Filed 10/29/13 In re Autumn I. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re AUTUMN I., a Person Coming Under the
Juvenile Court Law.

KINGS COUNTY HUMAN SERVICES                                                                F065578
AGENCY,
                                                                               (Super. Ct. No. 11JD0078)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
ANGELINA I.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. George L.
Orndoff, Judge.
         Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Colleen Carlson, County Counsel, Bryan Walters and Carrie Wooley, Deputy
County Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
       Angelina I. is the paternal grandmother and legal guardian of Autumn I. (born
March 2004). Angelina appeals from the juvenile court‟s jurisdictional and dispositional
orders declaring Autumn a dependent of the court and removing Autumn from her
custody. Angelina contends: (1) the juvenile court violated her statutory right to counsel
and the error was prejudicial; (2) the juvenile court abused its discretion when it granted
de facto parent status to the maternal grandfather and stepgrandmother; (3) the juvenile
court erred in allowing the de facto parents access to the juvenile court records; and
(4) the juvenile court abused its discretion by accepting a social worker as an expert on
false memory syndrome and the error was prejudicial. We reverse the juvenile court‟s
order allowing the de facto parents access to juvenile court records. In all other respects,
the jurisdictional and dispositional orders are affirmed.
                    FACTUAL AND PROCEDURAL BACKGROUND
A.     Initiation of Dependency Proceedings
       On November 23, 2011, the Kings County Human Services Agency (agency)
received a referral expressing concern that Angelina had mental health problems which
were emotionally harming Autumn, who was then seven years old. The agency
substantiated the referral for general neglect and filed a dependency petition on Autumn‟s
behalf. Autumn was not detained but remained in Angelina‟s custody until the
dispositional hearing in July 2012.
       On March 21, 2012, the agency filed a second amended petition, which alleged
Autumn was at substantial risk of suffering serious emotional damage (Welf. & Inst.
Code, § 300, subd. (c)),1 as a result of being included in Angelina‟s delusions, namely,
that: (1) Autumn was sexually abused by her maternal stepgrandfather; (2) Autumn
sexually abused her younger half sister; and (3) Autumn suffered serious and/or chronic

1       Further statutory references are to the Welfare and Institutions Code unless otherwise
specified.



                                                2.
health problems. The petition further alleged that, as a result of Angelina‟s delusions,
Autumn had false memory syndrome and had been subjected to unnecessary and/or
invasive medical procedures, including but not limited to a sexual assault response team
(SART) examination, further placing her at substantial risk of suffering serious emotional
damage as evidenced by severe anxiety, depression, withdrawal, or untoward aggression
toward self or others.
B.     Contested Jurisdictional Hearing
       1.     Documentary evidence
       The jurisdiction/disposition report and addendum reports reflect that Angelina‟s
allegations of sexual abuse against Autumn‟s maternal stepgrandfather, Steve P., arose
when Autumn was around three years old. At the time, the agency and local police
department investigated the allegations and Autumn underwent a SART examination. At
the conclusion of their investigations, the agency and police found no evidence Steve
engaged in any type of sexual abuse. They also agreed that Autumn had not in fact been
sexually abused.
       Despite the contrary findings of the agency and police department, Angelina has
consistently maintained that Steve sexually abused Autumn and has continued to repeat
this as fact to Autumn and others. In the agency‟s opinion, Angelina‟s behavior has
caused Autumn to suffer false memory syndrome, “a condition in which a person‟s
identity and interpersonal relationships are centered around a traumatic experience which
is objectively false but in which the person strongly believes.”
       Autumn also appears to hold the false belief that she sexually abused her two-
year-old half sister, Riley M. The agency investigated allegations of such abuse in the
summer of 2011 and determined the allegations to be unfounded. During the
investigation, Autumn disclosed a single incident in which she and Riley “touched each
other‟s bottoms while bathing.” Although the agency considered this age-appropriate



                                             3.
behavior, Angelina has continued to insist that Autumn‟s behavior constituted an act of
sexual abuse.
       In addition, Angelina had continued to subject Autumn to “the belief that she
cannot do normal childhood activities because she has scarred lungs and a weak heart due
to her mother‟s neglect and drug use.” Although Autumn‟s mother, Fallon M., does have
a history of drug use, there is no medical evidence to support Angelina‟s claim that it
caused Autumn to suffer these health conditions. However, when medical personnel
have informed Angelina that Autumn is fine, Angelina has continued to express “a litany
of concerns” about Fallon in Autumn‟s presence.
       In February 2012, the agency had David Sine, M.D., review Autumn‟s medical
records. Dr. Sine concluded that Autumn had “mild asthma at best.” Dr. Sine also noted
Autumn had a higher “number of medical encounters” than would be expected for a
healthy child her age. But the evidence was insufficient to find “medical neglect or
fictitious syndrome by proxy” on Angelina‟s part.
       On March 20, 2012, the agency received a lengthy handwritten declaration from
Angelina, attacking the agency, individual social workers, and law enforcement for their
handling of her sexual abuse allegations against Steve. Angelina continued to insist
Autumn was sexually abused and that the SART examination failed to detect this.
Angelina also claimed the dependency allegations were essentially a maneuver aimed at
discrediting her. The agency concluded Angelina‟s declaration was indicative of her
“mental instability and her continued … emotional abuse on Autumn.”
       On March 22, 2012, the agency interviewed Autumn‟s mother, Fallon. Fallon
reported that when she recently questioned Autumn, Autumn denied that she was
sexually abused and claimed she told child protective services (CPS) she had been
touched badly because Angelina told her to. Fallon reported that Autumn told her the
same thing when the allegations against Steve first surfaced. When Fallon confronted
Angelina at that time, Angelina said Steve also abused Fallon when she was a child, but

                                             4.
Fallon just could not remember it. Fallon reported knowing Steve all her life and said he
never touched her inappropriately. Fallon further reported that when she questioned
Autumn, Autumn denied touching Riley inappropriately. Thus, Fallon believed that
Autumn actually knew she was not a victim or perpetrator of sexual abuse despite her
statements to CPS.
       On April 12, 2012, the agency learned that Fallon had recently received a letter
from Angelina alleging Autumn had begun to recall past acts of physical and emotional
abuse by Fallon and Autumn‟s maternal grandmother, Tonya O. (Steve P.‟s wife).
Angelina attached a copy of the letter to a declaration she filed with the court on April 16,
2012. According to Angelina‟s letter, Autumn told her that she recalled Fallon and
Tonya trying to kill her in various ways, including by putting “poop” and “pee” in her
food. Autumn also recalled that Fallon called her a “nigger” and said she had wanted
“blonde kids.” Autumn further recalled that Fallon cut her palms, legs, and forearms
with a pocketknife while Tonya placed a “death chant” on her.
        After assessing Angelina‟s letter, the agency determined the allegations met the
criteria for a CPS referral. Social service practitioner Delia Acosta-Perez was assigned to
investigate the referral and conducted a forensic interview of Autumn on April 18, 2012.
During the interview, Autumn indicated she was between the ages of three and five when
the alleged incidents of abuse occurred. Autumn made statements confirming some but
not all of the allegations in Angelina‟s letter.
       Acosta-Perez concluded she “[could] not find the allegation of general neglect to
be true,” observing “it was clearly apparent that the child was most likely coached by
[Angelina].” Acosta-Perez noted that when the interview ended, Autumn ran to
Angelina, who was in another room, and whispered in her ear, “I told her.” Angelina
responded by hugging her and saying, “Good, I‟m glad you told her.” It appeared to
Acosta-Perez that Angelina was rewarding Autumn “for making the disclosures as if it
was deliberately planned.”

