Filed 5/29/18
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION ONE


In re DANIELA G., a Person Coming
Under the Juvenile Court Law.


SAN FRANCISCO HUMAN SERVICES
AGENCY,
        Plaintiff and Respondent,                   A152434
v.
                                                    (San Francisco County
W.G.,                                               Super. Ct. No. JD17-3114)
        Defendant and Appellant.



        W.G. (father) was accused of molesting his 13-year-old stepdaughter
(stepdaughter) and grooming his eight-year-old daughter, Daniela G., for sexual abuse.
He challenges an order finding dependency jurisdiction over Daniela, awarding sole
custody of her to his wife (mother), and dismissing the case. In a claim we reject, he
argues that he was denied due process because the juvenile court refused to require
Daniela and stepdaughter to testify at the combined jurisdictional and dispositional
hearing.
        In certain circumstances, a witness may be excused from testifying when found
“unavailable” due to a physical or mental illness or infirmity, including when the witness
is a victim of a crime and would experience sufficient trauma if forced to testify. (Evid.
Code, § 240, subds. (a)(3), (c).)1 But because this statute has significant limits on its
applicability, case law has recognized a broader basis for excusing a child from testifying
        1
            All further statutory references are to the Evidence Code unless otherwise noted.

                                                1
in a dependency proceeding. A juvenile court can, consistent with a parent’s due process
rights, refuse to compel the testimony of a child who is otherwise available when “the
possible benefit derivable from [the] testimony would not warrant the [psychological]
injury it would cause.” (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1085-1086, 1088
(Jennifer J.).) Jennifer J. announced this principle in the context of excluding a child’s
testimony at a selection-and-implementation hearing under Welfare and Institutions Code
section 366.26, and no published decision has explicitly extended it to apply to
jurisdictional and dispositional hearings. We do so here, and we conclude that the
juvenile court properly applied the principle in excusing Daniela and stepdaughter from
testifying. We therefore affirm.
                                           I.
                                 FACTUAL AND PROCEDURAL
                                      BACKGROUND
       In late April 2017, stepdaughter told her maternal uncle, who resided in the family
home, that she was upset because father was in a bedroom with Daniela. The uncle
listened at the bedroom door, and he heard Daniela say, “You need to put your clothes
on,” and father say, “C’mon mami[,] give me a massage.” The uncle immediately called
mother, who came home and found the bedroom door locked. After mother knocked,
father opened the door and then got into the bed. Daniela was also in the bed and
“ ‘looked afraid.’ ” Later, mother found a note stepdaughter had written in which she
expressed suicidal thoughts. When asked about the note, stepdaughter told mother that
father had been molesting her.
       Soon after, mother took stepdaughter to the police station to make a report, and
stepdaughter and Daniela were interviewed at the Child and Adolescent Sexual Abuse
Resource Center (CASARC). Stepdaughter said that father “had touched her vagina,
breasts[,] and butt” and “had penetrated her vagina with both his penis and his fingers.”
The sexual abuse had been going on for two years, and she was afraid the same thing
would happen to Daniela. Daniela did not disclose any abuse, although she said she




                                             2
sometimes gave father massages. Both girls denied any mistreatment by mother.
Physical exams of the girls did not reveal any indications of sexual abuse.
       Daniela and stepdaughter had been the subject of a child welfare investigation in
2015 after father was accused of viewing child pornography on his computer. He denied
doing so but, against mother’s wishes, he kept a computer in the home after that
investigation was closed. Mother reported that she and father had a “toxic” relationship,
and she “worrie[d] that . . . father sexually abused [stepdaughter] to get back at her.”
Father was arrested, and when contacted in jail, he “denied abusing [stepdaughter] and
provided no further information.”
       In early May 2017, real party in interest the San Francisco Human Services
Agency (Agency) filed a petition seeking dependency jurisdiction over Daniela under
Welfare and Institutions Code section 300, subdivision (b) (failure to protect) and
subdivision (d) (sexual abuse) on the basis that she was at risk of harm based on the
bedroom incident and father’s sexual abuse of stepdaughter.2 At the detention hearing,
the juvenile court placed Daniela with mother and ordered that father not have any
visitation. It also granted a restraining order protecting mother, Daniela, and
stepdaughter from father.
       The June 2017 dispositional report recommended that the petition’s allegations be
sustained, the petition be dismissed, and mother, who was in the process of divorcing
father, be awarded sole custody of Daniela. Mother stated that she believed stepdaughter
“100 percent” and had “no doubt” that the allegations of sexual abuse were true. Father
continued to deny the allegations and said he did “not know why [stepdaughter] would
lie,” though he speculated that she was aware his and mother’s “relationship [was]
disintegrating” and might be taking mother’s side. He opposed the Agency’s
recommendations and expressed a desire for shared custody of or visitation with Daniela.
Although Daniela had stated during her CASARC interview that she would be “sad” if
separated from father, she now said she did not want visits with him.

