In Re Mary S.
WORK, Acting P.J.
(1a) The father appeals from an order of the juvenile court making his two daughters dependents of the court under Welfare and Institutions Code1
Appellant requested to be present during cross-examination of the minors. In chambers, outside of the parents’ presence, but in the presence of all counsel, the minors testified, both under direct and cross-examination, that they would be afraid to testify in front of their parents. They detailed their fears of parental interference during their testimony (i.e., the mother would call them a liar; the father would have an angry look in his eyes), and physical retaliation after the testimony (i.e., based on past beatings and threats to slash their throats if they disobeyed). One minor stated she would be unable to fully testify if her parents were in front of her, and the other minor stated she would be nervous and stutter a lot.
The trial court ruled the minors should testify out of their parents’ presence, stating it would recess at any time if the attorneys needed to contact the parents to discuss the minors’ testimony. The parties stipulated to the admission of the transcript of the minors’ testimony at a previous dependency hearing.2
We find the dicta in In re Tanya P. (1981) 120 Cal. App.3d 66, 69-70 [174 Cal. Rptr. 553], and the alternate holding in In re Stanley F. (1978) 86 Cal. App.3d 568, 574 [152 Cal. Rptr. 5], correctly analyze the precise issue raised, and conclude the trial court‘s ruling to exclude the parents was proper. In both cases, the parents did not object to the exclusion procedure. The court in In re Tanya P., supra, 120 Cal. App.3d at pages 69-70, held the argument was waived on appeal, but nevertheless evaluated the claim stating: “Appellant cites
The court in In re Stanley F., supra, 86 Cal. App.3d at pages 574-575, noted the parent did not object to the procedure, and then evaluated the claim, stating: “In any event, counsel for all parties were present in chambers when Stanley testified; and his testimony was transcribed by a reporter. Other jurisdictions have approved similar procedure for testimony by a minor — i.e., exclusion of other parties, provided all counsel are present and the testimony is transcribed. [Citations.]
“In California wardship proceedings the welfare of the child is of paramount concern. [Citations.]
“.... .... .... .... .... .... .
“In the present case, wherein counsel for all parties were present when the minor testified and his testimony was transcribed by a reporter, and counsel for the mother was afforded an opportunity to discuss such testimony and proceed further, the court did not abuse its discretion in excluding the other parties while the minor testified.”
(2) Dependency proceedings are civil in nature, designed not to prosecute a parent, but to protect the child. (In re Michael S. (1981) 127 Cal. App.3d 348, 363-364 [179 Cal. Rptr. 546], and cases there cited;
(3a) The express constitutional right to confrontation is confined to criminal proceedings.4 Nevertheless, in civil proceedings a party has a due process right under the Fifth and Fourteenth Amendments to the federal Constitution to cross-examine and confront witnesses. (August v. Department of Motor Vehicles (1968) 264 Cal. App.2d 52, 60 [70 Cal. Rptr. 172]; McLaughlin v. Superior Court (1983) 140 Cal. App.3d 473, 481-482 [189 Cal. Rptr. 479]; Jenkins v. Jenkins (1954) 125 Cal. App.2d 109, 113 [269 P.2d 908].) The same right is afforded by statute at dependency hearings. (
The right to confrontation at a criminal child molestation prosecution has been held to include not only the right of cross-examination, but the right to physical confrontation; i.e., a face-to-face meeting between the defendant and the child witness. (Herbert v. Superior Court (1981) 117 Cal. App.3d 661, 670-671 [172 Cal. Rptr. 850, 19 A.L.R.4th 1276].) (4) However, even in criminal proceedings, the right to physical confrontation is not absolute, but is subject to certain hearsay, consent, and waiver exceptions. (Id., at pp. 666-668.) (5) Nor is the right to confrontation absolute in civil proceedings. A trial court at a dependency hearing may control the proceedings “with a view to ... the ascertainment of all information relative to the present condition and future welfare” of the minor. (