                                               5.
       Moreover, Autumn told Acosta-Perez she remembered all of the incidents of abuse
three days prior to the April 18, 2012 interview, but Angelina‟s letter detailing the
incidents was dated April 5, 2012.
       2.     Testimony of social worker Sai Mouanoutoua
       The contested jurisdictional hearing was conducted over four days between
April 19 and May 17, 2012. The agency‟s witnesses testified about the foregoing
incidents and other information contained in reports received by the juvenile court. We
do not repeat testimony that is duplicative of information already set forth above or not
directly pertinent to the issues on appeal.
       Sai Mouanoutoua, the social worker assigned to investigate the referral underlying
the current dependency proceedings, described in her testimony how Angelina
embellished conditions and events during the course of the agency‟s involvement. For
example, when Angelina interacted with professionals, Angelina openly explained in
front of Autumn that Autumn was a victim of sexual abuse and a perpetrator of incest.
Angelina described Autumn‟s touching of her half sister‟s bottom as “rape” to social
worker Monica Chancey and to the maternal stepgrandmother, Francine M.2
       During Autumn‟s therapy sessions, Angelina told the therapist that Autumn had
been sexually abused. Autumn, however, never mentioned this to the therapist. The only
mention of sexual abuse came from Angelina. Angelina also told the therapist that
Autumn had molested another child and committed incest. And when the allegations
against Steve first surfaced, Angelina stated that Autumn had herpes on her vaginal area
and therefore had been raped. Angelina continued to insist Autumn had herpes, even
after the doctor determined it was only a bacterial infection.
       In Mouanoutoua‟s opinion, Angelina‟s tendency to embellish presented a risk of
harm to Autumn. One such risk was that it had caused Autumn to suffer false memory

2      Angelina testified she never told Francine or Chancey that Autumn “raped” Riley.



                                              6.
syndrome, which is “when an individual believes that an event occurred objectively in
their life; however, there has been no factual foundation [on which] to base their belief.”
False memory syndrome is harmful because it causes the child to isolate herself, which is
something Autumn had already started doing, and affects the “functionality” of the
child‟s relationships.
       In assessing whether a child has false memory syndrome, Mouanoutoua testified
she would start by assessing whether the child exhibited typical symptoms of child sexual
abuse. Such symptoms include low self-esteem, poor appetite, withdrawal, depression,
and sexual behavior not typical of the child‟s age. When Autumn was interviewed, she
never displayed any of these symptoms.
       Another circumstance that was consistent with false memory syndrome was that
Autumn‟s version of the alleged molestation evolved over time. When Autumn was
seven years old, she told an investigator that she had been molested by Steve. When the
investigator asked her how she knew that had happened, she answered, “Because my
grandma said.” Then, when Autumn was eight years old, she explained to Mouanoutoua
she knew about the molestation because she had been there. Autumn also said she knew
it was bad and that she escaped it by jumping a fence and hiding under a bed.
       It is not typical for an eight-year-old child to be able to recall an experience that
occurred when she was two or three years old, which was Autumn‟s age when the sexual
abuse allegedly occurred. Additionally, a typical child that age does not have the
capacity to recognize whether a touching is bad or not, or have the sense that it is
something that needs to be escaped from. Nor would a child that age likely have the
physical capacity to jump over a fence.
       Autumn was now at an age that she was susceptible to information. And because
she had been informed that she was the victim of sexual abuse, she was creating facts to
fill in her factual gaps. Over the years, Autumn‟s understanding of events and her
statements describing them had progressed as she filled in the facts. In Mouanoutoua‟s

                                              7.
opinion, Angelina was planting false memories into Autumn‟s mind and Autumn was
creating a factual background for them. She believed Autumn had never been sexually
abused but instead was exhibiting signs of false memory syndrome.
      Mouanoutoua also believed that Angelina‟s embellishment created a risk of harm
to Autumn in that she was constantly sick and missing school, thereby losing the
opportunity to socialize. Angelina also insisted that Autumn not play with a particular
child at school, even though Autumn sought out that child for play.
      Mouanoutoua had visited Angelina‟s home four or five times since October 2011,
when she became Autumn‟s social worker. Each time, the house was clean, neat, and
appropriate. Autumn seemed happy and at ease. She seemed comfortable in the home
and maintained close proximity to Angelina. However, Mouanoutoua sometimes thought
Angelina had coached Autumn. For example, when Autumn invited Mouanoutoua into
her playroom, she twirled around with her arms spread open and said, “Look how many
toys I have. My grandmother loves me so much. I have so many toys.” Mouanoutoua
believed that Autumn understood the agency‟s procedure and what to say and how to
behave.
      3.     Testimony of police officer John Bidegaray
      John Bidegaray is a police officer who investigated Angelina‟s original allegations
of sexual abuse against Steve. In June 2007, Bidegaray was dispatched to the hospital in
response to a call by Angelina reporting she had found blood in Autumn‟s urine. He
arranged for a SART examination. No evidence of sexual abuse was found.
      A few weeks later, Bidegaray was dispatched to the agency‟s office because
Angelina was again reporting that she believed Steve might have molested Autumn. The
officer spoke to Autumn for about 30 minutes, and she did not even hint at being
inappropriately touched or molested by Steve. In fact, she said she liked both him and
Tonya O. Autumn was in good spirits and said she had no problems. Bidegaray then
spoke to Angelina, who explained that Autumn never mentioned being touched