       2
        A dependency petition was also filed for stepdaughter, but the Agency withdrew
it a month later.

                                              3
       Father subpoenaed Daniela to testify at the July 2017 combined jurisdictional and
dispositional hearing. Shortly before the hearing, her counsel filed a motion to quash the
subpoena under section 240 and Jennifer J. because testifying could cause her
“psychological injury.” The motion also sought admission of Daniela’s statements in the
Agency reports and CASARC interview under the child dependency hearsay exception.
(See In re Cindy L. (1997) 17 Cal.4th 15, 18.) Father opposed the motion, arguing that a
finding of unavailability under section 240 based on a risk of psychological harm
required an expert opinion that the child would be traumatized by testifying.
       Father apparently also subpoenaed stepdaughter, and counsel was appointed to
represent her for purposes of the combined jurisdictional and dispositional hearing. No
written motions involving any such subpoena are in our record, but stepdaughter’s
counsel at the hearing alluded to a request that stepdaughter be found unavailable to
testify. Counsel noted that she had obtained a letter from the clinician who had
conducted stepdaughter’s Child and Adolescent Needs and Strengths (CANS)
assessment, in which the clinician stated that stepdaughter was “experiencing significant
psychological symptoms,” including symptoms of PTSD, and was “very vulnerable.”
The clinician also stated that the stress of testifying would put stepdaughter at risk given
her “history of self-harm and suicidal ideation.” The juvenile court deferred ruling on
“the motion regarding not having either child testify” until other evidence had been
presented.
       Two social workers testified at the hearing. The social worker in this case opined
that having Daniela testify would be “extremely detrimental” because of her age and the
nature of the allegations against father. The worker also testified, as to stepdaughter, that
“anyone who has been a victim of sexual abuse is emotionally traumatized by the events
that occurred” and that it would be “detrimental for her to have to testify and see” father.
       A social worker who investigated stepdaughter’s case testified that stepdaughter
was “very fearful” and “very embarrassed” and felt “a tremendous amount of guilt that
she hadn’t come forward earlier” to protect Daniela. The worker also characterized
Daniela as “a very young eight-year-old” who was “not sophisticated” and might not


                                              4
“even know[] what sex is” or fully understand what father had done to stepdaughter
except that it was “something bad.” This worker agreed it would be “harmful” to both
girls if they had to testify in court in front of father. The worker also indicated that
visitation with father would be detrimental to Daniela because father had engaged in
“grooming behaviors,” denied any abuse, and failed to seek treatment.
       The juvenile court admitted the Agency’s detention/jurisdiction and dispositional
reports into evidence. It also admitted the recordings of the CASARC interviews of
Daniela and stepdaughter, as well as their CANS assessments and the letter from the
clinician who had done stepdaughter’s assessment. Father did not present any witnesses
or documentary evidence, except for a transcript of Daniela’s CASARC interview. On
appeal, he does not challenge the admission of any of the Agency’s evidence, including
the girls’ out-of-court statements.
       The juvenile court ruled that neither Daniela nor stepdaughter would be required
to testify. Citing Jennifer J., the court observed that it had “to weigh whether the live
testimony of either of these children would materially affect issues that [it] need[ed] to
resolve . . . against the potential psychological injury that could happen to either of these
children if they had to testify in front of [father].” It rejected father’s argument that “a
medical person or a therapist . . . actually [has] to come to court and say it’s not in these
children’s best interest to testify” and found there was “an abundance of evidence . . . that
it would be harmful to [them] to have to testify in front of [father].” It also found that
admitting the CASARC interviews “without the testimony of these children” did not
violate father’s constitutional rights and specifically found stepdaughter’s statements
“extremely credible.”
       The juvenile court found the petition’s allegations true, except that it struck an
allegation that mother had not protected Daniela from sexual abuse. The court also found
that visitation with father would be detrimental to Daniela. It awarded sole custody to
mother and dismissed the petition.




