defendant‘s request. On April 18, 1983, defendant moved for an order requiring Dolly to submit to a psychiatric evaluation. On the same day, defendant also moved to continue the dependency proceeding pending completion of his trial on the criminal charges, and also moved for an order granting him discovery of various school, medical, law enforcement and social agency records. All three motions were denied on April 19, 1983.
On April 20, 1983, the jurisdictional hearing was held. Defendant submitted his case on the probation report. The petition, as amended to allege that the acts of molestation had occurred “on or about, during and between the months of Nov. 1982 and Feb. 1983,” was found to be true.
At the dispositional hearing held on May 19, 1983, Dolly was put in the custody of her mother under the supervision of a probation officer. The court also ordered that she was to have no contact with defendant.
II.
Continuance
(1) Defendant argues that the court ought to have granted his request to continue the dependency hearing pursuant to
Defendant argues that, in this instance, none of the three itemized factors were present. In April 1983, Dolly was living with her mother. From the time of defendant‘s arraignment, he was prohibited by court order from visiting Dolly. Likewise, beginning April 6, 1983, there was an order of the juvenile court providing that Dolly was to remain with her mother and “to have no contact with [her] father.” Thus, when the court denied defendant‘s request for a continuance on April 19, Dolly was living with her mother in the same home as she had been since her parents separated some six months after her birth. The sole change in her living arrangement was that she would no longer pay bimonthly visits to defendant. Defendant contends that under these circumstances, Dolly was neither undergoing a temporary placement nor living in an environment any less stable than that in which she had spent virtually all of her life. Likewise, he argues, the prompt resolution of her custody status was also irrelevant since Dolly was still in the primary care of her mother and the delay until the criminal matter was to be heard would have been no more than “six to ten weeks. . . .”
At the hearing on the motion to continue, Dolly‘s counsel apparently conceded that none of the factors specifically set out in
While it is entirely plausible that the victim of a sexual assault would dread having to testify about the assault and would be especially uncomfortable about accusing her father, it is difficult to know whether a seven-year-old child would be caused great anxiety by such a prospect or by potential delay in giving her testimony. Arguably, the worst injury that a continuance could have caused Dolly would have been the risk that after six to ten weeks she would have been unable to recall the assaults precisely;
Here, counsel for the minor conceded that none of the specific factors to be given “substantial weight” under
Defendant argues that his interest as “a parent in the companionship, care, custody and management of his [child] is a compelling one, ranked among the most basic of civil rights.” (In re B.G. (1974) 11 Cal.3d 679, 688 [114 Cal.Rptr. 444, 523 P.2d 244]; Stanley v. Illinois (1972) 405 U.S. 645, 651-652 [31 L.Ed.2d 551, 558, 92 S.Ct. 1208].) This interest was, he argues, infringed upon when the court refused to grant him a continuance, and he was then forced to elect whether to testify at the dependency proceeding and run the risk that his testimony would be used either directly or indirectly in his criminal prosecution or to decline to testify and forego defending his rights to custody of Dolly.
In seeking the continuance, defendant argues that despite
Defendant also raises the alternative argument that, even if
Faced with these unpalatable possibilities should he take the stand in the juvenile court proceeding, defendant contends he had no choice but to submit the dependency determination on the probation report. As the court informed defendant, that decision to submit was tantamount to conceding his custody rights: “My understanding submitting it on the probation report is that you [defendant] are having a court trial, and you‘re almost a hundred percent certain if you submit it on the probation report that the court will sustain the petition.”
In this instance, where denial of a continuance forced defendant to elect between giving up his right not to be deposed as a criminal defendant and his right to testify on his own behalf in the proceeding to deprive him of custody of his daughter, we find it was an abuse of discretion to deny the continuance. The risk of possible injury to Dolly‘s interests was relatively slight, whereas the infringement upon defendant‘s rights was a clear and serious danger. Accordingly we remand for a new jurisdictional hearing.
III.
a. Applicability of Penal Code Section 1112
(2a) In light of our determination that the case must be remanded for a new hearing, we address defendant‘s additional claims of error for the guidance of the juvenile court at the second hearing. Defendant cites as error the denial by the court of his motion for a psychiatric examination of Dolly, based upon the rule of Ballard v. Superior Court (1966) 64 Cal.2d 159, 176-177 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416]. The Ballard court held that the complaining witness in a criminal case involving a sex violation could be ordered to submit to a psychiatric examination if the defendant demonstrated a compelling need for such examination, as where there was little or no corroboration of the charge or the complaining witness’ mental or emotional condition was in question. The trial court found that this so-called Ballard motion was precluded by
Defendant contends that the juvenile court erred in finding that
It is clear from the legislative history of
(3) The crucial issue here, then, is not the fact that Dolly is a child, but whether a dependency proceeding is civil or criminal in nature. The answer to that question turns upon whether we view a dependency action from the vantage point of the parent or that of the child. There is authority for the view that a dependency proceeding is a “true civil cause, comparable in essentials to a child custody controversy between parents, except that the controversy is not between parents but one between a parent (or parents) and the state as parens patriae.” (In re Robinson (1970) 8 Cal.App.3d 783, 786 [87 Cal.Rptr. 678]; cert. den. sub nom. Kaufman v. Carter (1971) 402 U.S. 964 [29 L.Ed.2d 128, 91 S.Ct. 1624].) The Robinson court adopts, in essence, the view of the child for whom the question of custody is truly civil.
However, from the vantage point of the parent, especially a parent who is facing the loss of future contact with his child because of the alleged “depravity” of his own behavior, the dependency proceeding is more nearly criminal in nature. “In most dependency matters the focus is against the parent and the prospect faced is the drastic result of loss of his child. Although legal scholars may deemphasize the adversary nature of dependency proceedings and characterize the removal of the child from parental custody as nonpunitive action in the best interests of the child, most parents would view the loss of custody as dire punishment.” (Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 901 [97 Cal.Rptr. 158].)
(2b) Here, defendant faced not only loss of custody of Dolly, but also criminal charges, both punitive actions arising from the same alleged acts
b. Constitutionality of Penal Code Section 1112
Defendant also contends that even if
IV.
Denial of Discovery
(4) Finally, defendant maintains that the court erred in denying his motion to discover “records, memorand[a] and information” both “oral or written” possessed by some 16 individuals, schools, hospitals and agencies. In denying the motion, the court found that the request was “too broad” and concluded that it should be denied because the court had “no recognizable standard upon which to judge the relevance of these items. . . .” The court did note that certain school records, records of the county juvenile probation department and of the county child abuse center would be made available to defendant if they were in the possession of the district attorney. However, as to records of other hospitals and individual doctors, the court declared that it had no way to judge the relevance of the requested records, which in any event might be privileged.
Juvenile courts, like all other courts, possess inherent power to order discovery. (Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 801-802 [91 Cal.Rptr. 594, 478 P.2d 26].) That power may be exercised subject to a showing by the party seeking discovery of “good cause” for the material he seeks which must be set out with “specificity” and accompanied by a “plausible justification” of need for the material. (Id., at p. 804.) This rule, originally articulated in the context of a delinquency proceeding and thus based upon analogous criminal procedures, is likewise applicable to dependency proceedings brought under
Defendant argues that broad discovery, such as that available in civil matters, should be permitted in dependency hearings. Whatever the merit of that contention, the argument is unsupported by current law or by the theory of juvenile practice which seeks the speedy and informal resolution of dependency cases. (
The orders are reversed and the matter remanded to the juvenile court for a new jurisdictional hearing.
Kline, P.J., and Smith, J., concurred.