                                            8.
inappropriately, but came home from Steve‟s home smelling like “man sweat,” so
Angelina thought Steve might have done something inappropriate. After speaking to
Autumn, Angelina, and Steve, Bidegaray found no evidence that a crime had occurred
and concluded Angelina‟s allegation was unfounded.
       Over the years, Bidegaray had other contacts with Angelina‟s family, usually
regarding Angelina or her son, Kevin I. (Autumn‟s father). Angelina would call and
report that her son was suicidal, but when the officer would contact him, he would
explain that Angelina had mental problems and overreacted to everything.
       4.     Testimony of social worker Monica Chancey
       In June 2011, when Autumn was seven years old and her half sister, Riley, was
about three years old, Lupe M., Riley‟s paternal grandmother and guardian, told Angelina
that Autumn had inappropriately touched Riley. Angelina and Lupe went to the agency
with the children. Monica Chancey brought them into her office and told them she was
the assigned social worker but it was not the agency‟s policy to interview Autumn at that
point. Chancey explained that they tried to interview children in a manner conducive to
protecting the integrity of any disclosures they made. The more people to whom the
children disclosed their story, the more the disclosures would change.
       But after Chancey‟s explanation, Angelina continued to talk about the allegations
and the past history of sexual abuse right in front of Autumn. Autumn sat with her head
bowed, looking down. Chancey was very uncomfortable and wanted to stop the ongoing
dialogue in Autumn‟s presence. Chancey held up her hand and said, “You know, we
need to stop this because this is not appropriate.” She said several times, “[Angelina], it
is not appropriate for you to be making these kinds of comments in front of [Autumn].”
Angelina did not seem able to understand why that was not appropriate.
       Chancey took Autumn into another room to speak to her. Chancey asked Autumn,
“Do you know why you‟re here?” Autumn said she knew she was there to talk about
Steve P. (identifying him by both his first and last name). Chancey asked, “Well, why

                                             9.
am I going to interview you about Steve [P.]?” Autumn said it was because he had
sexually abused her. Chancey asked her how she knew that, and she answered,
“[b]ecause my grandma told me.” Autumn had no recollection of any abuse other than
what Angelina had told her.
       Chancey then returned to speak to Angelina. She told Angelina that Autumn had
not disclosed any abuse and that she would follow up with them later that week.
Chancey told her if Autumn was a victim of sexual abuse, it was critically important that
Autumn‟s disclosure remain intact and its integrity maintained so that the disclosure
came from Autumn not from information from her grandmother because that would not
hold up in court. Angelina became very upset and told Chancey that she had an attorney
and he told her the agency had failed to follow their legal mandate and they were all
going to be in trouble for allowing Autumn to be sexually abused. Angelina said she
went to great expense to hire Ronald Calhoun as her attorney.3 Chancey looked at the
family‟s referrals and told Angelina the allegations had been investigated and determined
to be unfounded because no evidence supported them.
       Angelina became more and more agitated and upset. She told Chancey that
Autumn‟s maternal grandfather and stepgrandmother, Frank and Francine M., exposed
Autumn to “profane movies.” As they continued to speak, Angelina got very upset, so
she stood up, walked out, slammed the door, and left. After an awkward silence, Lupe,
who remained seated in the room, apologized for Angelina‟s behavior, explaining that
she “means well but … tends to become agitated and highly excited … [and] in her love
for Autumn she tends to become somewhat overly demonstrative.” Lupe admitted she


3       Angelina testified that the first time she went to Mr. Calhoun‟s office was on
December 7, 2011, when she asked him to be an advocate for Autumn, and that when she met
Chancey in June 2011, she had not yet been in contact with his office. As discussed in more
detail below in part I of the Discussion, Mr. Calhoun acted as Autumn‟s attorney during the
dependency proceedings and Angelina represented herself.



                                             10.
did not always do things the way Angelina did them, but it was better to have Angelina
on her side. She was concerned that Angelina continually filed things in family court,
and she was going along with it because she did not want Angelina to disrupt her own
guardianship over Riley.
       Chancey interviewed Autumn two more times. Autumn stated that Steve P. had
molested her. Chancey asked her what she meant and how she knew this. Autumn
consistently replied that she knew these things because her grandmother had told her.
She never was able to describe any touching or other conduct that would constitute
molestation. She disclosed not what she recalled but what Angelina had told her.
       On another occasion, Angelina informed Chancey that she (Angelina) had been a
victim of sexual abuse. At one point, she called Chancey and angrily complained about
the maternal family and reiterated her allegations of sexual abuse. She asked Chancey
pointblank if she had ever been sexually abused. Chancey advised her that this was a
completely inappropriate question to ask anyone, much less the investigating social
worker, because it was a very private and personal subject. Angelina responded that this
was the reason Chancey did not recognize that Autumn was a victim of sexual abuse and
that she, on the other hand, could discern this because of her own history. Without that
history, a person could not recognize it.
       According to Chancey, these incidents demonstrated Angelina‟s inability to
recognize appropriate boundaries and refrain from inappropriate behavior. Angelina also
did not understand it was inappropriate to make comments in front of Autumn, despite
Chancey‟s explanations and warnings.
       On one occasion, Angelina witnessed a custody exchange of the two children
(Autumn and Riley) from Angelina and Lupe to Frank and Francine. Lupe was
interacting with Frank and Francine, but Angelina stood off to the side with her arms
crossed over her chest. The two children got into the car. As the car started to drive
away, Angelina followed it, clutching her chest with her hand and calling after Autumn,

                                            11.
as if she would never see her again, even though she was going to see her in two days. It
was overly demonstrative behavior that was in keeping with Angelina‟s attitudes.
      5.     Testimony of Autumn’s maternal stepgrandmother, Francine M.
      In her testimony, Francine indicated she and her husband Frank had an
acrimonious relationship with Angelina, with a history of accusations. Frank and
Francine were granted visitation of Autumn in October 2010 (around the time Angelina
became Autumn‟s guardian). After that, Angelina sent them about 32 text messages, one
of which stated that she was going to take Autumn to San Luis Obispo. Autumn had
already missed many of her scheduled visits with them, so they became worried that
Angelina was going to take Autumn out of the county. In February 2011, Frank and
Francine petitioned for and were granted more extensive visitation to include the second
and fourth weekend of every month. But on June 8, 2011, four days before their next
scheduled visit, Angelina left a voice message in a panicked state, saying that her mother
was ill and she had to leave for San Luis Obispo. Frank and Francine attempted to
contact Angelina but got only a message. Autumn then missed the visit. Frank and
Francine feared Angelina had taken Autumn permanently, so they contacted the police
and filed a report. They did not request that an “Amber Alert” be issued. They continued
trying to contact Angelina for their scheduled telephone calls with Autumn. After getting
no response, they contacted the police a second time. Angelina ultimately returned and
Autumn visited with Frank and Francine.
      During some of those more recent visits during the year prior to the hearing,
Francine noticed that Autumn had begun to wet her pants. At first, Francine thought
Autumn was merely distracted or forgetful, so Francine encouraged her to stop playing
and use the bathroom. But then the wetting started to occur at night too. Shortly
thereafter, Frank and Francine received a two-page letter from Angelina stating that
Autumn had come home and reported that Francine had not allowed her to go to the
bathroom, which was not true. The letter also stated that Angelina knew Autumn had a