                                               5
                                             II.
                                        DISCUSSION
       Father claims the juvenile court erred by not requiring either Daniela or
stepdaughter to testify because (1) the court did not consider the possibility of having
them testify in chambers, outside of his presence, and (2) there was insufficient evidence
that either girl would be traumatized by testifying. He argues that the court’s ruling
violated his due process rights to confront and cross-examine witnesses and present
evidence. We are not persuaded.
       A.     Standards of Review.
       We review the exclusion of a child’s testimony to avoid psychological harm to the
child for an abuse of discretion. (See Jennifer J., supra, 8 Cal.App.4th at p. 1088.) To
the extent father challenges the factual findings underlying the juvenile court’s ruling, our
review is for substantial evidence, and to the extent his claims raise questions of law, our
review is de novo. (See In re D.M. (2015) 242 Cal.App.4th 634, 640.)
       B.     Father Forfeited His Argument that the Juvenile Court Was Required to
              Consider Having the Girls Testify in Chambers.
       On appeal, father argues that the juvenile court erred by not considering the
possibility of having Daniela and stepdaughter testify outside of his presence. We agree
with the Agency that father forfeited this argument by not raising it below. A minor’s
testimony may be taken in chambers without a parent present in certain circumstances,
including when “[t]he minor is afraid to testify in front of his or her parent.” (Welf. &
Inst. Code, § 350, subd. (b).) Father never argued below that either girl should testify in
chambers, and the court apparently did not consider the possibility. Father contends that
he nevertheless preserved the issue because “[t]here are no additional facts that would
have to be presented for the children to testify in . . . chambers.” But the court was not
required as a matter of law to use this procedure (see In re Juan H. (1992) 11 Cal.App.4th
169, 172), and father does not claim otherwise. Because the issue was never raised, there
is no ruling that we can evaluate for an abuse of discretion, and the claim is therefore
forfeited. (See In re S.C. (2006) 138 Cal.App.4th 396, 426.)



                                             6
       C.      The Juvenile Court Could Properly Excuse the Girls from Testifying
               Regardless of Whether They Were Unavailable Under Section 240.
       Father spends much of his briefing addressing the standards for finding a witness
unavailable to testify under section 240. But we need not decide whether these standards
were met because the juvenile court excused Daniela and stepdaughter from testifying
based on Jennifer J., not a finding of unavailability under section 240.
       Under section 240, a witness is unavailable to testify if the witness is “[d]ead or
unable to attend or to testify at the hearing because of then-existing physical or mental
illness or infirmity.” (§ 240, subd. (a)(3).) To support a finding of unavailability based
on “mental illness or infirmity” under section 240, subdivision (a)(3), “ ‘the illness or
infirmity must be of comparative severity; it must exist to such a degree as to render the
witness’s attendance, or his [or her] testifying, relatively impossible and not merely
inconvenient.’ ” (People v. Christensen (2014) 229 Cal.App.4th 781, 791.) In this
context, “ ‘the phrase “relatively impossible” to testify does not mean it is impossible to
elicit the testimony due to insanity or coma or other total inability to communicate.
Rather, the phrase includes the relative impossibility of eliciting testimony without risk of
inflicting substantial trauma on the witness.’ ” (Ibid., italics omitted.)
       One way of establishing unavailability under section 240, subdivision (a)(3) is
through “[e]xpert testimony that establishes that physical or mental trauma resulting from
an alleged crime has caused harm to a witness of sufficient severity that the witness is
physically unable to testify or is unable to testify without suffering substantial trauma.”
(§ 240, subd. (c).) As used in section 240, “ ‘expert’ means a physician and surgeon,
including a psychiatrist, or any person described by subdivision (b), (c), or (e) of
Section 1010.” (§ 240, subd. (c).) In turn, those provisions cover licensed
(1) psychologists, (2) clinical social workers when they are “engaged in applied
psychotherapy of a nonmedical nature,” and (3) marriage and family therapists. (§ 1010,
subds. (b), (c), (e).)
       Father contends that the girls were erroneously excluded as witnesses because the
evidence presented about the risk of harm did not satisfy the requirements for expert