Even assuming, arguendo, the face-to-face confrontation rule in Herbert should be extended to dependency hearings, dicta in that case supports its inapplicability to the facts of the case before us. The court in Herbert noted the factual setting which supported its conclusion the defendant (who was required to sit out of the line of vision of the child) had been deprived of his right to confrontation: “We have no specific record of the child‘s conduct which motivated the lower court to devise the seating arrangement in question. We have only the subjective observations of the court put into the record to justify and explain the unorthodox courtroom arrangement. We have no record of any intimidating action by the defendant. The courtroom was in effect closed without any request from the defendant or the prosecution. [Fn. omitted.] The witness was not sworn, by direction of the court, and, for the most part, from the record before us, appeared at ease on the witness stand, standing up from time to time until told to sit down, asking what a witness was, admiring a small plant in the courtroom (which the court said she might have `after you talk‘) and stating in response to defense counsel‘s inquiry about how she felt, `I feel happy.‘” (Herbert v. Superior Court, supra, 117 Cal. App.3d at pp. 670-671.) In contrast here, the minors’ testimony regarding their fears and inabilities to testify in front of their parents was transcribed, and clearly showed the basis for the court‘s ruling. Thus, even if the father had a right to physically confront his daughters at the dependency hearing, there is ample evidence showing the state‘s interest in obtaining the full story to protect the children outweighed his right to physical confrontation.
(6) The father argues that for the court to conclude the child‘s right to be free from injury outweighs the parent‘s right to confront witnesses against him, it must be presented with expert testimony on the child‘s condition, or the child‘s express refusal to testify, relying on Hochheiser v. Superior Court (1984) 161 Cal. App.3d 777, 787 [208 Cal. Rptr. 273]. In Hochheiser, the court held, assuming arguendo the use of closed-circuit television for a child victim‘s testimony in a sexual molestation case was permissible,7 expert testimony on the issue of the minor‘s condition necessitating the procedure, or the minor‘s own testimony, was a prerequisite. (Id., at pp. 792-794.)
Finally, relying on People v. Stritzinger (1983) 34 Cal.3d 505, 516-517 [194 Cal. Rptr. 431, 668 P.2d 738],8 it is argued there should be a showing the minors have expressly refused to testify, rather than merely expressed their fears to testify, before the procedure is used. In Stritzinger, our Supreme Court held a mother‘s testimony regarding her daughter‘s mental health was insufficient to support a finding of witness unavailability for mental illness or infirmity under
Again, Stritzinger involves a criminal proceeding and the right to confrontation at issue there is premised on the express constitutional guarantees in criminal, not civil, proceedings. (People v. Stritzinger, supra, 34 Cal.3d at p. 515.) We find that at a civil dependency proceeding a minor‘s expressed fear of testifying is sufficient, even if he or she does not flatly refuse to testify, particularly since, as the trial court stated, the possibility of intimidation “could ... have a profound effect upon their testimony.” Since fear could prevent the presentation of relevant evidence, it is to some extent tantamount to a refusal to testify.
Even if, arguendo, Stritzinger were applicable to a dependency hearing, its facts do not compel a contrary conclusion. The court in Stritzinger distinguished its decision in People v. Rojas (1975) 15 Cal.3d 540 [125 Cal. Rptr. 357, 542 P.2d 229, 92 A.L.R.3d 1127] (which held unavailability was established by a witness who testified he was afraid and absolutely would not testify): “In Rojas the witness who had testified at the preliminary hearing and at the first trial himself appeared at the beginning of the second trial and stated that he would refuse to testify out of fear. The court was
(7) The procedure here complies with the statutory requirements enacted by the amendment of
“(1) The court determines that testimony in chambers is necessary to insure 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.”
(1c) In sum, a parent has no fundamental right to physically confront his child during a civil dependency hearing. The trial court has discretion to conduct the proceedings in the best interests of the child, as long as the parents’ fundamental due process rights are not violated. Here, the minors
DISPOSITION
The judgment is affirmed.
Butler, J., and Benke, J.,* concurred.
Appellant‘s petition for review by the Supreme Court was denied December 3, 1986. Mosk, J., was of the opinion that the petition should be granted.