                                           12.
bladder problem and she was having problems in Angelina‟s home as well. Angelina
explained that Autumn had small kidneys and a small bladder. The wetting was still
occurring with the same severity at the time of the jurisdictional hearing.
       When Autumn came to visit Frank and Francine, she came with four or five
different asthma medications, although she never had asthma attacks during her visits.
Francine did not know if Autumn actually had asthma.
       6.     Testimony of Riley’s paternal grandmother and guardian, Lupe M.
       Lupe testified on Angelina‟s behalf that she and Angelina went to the agency not
because of Angelina, but because she had concerns, explaining Riley‟s perineum was
always irritated when she returned from visiting Frank and Francine. After a bath, Riley
yelled, “No. No. No. No, don‟t touch me. Don‟t touch me there. Don‟t smell my butt.”
Riley said, “[Autumn] smells my butt and she touches me.” Lupe suspected that the two
children were engaging in inappropriate touching when they went to visit Frank and
Francine. Lupe called Angelina and they went to the agency. They were called back to
see Chancey, and when she opened the door, she seemed surprised to see Angelina there.
She said, “Did you know that there was an Amber Alert out on you?” After Angelina
stormed out of the office and slammed the door, Lupe was stunned by what was
happening. Chancey told her, “By golly if it‟s the last thing I do I‟m taking that child
from her.”4
       Lupe agreed that she did not want trouble with Angelina so she generally went
along with whatever she said.
       7.     The juvenile court’s ruling
       At the conclusion of the jurisdictional hearing, the juvenile court found the
allegations of the second amended petition to be true and found that Autumn came within
section 300, subdivision (c). The court then expressed a preference for conducting the

4      Chancey denied making these statements.


                                            13.
dispositional hearing in a few weeks rather than the same day as the jurisdictional
hearing, explaining: “I think since it was an emotional case and I‟m sure everyone has
had an emotional reaction to the decision … I think it‟s probably better we all calm down
for a couple weeks and put our best thinking … into what‟s in the best interest of
Autumn.”
C.     Contested Dispositional Hearing
       1.     Documentary evidence
       In an addendum report filed on June 7, 2012, social worker Mouanoutoua reported
that, while the agency‟s original disposition report recommended family maintenance
services for Angelina, in light of new and developing information, the agency now
recommended family reunification services be provided to Angelina and Fallon.
       In Mouanoutoua‟s opinion, Autumn had suffered or was at substantial risk of
suffering severe emotional harm should she remain in Angelina‟s care, noting Autumn
was “in an environment where she is surrounded with misinformation, humiliation,
corruption and isolation.” In support of her opinion, Mouanoutoua set forth a number of
examples which she also testified to at the dispositional hearing and are described in
more detail in the summary of her testimony below. She also cited to a number of
academic articles in rendering her opinion.
       Regarding her opinion that Autumn was suffering emotional harm, Mouanoutoua
acknowledged that “[a] few may argue that despite Autumn‟s emotionally distressing
environment, Autumn is doing well as evidenced by her good grades and lack of
behavioral problems.” The same individuals “may also argue that Autumn self reports
that she is happy and well in [Angelina‟s] care.” However, because young children have
difficulty reporting their internal states, professionals have to rely on observations.
Despite Autumn‟s good grades and positive self reports, she has exhibited a number of
concerning behaviors resulting from Angelina‟s emotional abuse.



                                              14.
       Although Autumn reported feeling “good,” her therapist noted that Autumn‟s
statements were contradicted by her behaviors. Autumn often complained of stomach
pain and headaches, which caused her to frequently miss school. These physical
symptoms appeared to reflect “somatization of her depression and anxiety.”
Mouanoutoua explained: “Somatic symptoms occur when individuals relate their moods
and stress to physical pain, such as headaches or stomach pains (American Psychiatric
Association, 2000). Children often experience somatic symptoms because they have no
understanding of mental health concepts.” Therefore, while Autumn might report that
she feels good and happy, she somatizes her anxiety and depression through experiences
of physical pain.
       Mouanoutoua also reported speaking to Angelina about Autumn‟s wetting
accidents. Angelina acknowledged that Autumn would have accidents one or two times a
month. She did not feel Autumn had a problem with enuresis and said the accidents were
due to Autumn playing and forgetting to go to the bathroom. Angelina felt the wetting
accidents were “normal” and said she would have taken Autumn to an urologist if she
was having either frequent or irregular accidents. Angelina expressed the belief that
Francine “committed perjury” at the jurisdictional hearing. Angelina explained that when
she asked Autumn about the statements Francine made in court, Autumn denied having
wetting accidents in Frank and Francine‟s residence and said it was Riley who was
having the accidents.
       Mouanoutoua reminded Angelina she was not to discuss the dependency
proceedings with Autumn. Angelina responded that Mouanoutoua was “also guilty”
because the social worker had questioned Autumn about urination issues. Mouanoutoua
attempted to explain that she questioned Autumn in a nonsuggestive way, while Angelina
told Autumn about the information provided by Francine. Angelina interjected that she
questioned Autumn in a calm manner and did not hurt Autumn in any way. Angelina
then turned to Mr. Calhoun, who was present at the meeting, and asked, “You would tell

                                           15.
me if I violated any laws, right?” Mr. Calhoun responded by nodding his head.
Mouanoutoua reiterated that Angelina could not discuss the case with Autumn, and
reminded her to be conscientious about how she questioned Autumn. Angelina said she
understood and said she had not discussed the case with Autumn.
      On May 21, 2012, Mouanoutoua spoke with Dr. Mary Sanders, a psychologist and
professor at the Stanford School of Medicine, who reviewed the records in this case and
provided her expert opinion. Mouanoutoua reported that Dr. Sanders told her there were
“some indicator[s] of delusional process and exaggerated statements by [Angelina]” and
“also indicators that [Angelina] falsifies information.” But Angelina would have to be
formally evaluated to determine whether she had “Munchausen by Proxy,
delusional/psychotic personality or a factious syndrome.” Mouanoutoua noted that Dr.
Sanders emphasized the need for Angelina to be evaluated.
      When asked whether she felt Autumn was in danger and should be removed from
Angelina‟s home, Dr. Sanders stated “in some cases, short removal would be beneficial
because it cuts through denial between the care provider and the child.” Dr. Sanders felt
it was important to place Autumn in a loving and nurturing home to prevent further
damage. Dr. Sanders did not know whether Autumn suffered from false memory
syndrome or was just lying and manipulating because it was her coping mechanism to get
along with Angelina. Therefore, she recommended that Autumn also undergo a formal
evaluation by an experienced psychologist.
      In an addendum report filed June 15, 2012, Mouanoutoua reported that Frank
made an unannounced visit to her office on June 7, 2012. Frank said he received a
voicemail from Angelina stating she was taking Autumn out of school because Autumn
“prematurely started her period.” Angelina said Autumn‟s breasts were “budding” and
she was going to have Autumn go through a “battery of tests.” Frank expressed concern
that Angelina was subjecting Autumn to unnecessary tests again. He also stated that
when he saw Autumn the previous weekend, he did not notice “budding breasts.”