                                               7
testimony under section 240, subdivision (c). But a juvenile court has discretion to refuse
to require a child to testify even when section 240’s requirements are not met if the
material effect of the child’s testimony on the relevant issues is outweighed by the
psychological injury the child risks by testifying. (Jennifer J., supra, 8 Cal.App.4th at
pp. 1085-1086, 1088.) Thus, the question we must resolve is whether the juvenile court
correctly relied on Jennifer J. to excuse the girls from testifying.
       D.     The Juvenile Court’s Exclusion of the Girls’ Testimony Comported with
              Principles of Due Process.
       “Parents have a fundamental liberty interest in the care, custody, and management
of their children.” (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777.)
Unlike a criminal defendant, a parent in a dependency proceeding does not have a right
“to full confrontation and cross-examination” under the Sixth Amendment of the federal
Constitution or article I, section 15 of the California Constitution. (In re Sade C. (1996)
13 Cal.4th 952, 991-992; In re Amber S. (1993) 15 Cal.App.4th 1260, 1264.) A parent
does, however, have “a due process right to a meaningful hearing with the opportunity to
present evidence,” including a right to confrontation and cross-examination of witnesses.
(Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146; Amber S., at p. 1264;
see also Welf. & Inst. Code, §§ 311, subd. (b), 341, 350, subd. (c); Cal. Rules of Court,
rule 5.534(g)(1).)
       In Jennifer J., the Fourth District Court of Appeal determined that a juvenile court
has “discretion to exclude the testimony of a child in order to avoid psychological harm
to the child, even though that testimony is relevant, the child is competent to testify, and
the child is both practically and legally ‘available’ to testify,” including under
section 240. (Jennifer J., supra, 8 Cal.App.4th at pp. 1085-1086, 1088.) Given “the
overriding objective of the dependency hearing[,] to preserve and promote the best
interests of the child, . . . [i]t would be a perversion of the procedure to impose upon it a
requirement that the child’s testimony always be presented, regardless of the trauma
resulting to the child therefrom, and regardless of the necessity of such testimony in the
resolution of the issues before the court.” (Id. at p. 1089.) Jennifer J. held that in


                                              8
considering whether to exclude a child’s testimony, a court must engage in “a careful
weighing of the interests involved,” including a parent’s right to call and cross-examine
witnesses. (Id. at p. 1086; see also Maricela C. v. Superior Court, supra, 66 Cal.App.4th
at p. 1146 [“Due process requires a balance”].) The child’s testimony can be properly be
excluded where “the child’s desires and wishes can be directly presented without live
testimony, where the issues to be resolved would not be materially affected by the child’s
testimony, and where it is shown that the child would be psychologically damaged by
being required to testify.” (Jennifer J., at pp. 1086-1087, 1089; see also In re Amber S.,
supra, 15 Cal.App.4th at pp. 1264-1265 [recognizing juvenile court’s “inherent power to
fashion novel procedures” after weighing impact on parent’s rights against child’s best
interests].)
       Father argues that In re Amy M. (1991) 232 Cal.App.3d 849 (Amy M.), not
Jennifer J., should control the outcome here. In Amy M., the Sixth District Court of
Appeal held that the juvenile court’s refusal to require a child to testify at a jurisdictional
hearing, based on an expert opinion that it would be “stressful” for the child to do so,
violated the parents’ due process rights. (Amy M., at pp. 863-864.) But Amy M. involved
distinguishable circumstances. In Amy M., the child’s testimony would have been
material to a disputed issue—whether the child suffered sufficient emotional damage to
find jurisdiction—because it would have allowed the juvenile court to evaluate the expert
testimony on that issue. (Id. at p. 865.) And there was no “substitute for [the child’s]
testimony which might have satisfied due process.” The child had not testified at
previous hearings, none of his statements were in the social services agency’s reports,
and the juvenile court did not permit the parents’ counsel or their expert to have contact
with him before the hearing. (Ibid.)
       In reaching its holding, Jennifer J. determined that Amy M. did not control.
(Jennifer J., supra, 8 Cal.App.4th at p. 1087.) In Jennifer J., the parents sought to call
their daughter as a witness at the selection-and-implementation hearing, believing that
“she would state a desire for continued parental contact and would evidence some level
of bonding.” (Id. at p. 1085.) The mother proposed that her daughter be excused from


