In Re Katrina L.
WHITE, P.J.
Appellant Charles M. (hereafter appellant) appeals from the order of the Superior Court of San Mateo County, sitting as a juvenile
On August 14, 1986, the minor was brought to Chope Hospital by her aunt after her aunt noticed that the minor had vaginal discharge and that her vagina appeared to be dilated. Dr. Harvey Kaplan conducted a physical examination of the minor which revealed physical evidence of chronic sexual molestation. On August 14, 1986, the minor was placed in a shelter care home where she remained until the completion of the jurisdictional and dispositional hearings on January 16, 1987.
On August 18, 1986, the San Mateo Department of Social Services (hereafter respondent) filed a petition with the juvenile court requesting a dependency hearing pursuant to
On December 3, 1986, the juvenile court read and considered the social study report prepared by the social worker. Respondent then called the minor as its witness and requested she be allowed to testify in chambers as she “is likely to be intimidated in a formal courtroom setting....” The court ruled that the minor could testify in chambers outside the presence of
Appellant moved for a continuance at the December 3 hearing in order that the transcript of the minor‘s testimony could be prepared and reviewed. The court granted a continuance until December 15, 1986. On December 15, 1986, appellant again moved for and was granted a continuance on the ground that insufficient time had been provided to review the transcript of the minor‘s testimony.
At the December 23, 1986, hearing appellant moved for and again was granted a continuance over respondent‘s objection. Appellant‘s ground for his motion for a continuance made at the December 23 hearing was that he wished to resolve pending criminal proceedings (involving the same sexual abuse of the minor that is the basis for the proceeding under consideration in this case) before testifying at the jurisdictional hearing. The juvenile court judge stated after granting this last continuance that no further continuances would be granted. Despite this statement by the judge, on January 16, 1987, appellant moved for a continuance pursuant to
The court denied appellant‘s motion for a continuance stating: “This matter has been pending a long time....” Respondent made an offer of proof stating that the minor‘s counselor was present and that if the counselor testified, she would state that another continuance would be contrary to the interest of the minor. Appellant‘s counsel did not request that the minor‘s counselor testify. Whereupon the court heard final arguments, sustained the allegations of the petition, found that appellant had molested the minor and declared that the minor was a dependent child of the court.
(1a) On appeal, appellant contends that the juvenile court abused its discretion by not granting appellant‘s continuance for the following reasons: (1) the court had granted a continuance on December 23, 1986, for three weeks because appellant‘s criminal trial was pending; (2) the juvenile court still had time to complete the dispositional hearing within the statutory time limit of six months; and (3) the denial of the continuance was against appellant‘s fundamental right to custody of his child and privilege against self-incrimination.
Appellant‘s first contention that the trial court had granted a continuance earlier on December 23, 1986, based on appellant‘s pending criminal prosecution, is accurate. However, when the juvenile court judge granted the continuance he expressed his concern, “The court will order — we will proceed — next hearing there will be no further continuances. I‘m getting concerned about the length of the time and the effect on the minor being in shelter care that long.”
Second, although the juvenile court had time to complete (one more month) the dispositional hearing, the juvenile court is not obligated to take the full six months to complete the hearing.3 Indeed, the judge earlier had expressed its concern about the length of time and warned that he would not grant another continuance.
Appellant, in analogizing In re Dolly A. with the instant case, argues that there was no demonstrable harm to the minor‘s interest by continuing the jurisdictional hearing, but there was harm to appellant — he had to forego his “constitutional right to testify and defend himself” in the dependency proceeding in order to preserve his right against self-incrimination.
In In re Dolly A. the court based its decision on the 1982 version of
However, an issue raised in In re Dolly A. and the present case deserves our attention. In In re Dolly A. the appellant argued the he was “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....” (In re Dolly A., supra, 177 Cal. App.3d at p. 200.) The court agreed with appellant‘s argument that the validity of former
In 1987, the California Legislature repealed former
A parent involved in a juvenile dependency proceeding should have the opportunity to testify on his or her behalf and his or her testimony should not be given at the expense of the privilege against self-incrimination. Indeed,
Appellant‘s second main contention is that the admissible evidence was insufficient to support the juvenile court‘s determination adjudging the minor to be a dependent child of the court and placing her with a nonparent. Appellant argues that the testimony of the minor may not be considered in determining whether sufficient evidence supports the juvenile court‘s determination since said evidence was inadmissible for the following reasons: (1) the minor‘s testimony in chambers did not meet procedural requirements and (2) the minor was an incompetent witness.