                                             16.
       At Frank‟s request, Mouanoutoua listened to Angelina‟s voicemail. She heard
Angelina say that Autumn started her period at school and had a doctor‟s appointment the
next morning at 9:00 a.m. Angelina said Autumn was “cramping,” had a “sore stomach,”
and was in “a lot of pain.” Angelina stated that doctors would conduct a “battery of
tests” to see if they could stop what Autumn was going through. Angelina also said
Autumn would not be visiting Frank‟s family that weekend.
       Frank and Francine later confirmed that Autumn did attend her scheduled visit on
June 8, 2012, during which time they did not observe any signs that Autumn had started
her menstrual period. Autumn was playful and active during the visit. According to
Francine, Angelina told them she took Autumn to the doctor prior to the visitation
exchange and that Autumn only had a rash due to taking too many bubble baths. Frank
interjected that Angelina instructed them not to allow Autumn to soak in water and gave
them Neosporin to help with the rash. Subsequently, Mouanoutoua obtained a copy of
the doctor‟s notes confirming that Autumn had been diagnosed only with a rash and the
doctor had recommended Neosporin for treatment. The doctor‟s notes further reflected
that Autumn‟s urinanalysis returned normal and no blood was noted.
       On June 8, 2012. Mouanoutoua received a fax from Francine stating she had
received “disturbing” text messages from Angelina. The original text messages were
later retrieved from Francine‟s phone. Mouanoutoua noted that she counted over
40 messages sent from Angelina to Francine, and four messages sent from Francine to
Angelina. The messages began with Angelina stating that Autumn had prematurely
started her period and would not be able to visit. Angelina then “[went] on to reference
Mr. Calhoun and law suits” when Francine expressed determination that Autumn attend
her scheduled visit. Towards the end of Angelina‟s messages, she changed the topic and
alleged that Autumn witnessed Steve molest other children and that Steve killed a little
boy and “cut [the boy‟s] peepe.” Angelina further stated that Autumn loved Jesus and



                                           17.
would not lie for Steve anymore, that Autumn wanted Steve in prison so he would not
hurt kids anymore, and that Steve was dangerous and a murderer.
       On June 21, 2012, Frank came to Mouanoutoua‟s office and reported that on
June 18, 2012, he received text messages from Angelina “ranting” and claiming he was
using scare tactics on Autumn. Frank did not know what prompted Angelina to send this
new series of text messages. In her text messages to Frank, Angelina repeatedly used the
acronym “P.O.W.” in reference to his alleged tactics to break Autumn down emotionally.
She also accused Frank, Francine, CPS, and social worker Chancey of being “[l]iars.”
Angelina further charged that if anyone was insane it was Frank and Francine, and that
Frank was the one who embellished. Angelina also accused Frank of being back on
heroin, and claimed she knew someone who saw him shooting up in his car.
      2.     Testimony of social worker Mouanoutoua
      The dispositional hearing took place on July 12 and 19, 2012. Mouanoutoua
recommended removal of Autumn from Angelina‟s home because she believed Autumn
was suffering severe emotional harm and the only way to prevent further harm was to
remove her. Mouanoutoua believed Autumn was suffering severe anxiety, emotional
withdrawal, and aggression toward others.
      Autumn exhibited mood swings, indicating she was suffering severe anxiety. For
example, when Mouanoutoua first made contact with Autumn at the school office to
interview her in December 2011, Autumn started crying when she saw Mouanoutoua.
Autumn walked to the front desk and grabbed the telephone. A school employee asked
Autumn what she was doing and she said she needed to call someone. The employee
prevented her from making the call and told her she needed to talk to Mouanoutoua
before making a call. Autumn pulled out a business card and told Mouanoutoua it was
Mr. Calhoun, her attorney. She said she could not speak to Mouanoutoua unless
Mouanoutoua got permission from Mr. Calhoun. Autumn hunched and backed away,
then started crying loudly and made a scene in the office. Mouanoutoua believed

                                            18.
Autumn had been instructed not to speak with her. The school personnel could not
console Autumn and she did not stop crying until Mouanoutoua assured her she did not
have to speak with her and she was not going to get in trouble. At that point, Autumn
calmed down and started telling Mouanoutoua about her guinea pig.
       On another occasion when Mouanoutoua visited Autumn at home, Autumn
greeted her with a smile and asked if Mouanoutoua would like to see her playroom. But
when Mr. Calhoun arrived to discuss the case, Autumn‟s demeanor toward Mouanoutoua
changed. Autumn pointed at Mouanoutoua, called her mean, and told her she did not
want to talk to her.
       School officials told Mouanoutoua that Autumn would behave badly when she
learned that Angelina would be informed of something that happened at school. She
would cry and complain because she was afraid of how Angelina would react.
       Autumn also manifested anxiety outside of the school setting. She regressed back
to chronic thumb sucking and began showing symptoms of enuresis. Mouanoutoua
explained that by the age of five, children are less likely to have wetting accidents
because developmentally they are at a point where they can control their bodily impulses.
Autumn‟s maternal grandparents reported that they just started noticing the wetting
accidents in May 2011. School officials also reported that Autumn had two wetting
accidents at school between August and December 2011.
       In Mouanoutoua‟s opinion, as Autumn was pulled between Angelina and her
maternal grandfather and stepgrandmother, Autumn developed anxiety because she was
required to make statements that pleased each side, creating an emotional conflict.
People had also talked to her about the facts of the case, exacerbating her emotional harm
and adding to her stress.
       In addition to anxiety, Autumn exhibited emotional withdrawal, evidenced by an
inconsistency between her behavior and her statements. Autumn had not disclosed any
sexual abuse to her therapist, but Angelina projected her own experience as a victim of

                                             19.
sexual abuse onto Autumn, even pressuring her to “tell the truth” when she did not
disclose anything. When this occurred, Autumn became mute and coy, regressing
herself. The therapist later asked Autumn about this incident and she denied being
affected by it. She would often report that she was happy and great. She avoided
difficult discussions and personal questions. In general, her behavior did not reflect her
emotions. She always reported being fine, happy, and great, regardless of the situation.
She did not deal with her emotions appropriately.
       Autumn exhibited aggression toward others with blatant lying and stealing. She
used these pathological methods as coping mechanisms to survive in her environment.
She knew she would be found out, but she was unconcerned about the consequences. For
example, she accused her half sister of being the one with a wetting problem, and she
stole things from relatives.
       Another reason removal was necessary was that Angelina had been resistant to the
agency, consistently denying that anything the social workers said was true. She
portrayed the agency as making everything up to go after her. Angelina had shown no
interest in dealing with the issues in this case. The agency had attempted to engage
Angelina in services to keep Autumn safely in the home, but Angelina was in denial.
Although there was absolutely no evidence that Autumn was ever sexually abused,
Angelina refused to consider the possibility that it had not happened. And since the
hearings had begun, Angelina had reported that Autumn was now a victim of satanic
rituals and death chants at her mother‟s hands. Autumn herself stated that her mother and
maternal grandmother wanted to kill her, and they had cut her all over her body with a
pocketknife. Physical examination, however, revealed no scars anywhere on her body.
Angelina had also stated that Autumn witnessed the maternal stepgrandfather murder
other children and cut off a boy‟s penis, and that Autumn had tried to help these children
escape from the maternal stepgrandfather, who then buried the children in his backyard.