                                               9
testifying if a stipulation could be reached that the daughter would so testify if called as a
witness. (Ibid.) Although the stipulation was ultimately not reached, the juvenile court
“accepted as established” that the daughter would testify she was bonded and would like
further contact with her parents. (Id. at p. 1087.) Thus, unlike in Amy M., where “the
minor’s testimony could have assisted in resolving a disputed issue,” in Jennifer J. “the
facts sought to be established by the minor’s testimony were in fact accepted.”
(Jennifer J., at p. 1087.) Moreover, in Jennifer J. “the crucial factor” in the juvenile
court’s decision to free the minor for adoption was that continued contact with her
parents would be detrimental, “a matter about which the minor had no knowledge, and
the resolution of which would not have been aided by the minor’s testimony.” (Id. at
pp. 1087-1088.)
       We recognize that because this case is an appeal from jurisdictional and
dispositional findings, its procedural posture is closer to the one in Amy M., which also
involved a jurisdictional hearing, than it is to the one in Jennifer J., which involved a
hearing to terminate parental rights. But Jennifer J.’s logic is not limited to that
particular stage of a dependency proceeding. The decision affirmed the exclusion of
testimony based on the “overriding objective” of protecting a child’s best interests
(Jennifer J., supra, 8 Cal.App.4th at p. 1089), which applies at all stages of a dependency
proceeding.3 Potential trauma to a child is no less of a concern when deciding issues
other than whether to terminate parental rights.4

       3
         We need not consider how the analysis might be affected when a child witness is
not the subject of the dependency case and protecting that child’s best interests is not the
primary consideration. Father does not argue for any distinction between Daniela and
stepdaughter on this ground, and in any event stepdaughter had also recently been
involved in dependency proceedings.
       4
         To be sure, the procedural posture of a case may affect the analysis. For
example, Jennifer J. approved the exclusion of a child’s testimony where “the child’s
desires and wishes can be directly presented without live testimony” (Jennifer J., supra,
8 Cal.App.4th at p. 1089), but here the girls’ wishes were not relevant to the jurisdictional
issue. Given its broader logic, however, we do not read Jennifer J. to hold that excluding
a child’s testimony is appropriate to avoid trauma to the child only where the particular
circumstances it identified are present.

                                              10
       In attempting to distinguish Jennifer J., father emphasizes that stepdaughter’s
“claim of sexual abuse” was disputed, and we understand that whether visitation with
father would be detrimental to Daniela was also disputed. But even if a child’s testimony
might touch upon a disputed issue, Jennifer J. authorizes the exclusion of that testimony
“where the issue to be resolved would not be materially affected by the child’s
testimony.” (Jennifer J., supra, 8 Cal.App.4th at p. 1089, italics added.) This standard
was met as to Daniela’s testimony and, while a closer call, as to stepdaughter’s testimony
as well.
       Father argues that cross-examination of Daniela was “critical” because her
“hearsay statements . . . formed the basis of the allegations against [him].” He also
suggests that her testimony would bear on whether she was “distressed” around him and
thus whether he should be permitted visitation. But Daniela’s testimony would not have
helped to resolve any disputed issue. Daniela never said that father had sexually abused
her or stepdaughter. She said only that she sometimes gave him massages, and father
never denied this behavior. Nor did father deny any of the details, as reported by both
stepdaughter and the girls’ uncle, about the incident in which father and Daniela were in
bed together. In addition, the court’s determination that visitation was inappropriate was
based primarily on father’s failure to show even a “slight understanding of the horror of
what he perpetrated on these two little girls,” not on Daniela’s expressed wishes. (See
Jennifer J., supra, 8 Cal.App.4th at p. 1088.) And Daniela’s statement during her
CASARC interview that she would miss father if separated from him was in evidence
anyway. (See id. at p. 1087.) Thus, Daniela’s testimony would not have materially
affected the court’s resolution of either the jurisdictional or the visitation issue.
       Father also argues that cross-examination of stepdaughter was critical because the
key disputed issue was whether he sexually abused her. We agree that stepdaughter’s
allegations went to the heart of the case, but father fails to persuade us that her testimony
would have materially affected the juvenile court’s evaluation of the truth of the
allegations. The Agency’s reports contained father’s general denial of abusing
stepdaughter, but he did not testify or challenge any specific details of her allegations.