(3a) Appellant‘s contention that the minor‘s in chambers testimony was improper is based on
On appeal, this court will view the juvenile court record most favorable to the court‘s order. (In re Biggs (1971) 17 Cal. App.3d 337, 340 [94 Cal. Rptr. 519].) So viewed, the record reveals the following: The district attorney moved that “the minor be allowed to testify in chambers as the minor has been and is likely to be intimidated in the formal courtroom setting....” The appellant asked for a “predetermination on that ... and some foundational determination whether there would be harm and those have to be made on competent evidence not just offers of proof.” The court granted the district attorney‘s motion stating: “[T]here is sufficient information for the release at least prima facie case from the reading of the jurisdictional facts set forth.”
Appellant correctly distinguishes the present case from In re Mary S. (1986) 186 Cal. App.3d 414 [230 Cal. Rptr. 726], and In re Tanya P. (1981) 120 Cal. App.3d 66 [174 Cal. Rptr. 533], in that the minors in these cases expressly indicated their fear of testifying in front of their parents and their
(3b) Similarly, in the present case, the minor did not expressly state her fear of testifying; however, appellant‘s counsel was present while the minor testified, the testimony was transcribed and appellant had an opportunity to discuss the minor‘s testimony with his attorney.
(5a) Appellant next contends that the minor was an incompetent witness and therefore her testimony was inadmissible. (6) Respondent contends that this issue has been waived because appellant failed to make a timely objection in the lower court, citing People v. Singh (1920) 182 Cal. 457, 484 [188 P. 987].
However, closer examination of the record indicates that appellant‘s counsel did object to the minor‘s competency. After respondent‘s attorney asked his first substantive question and the minor answered, appellant‘s counsel objected and asked whether there needed to be established “foundational argument first....” The court responded that this was unnecessary and the finding need be made “[o]nly after she has testified. I don‘t understand why they made that change but — they did make that change in the code.” Indeed,
(5b) In regards to the minor‘s competency to be a witness, the 1985 amendment to
To support his argument that the minor was an incompetent witness, appellant points to inconsistencies in her testimony and to the fact that the minor indicated during her testimony that her foster parents may have suggested to her that her father hurt her. However, these facts go to the minor‘s credibility and not her competency to testify. (See People v. Knox (1979) 95 Cal. App.3d 420, 431 [157 Cal. Rptr. 238].) There is nothing in the record to indicate that the minor was disqualified from being a witness.
Appellant in his argument that the minor was an incompetent witness points out that the minor was not sworn before she testified. He then asserts that since there was no inquiry by the court as to her understanding of the obligation to tell the truth, her testimony was unreliable. Every witness before testifying shall take an oath to tell the truth. (
(9a) Appellant‘s final contention is that the evidence is insufficient to support the juvenile court‘s dispositional order removing the minor from her parents’ custody.
(10) The Court of Appeal in reviewing the sufficiency of the evidence in a juvenile court proceeding “must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also `... view the record in the light most favorable to the orders of the juvenile court.‘” (In re Luwanna S. (1973) 31 Cal. App.3d 112, 114 [107 Cal. Rptr. 62].) (11) At the dispositional hearing where the court awards custody of a minor to a nonparent, the standard of proof is clear and convincing evidence that an award of custody to a parent would be detrimental to the child and that the award of custody to a nonparent is in the best interest of the child. (In re Cheryl H. (1984) 153 Cal. App.3d 1098, 1112 [200 Cal. Rptr. 789].)
(9b) In the present case, the juvenile court stated: “I have reviewed the report that was filed and the Court has heard the testimony of Katrina.... [t]he Court is also satisfied by clear and convincing evidence, in fact beyond a reasonable doubt, that the child had been molested by the father. [¶] There is physical evidence also to show, to which in effect, corroborates the child‘s testimony and also the testimony or the evidence relating to her emotional state, etc., which is in line with the child that has been molested.”
The testimony of the minor supports the trial court‘s finding that she had been sexually abused by her father. The minor was examined by a doctor who testified that his findings regarding the minor‘s physical condition were the type of findings that have been reported in children who have been repeatedly molested or chronically penetrated. There is clear and convincing evidence that the minor was sexually abused by her father and such evidence supports the order adjudging the minor to be a dependent child of the court which order, thus, removed the minor from the custody of her parents.
Barry-Deal, J., and Merrill, J., concurred.