                                            20.
       Mouanoutoua did not believe family maintenance was a reasonable means of
protecting Autumn. No services could ameliorate the emotional harm to Autumn.
Despite the lack of any evidence, Angelina was insisting to Autumn that she was a victim
and a perpetrator of sexual abuse and a victim of satanic rituals. She was at risk for
severe depression, which often leads to chronic drug use, school dropout, sexual
behavior, and criminal behavior. She was already exhibiting pathological behaviors. She
needed the opportunity to heal emotionally.
       3.     The Juvenile Court’s Ruling
       At the conclusion of the hearing, the juvenile court adopted the agency‟s
recommendations, finding clear and convincing evidence that continuing Autumn in
Angelina‟s home was contrary to Autumn‟s welfare. The court found Autumn was
suffering severe emotional damage as indicated by extreme anxiety, depression,
withdrawal, untoward aggressive behavior toward self and others, and there were no
means by which her health could be protected without removing her from the physical
custody of Angelina. The court ordered Autumn removed from Angelina‟s custody and
placed under the agency‟s supervision and ordered the agency to determine a suitable
placement for her. The court ordered reunification services and supervised visitation for
both Angelina and Fallon.

                                      DISCUSSION
I.     Right to Counsel
       Angelina contends that although she asserted her right to represent herself, she
was deprived of her statutory right to counsel. The agency concedes the juvenile court
failed to properly advise Angelina of her right to counsel at every hearing and failed to
take an effective waiver of her right to counsel, but the agency maintains that the error
was harmless. We agree with the agency and conclude Angelina has failed to demonstrate




                                            21.
a reasonable probability the outcome of the proceedings would have been more favorable
to her had she been represented by counsel.
      A.      Background
      At an arraignment hearing on January 5, 2012, Deputy County Counsel Bryan
Walters questioned the propriety of Mr. Calhoun representing Autumn and objected to
the appointment of counsel for Angelina. The issues raised by Mr. Walters are reflected
in the following excerpts from the hearing:

             “MR. WALTERS: Well, your Honor, there‟s going to be an issue as
      to whether the person who is the alleged perpetrator is allowed to retain an
      attorney to represent the alleged victim in the case. And so [minor‟s
      advocate Pat] Belter is available. Mr. Calhoun is claiming he represents the
      minor, but I think that‟s something the Court needs to inquire into.
      [¶] … [¶]

              “Your Honor, before [counsel for Angelina is appointed], I would
      like to raise an objection. There‟s clearly a funding crisis in California and
      I somewhat question the propriety of the Court using court-appointed
      counsel to represent the guardian, who has paid money, apparently, to have
      Mr. Calhoun here to represent the minor. I do not think that is proper.

            “MR. CALHOUN: It‟s none of his business what my retainer is,
      your Honor. [¶] … [¶]

              “MR. WALTERS: And, your Honor, I do think it‟s the Court‟s
      business whether public funds are being used to appoint an attorney and I
      think I do have standing.

              “THE COURT: I certainly agree with you. [¶] … [¶]

             “Angelina [I.] is present and we have a question as to who‟s going to
      represent her interests.

              “And, [Angelina], have you hired an attorney to assist you with your
      case?

            “[ANGELINA]: I have contacted Ron Calhoun to represent her as
      an advocate.




                                              22.
      “THE COURT: As far as your interests are concerned, that‟s what
I‟m asking about. Not the child‟s, but yours.

       “[ANGELINA]: No, not for me.

      “THE COURT: And, Mr. Calhoun, where do you come into this as
to who has retained you, if anyone, to represent whom?

       “MR. CALHOUN: I represent Autumn.

       “THE COURT: And has Autumn retained you?

       “MR. CALHOUN: Yes. [¶] … [¶]

       “THE COURT: Do you have a written representation agreement?

       “MR. CALHOUN: No.

       “THE COURT: I thought the current bar rules kind of required to
get some kind of written [agreement]. [¶] … [¶]

        “I have another issue I haven‟t resolved yet and that‟s the ability of a
seven-year-old child to retain an attorney. And I have some real concerns
about that. And, probably, I need to inquire of the child about where she
got the money and that sort of thing. Because, obviously, I don‟t want
Mr. Calhoun to be in a conflict of interest situation where one side is
paying and another side is supposed to be represent[ed]. Their interests
may not be the same thing. I don‟t want to do that to Mr. Calhoun. So I
think I have to conduct some kind of inquiry about that. [¶] … [¶]

      “MR. CALHOUN: To cut to the chase, your Honor, we all know
who‟s paying for this. It‟s [Angelina]. Obviously, the child is not cutting
me a check or anything like that.

       “THE COURT: Then, the next logical question is if [Angelina] can
afford to hire an attorney for the child, can she afford to hire an attorney for
herself because she‟s apparently asking for a court-appointed attorney. If
she has the ability, she should hire one herself, the attorney of her choice
instead of the one I pick because she probably would get along better with
the one she picks.

       “MR. CALHOUN: I‟m receiving the same amount that a court-
appointed attorney would receive in this issue. And I‟m not sure about her
finances other than that.



                                      23.
              “[ANGELINA]: I am currently on SSI and social security.

              “THE COURT: And she understands that if I appoint an attorney
       for her, she‟s probably going to have to reimburse the Court for the cost of
       the court-appointed attorney, so she would be paying two attorneys.

              “Do you understand that, ma‟am?

            “[ANGELINA]: I don‟t know the laws regarding that, but
       however—

              “THE COURT: No free lunch.

              “[ANGELINA]: I‟m not expecting one.

              “THE COURT: I think we need to do what we can today. And I
       need to have the child appear in court so I can do an inquiry into her best
       interests and wishes, as far as Mr. Calhoun being her attorney.… If I find
       he can represent the child because that‟s what the child wants and can
       afford him and that sort of thing, then, we have to worry about this potential
       conflict of interest. And this is for your benefit that, apparently, the
       guardian claimed at one point you represented her and it could create a
       conflict from your standpoint.

              “MR. CALHOUN: That‟s according to the individual who
       interviewed her.

              “THE COURT: I didn‟t say it was true. That‟s what I‟m getting at.

              “I think probably for today‟s purposes we can do part of the
       arraignment and we‟re going to have to continue it and have the child
       produced. I don‟t know any other way to do it.”
       At the beginning of the continued hearing on January 9, 2012, Mr. Calhoun stated:
“I would like to point out that I am pro bono in representing [Autumn]. I never received
a dime from [Angelina] so I think that possible conflict is no longer before the court.”
The juvenile court responded that it still had an obligation to determine if this was what
Autumn wanted.
       The juvenile court then spoke to Autumn in chambers. Afterwards, the court
reported on their conversation and discussed Mr. Calhoun‟s ability to represent her as
follows:


                                            24.
        “THE COURT: [W]e talked about Mr. Calhoun and she was very
clear that she liked Mr. Calhoun, and she did talk to him in [his] office, and
that it wasn‟t just the two of … them, and that that was her attorney. And I
asked her what he was her attorney for, and she said this Court, and so I
realize she is seven years old but that‟s the best answer I am going to get.
And so as the Court is aware she is pretty sure that she wants Mr. Calhoun
to be her lawyer.