                                               11
Nor, in urging that she testify, did he identify any basis on which he hoped to impeach
her. In contrast, stepdaughter described the sexual abuse in significant detail in her
CASARC interview, and the juvenile court found her statements to be extremely credible.
In many cases, a court will not be able to rely on Jennifer J. to exclude a child from
testifying because the testimony while subject to cross-examination may materially affect
the assessment of the child’s credibility. But where, as here, the child describes abuse in
out-of-court statements the court finds credible, and the alleged perpetrator denies the
abuse but does not suggest how the child could be impeached, the court can reasonably
conclude that forcing the child to testify would not materially affect its credibility
assessment.
       Having rejected father’s claim that Jennifer J. is inapplicable because the girls’
testimony would have materially affected the resolution of disputed issues, we have no
trouble concluding there was sufficient evidence that the girls would have been
psychologically harmed by testifying. (See Jennifer J., supra, 8 Cal.App.4th at p. 1089.)
As to Daniela, father claims that her CASARC interview does not suggest she was
emotionally affected by his actions and that no witness opined that it would be harmful
for her to testify. In fact, the social worker for this case stated that testifying would be
“extremely detrimental” for Daniela. In addition, Daniela’s CANS assessment reported
that she was having difficulty processing “her feelings and . . . the recent loss of her
father living with the family,” resulting in “what appears to be an indifferent response to
this loss.” She was also exhibiting increased anxiety, including eating more. Taken as a
whole, this evidence was sufficient to support the determination that Daniela would be
traumatized by having to testify.
       As to stepdaughter, father acknowledges that both the first social worker and the
clinician opined that testifying in court would be detrimental to stepdaughter. He argues
that there was nevertheless insufficient evidence of psychological harm because there
was no testimony about that issue by “a physician and surgeon, including a psychiatrist,
or any person described by subdivision (b), (c), or (e) of Section 1010” as required under
section 240. (§ 240, subd. (c).) But as we have said, a child’s testimony may be


                                              12
excluded under Jennifer J. even if the requirements for a finding of unavailability under
section 240 are not met. Father also complains that the social worker’s and clinician’s
statements about stepdaughter were limited to the harm she would experience from
testifying in front of him, but this argument is forfeited because he did not raise the
possibility of in-chambers testimony below. Father offers no other reason these
witnesses’ opinions were insufficient evidence that stepdaughter would be traumatized if
she had to testify in court, and he therefore fails to demonstrate that the exclusion of
stepdaughter’s testimony was erroneous. In sum, we conclude that the juvenile court
properly balanced father’s due process rights against the resulting trauma to the girls to
excuse them from testifying. (See Jennifer J., supra, 8 Cal.App.4th at p. 1089.)
                                            III.
                                        DISPOSITION
       The juvenile court’s July 24, 2017 order is affirmed.




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                                 _________________________
                                 Humes, P.J.




We concur:




_________________________
Margulies, J.




_________________________
Banke, J.




In re Daniela G. A152434


                            14
Trial Court:

       Superior Court of the County of San Francisco



Trial Judge:

       Hon. Susan M. Breall



Counsel for Defendant and Appellant:

       Joseph T. Tavano, First District Appellate Project


Counsel for Plaintiff and Respondent:

       Dennis J. Herrera, City Attorney

       Kimiko Burton, Lead Attorney

       Elizabeth McDonald Muniz, Deputy City Attorney




In re Daniela G. A152434



                                            15