       “Mr. Calhoun has indicated that he is doing this pro bono, and I have
inferred from that that he is not accepting any money from anyone else.
And I just want to again … caution Mr. Calhoun that it‟s laden with a lot of
professional pit falls, so I am not sure that you want to do that, but if you
really want to do it .… [¶] … [¶]

        “MR. WALTERS: If the Court is going to allow Mr. Calhoun to
represent the minor in these proceedings then I would like to have an
assurance he will be representing the best interest of the minor, and not
telling the child not to answer questions or things that are going to shut
down the investigation. I don‟t have any reason to know how he is going to
do this, but that‟s what my client has been concerned about is that he views
this essentially from the guardian‟s side of the case, and I think the child
deserves neutral representation. If he‟ll assure the Court that he‟ll do this
…, I‟ll accept his word.

       “THE COURT: Mr. Calhoun, do you wish to comment on that?

       “MR. CALHOUN: I‟ll assure the Court that I‟ll represent her
interest to the best of my capacity.

        “THE COURT: In any investigation a lot of what she has to say is
really going to be important. So for her not to talk to the social worker is
going to be—I don‟t know how it could be in her best interest. Now, as to
what the questions are going to be and such, I have no idea about that, but
the Child Protective Services is charged with the duty to protect the interest
of the children and prevent them from being harmed through either abuse or
neglect or things like that. And I have no idea what even may be the
accusations … in this case. It‟s just I‟m going to get the investigation done.
Probably CPS needs to talk to Autumn, and see what she has to say.

        “I am going to allow Mr. Calhoun to represent Autumn. And at this
point I don‟t have anything that would disqualify him from representing
her. That may change in the future, but for now I am going to allow him to
be attorney for the child.”



                                     25.
      The juvenile court then asked Angelina if she had been able to hire an attorney.
This exchange followed:

              “[ANGELINA]: Well, I made a decision, your Honor, that I would
      like to have an attorney appointed to represent me.

             “THE COURT: And I made a decision that since you could,
      apparently the other day, afford to hire Mr. Calhoun for your granddaughter
      that you can afford to hire one for yourself.

              “[ANGELINA]: I, at this time, because I am on SSI social security,
      I cannot afford it, and he is doing it pro bono at this time. I cannot afford it
      at this time.

              “THE COURT: I‟ll need for you to fill out a financial form that
      talks about where your money comes from and where it goes.

             “I have one here filed January 6th for Angelina [I.]

             “[ANGELINA]: I fil[l]ed it out at the clerk‟s office. [¶] … [¶]

             “THE COURT: … Somehow I‟m missing something on the
      addition [on] the [form and the new] law here. I have monthly expenses
      that don‟t add up with [Angelina‟s] total the way I add them up. There‟s a
      couple of [hundred dollars] difference so…

             “[Angelina], I am not sure how to deal with this because there is a
      new law about having people fill out financial disclosure forms, but I
      question your addition.

             “[ANGELINA]: Well, I know. I question mine sometimes too.

             “THE COURT: I am going to find that you can hire your own
      attorney. [¶] … [¶]

             “Okay, I am going to need to put the matter over for [Angelina] to
      hire an attorney since she doesn‟t know any. There are a lot of attorneys in
      Kings County.

             “[ANGELINA]: Yeah, but I also at this time have been taking care
      of Junior and I don‟t have that kind of money.




                                            26.
             “THE COURT: You are going to have to try, ma‟am, because your
       numbers don‟t add up. Based on what you have on here you make $100
       more than you thought you did.”
       At the next hearing on January 17, 2012, Angelina described to the juvenile court
her unsuccessful attempts to hire an attorney. The court then stated it would appoint an
attorney to assist Angelina “with the understanding that at the end of the case, we‟re
going to have some kind of a hearing for you to reimburse the county for the cost of the
attorney.” Angelina responded that she would rather represent herself. This exchange
followed:

              “THE COURT: You certainly have a right to do that, if you wish. I
       need to go through a bit of a ritual here.

              “[ANGELINA]: Yes.

              “THE COURT: And that is that all of the other parties in the case
       are going to be represented by attorneys and—

              “[ANGELINA]: Yes, I understand.

              “THE COURT: And they‟ve all had lots of education and they‟ve
       all had lots of experience in court in general and they‟ve all had lots of
       experience in juvenile dependency matters. And I don‟t know whether
       you‟ve ever been involved in a trial or not. I don‟t know if you‟ve been
       involved in a dependency case before or not. But you could be at a
       significant disadvantage because everybody else speaks a common
       language and you‟re the outsider, if that makes sense.

              “[ANGELINA]: Yes.

              “THE COURT: And because you‟re going to be representing
       yourself, the Court‟s not going to be able to give you a lot of leeway. I‟m
       going to have to hold you to the same standard I would hold Mr. Calhoun
       to.

              “Do you understand that?

              “[ANGELINA]: Oh, yes.

              “THE COURT: Do you still wish to represent yourself?



                                            27.
                “[ANGELINA]: Yes, sir.

                “THE COURT: Then I‟m going to allow you to do it. I‟m going to
         allow her to be her own attorney for the hearing involving Autumn [I.]”
         B.     Applicable Legal Principles
         By statute and court rule, an indigent parent has a right to appointed counsel in
dependency proceedings where out-of-home placement is an issue. (§ 317, subd. (b);
Cal. Rules of Court, rule 5.534(h)(1)(B).)5
         Section 317 provides in pertinent part:

                “(a) (1) When it appears to the court that a parent or guardian of the
         child desires counsel but is presently financially unable to afford and
         cannot for that reason employ counsel, the court may appoint counsel as
         provided in this section. [¶] … [¶]

                 “(b) When it appears to the court that a parent or guardian of the
         child is presently financially unable to afford and cannot for that reason
         employ counsel, and the child has been placed in out-of-home care, or the
         petitioning agency is recommending that the child be placed in out-of-home
         care, the court shall appoint counsel for the parent or guardian, unless the
         court finds that the parent or guardian has made a knowing and intelligent
         waiver of counsel as provided in this section.” (Italics added.)
         Rule 5.534(g) provides: “At each hearing the court must advise [a] self
represented child, parent, or guardian of the right to be represented by counsel and, if
applicable, of the right to have counsel appointed, subject to a claim by the court or the
county for reimbursement as provided by law.”
         On appeal, the parent must show a violation of the statute and establish that the
claimed error was prejudicial, that is, that it was reasonably probable that a result more
favorable to the parent would have been reached without the error. (In re Kristin H.
(1996) 46 Cal.App.4th 1635, 1667-1678; In re Ronald R. (1995) 37 Cal.App.4th 1186,
1195.)


5        Further references to rules are to the California Rules of Court.



                                                 28.
       C.     Analysis
       Angelina claims that in rejecting her request for appointed counsel at the hearing
on January 9, 2012, the juvenile court erred in finding she was able to afford counsel
because her primary source of income was SSI payments, which may not be considered
for the purpose of determining whether a person has the ability to pay legal fees in a
dependency case. She further contends that her subsequent waiver of counsel at the
January 17, 2012 hearing was not intelligent and knowing, in part, because the record
indicates she waived counsel solely based on the court‟s representation she would be
required to reimburse the county for the cost based on its erroneous finding that she was
able to afford an attorney.
       However, at the time of the January 9, 2012 hearing, Autumn had not been placed
in out-of-home care and the agency was not yet recommending out-of-home placement.
Therefore, Angelina‟s request for appointed counsel came within section 317,
subdivision (a). Thus, in her reply brief, Angelina acknowledges “the appointment of
counsel was within the court‟s discretion until such time as the agency recommended
removal of Autumn from Angelina‟s custody” and did not become mandatory until June
2012, when the agency changed its recommendation from granting Angelina family
maintenance services to removing Autumn from her custody. Nonetheless, Angelina
asserts the court abused its discretion in denying her initial request for appointed counsel
“because Angelina was at risk of losing custody of Autumn and the issues are complex.”
       We cannot agree that the juvenile court abused its discretion in denying
Angelina‟s initial request for appointed counsel. Angelina was not faced with losing
custody of Autumn at this early stage of the proceedings, and it was not yet apparent how
complex the issues might become. The court was understandably skeptical of Angelina‟s
assertions that she was unable to pay for counsel when four days earlier, at the January 5,
2012 hearing, she stated she had contacted Mr. Calhoun to represent Autumn and
Mr. Calhoun candidly informed the court that Angelina, not Autumn, was paying for his

                                             29.
services and that he was receiving the same amount a court-appointed attorney would
receive. Although Mr. Calhoun subsequently stated that he never received any money
from the mother (presumably referring to Angelina), his comments to the court suggest
he declined payment, not because Angelina could not afford to pay him, but to avoid the
potential conflict of interest issue raised by county counsel at the previous hearing. In
light of Angelina‟s apparent willingness to pay Mr. Calhoun up to the time of the
January 5, 2012 hearing, the court could reasonably question the credibility of her claim
that she was unable to afford an attorney, as well as her financial declaration claiming
only limited income from sources such as SSI and no other assets, including a bank
account.
       However, the agency concedes and we agree the record shows the juvenile court
failed to advise Angelina of her right to counsel at each hearing as required by
rule 5.534(g), and the court did not obtain an intelligent and knowing waiver of counsel
once it became mandatory to appoint counsel under section 317, subdivision (b). The
question then becomes whether Angelina has met her burden of establishing the court‟s
errors were prejudicial. We conclude she has not.
       One of Angelina‟s primary contentions on appeal is that the juvenile court erred in
permitting social worker Mouanoutoua to testify as an expert on false memory syndrome.
For reasons discussed below in part IV, even assuming the court erred in admitting
Mouanoutoua‟s testimony on the subject, it is not reasonably probable Angelina would
have obtained a more favorable result if the testimony had been excluded. For this
reason, we reject her claim that she was prejudiced by the court‟s failure to appoint
counsel for her on the ground counsel would likely have obtained a ruling excluding
Mouanoutoua‟s testimony or called an expert witness to refute her opinion that Autumn
suffered from false memory syndrome.
       Another reason Angelina has failed to demonstrate prejudice on this ground is that
Autumn‟s counsel, Mr. Calhoun, sought to exclude Mouanoutoua‟s testimony for the

                                            30.
same reasons Angelina now asserts appointed counsel would likely have presented on her
behalf.6 Specifically, Angelina argues that an attorney “experienced in the field of child
dependency likely would have objected more vociferously to Mouanoutoua‟s testimony
as an expert witness based on a syndrome that is not accepted in California” and
objected to the social worker‟s qualification as an expert under Evidence Code section
720. (Italics added.) While not specifically invoking the Evidence Code in objecting to
the admission of Mouanoutoua‟s testimony, Mr. Calhoun did specifically challenge her
qualification to testify as an expert on false memory syndrome and stated, “I don‟t see her
being an expert in false memory syndrome when it’s not even accepted in the state.”7
(Italics added.) Moreover, during the voir dire of the social worker, he elicited testimony
acknowledging false memory syndrome was “not accepted in some places” and did not
constitute a psychiatric or medical diagnosis. Despite Mr. Calhoun‟s strong objections,
the court found Mouanoutoua “qualified to testify as an expert under false memory
syndrome, and that‟s based on [her] having greater knowledge than the trier of facts in
this limited area.” On this record, we are not persuaded by Angelina‟s argument that if
she had been appointed counsel, her attorney would likely have had greater success in
obtaining a ruling to exclude Mouanoutoua‟s expert testimony on false memory
syndrome.

6       We are mindful the juvenile court found that Mr. Calhoun could properly represent
Autumn‟s interests after holding an inquiry into the matter. However, we express some
reservations here based on suggestions in the record that Mr. Calhoun arguably advocated on
Angelina‟s behalf, or she at least viewed him as her advocate during the proceedings. Thus,
there were times, in encounters with the social worker and in court, when Angelina appeared to
defer to Mr. Calhoun or seek his advice. Also, in written objections to the social worker‟s
opinions filed on June 13, 2012, Mr. Calhoun was specifically identified as “Attorney for
Angelina [I.]” under his name and contact information. (Italics added.) This might very well
have been an inadvertent typographical error. Nevertheless, it raises the suggestion of a possible
conflict of interest, an issue the juvenile court might consider revisiting in future proceedings.
7       Mr. Calhoun did, however, agree the social worker was an expert in child psychology and
in child abuse and neglect based on her master‟s degree.



                                               31.
       Angelina‟s other arguments are equally unpersuasive. She contends an attorney
would likely have limited the evidence introduced on her behalf, and gives the following
example: “[A]n attorney may have limited the information in the declarations submitted
so that the declarations referred only to the relevant issues raised in the petition” or “may
have suggested that no declarations be submitted prior to the dispositional hearing.”
While she does not elaborate, presumably Angelina‟s argument is alluding to the fact her
declarations often worked against her by providing further evidence of her troubling
behavior. However, even had Angelina‟s declarations been limited or omitted, evidence
of her continuing allegations of abuse (which expanded during the proceedings to include
more and more members of Autumn‟s maternal family and became increasingly
disturbing in content ) would still have been before the court through the agency‟s
reports, which had copies of Angelina‟s accusatory letters and text messages attached.
The same is true of Angelina‟s charges of bias and dishonesty against the agency, social
workers, and others connected to the proceedings. Thus, Angelina has not shown the
outcome would have been more favorable to her had she been represented by an attorney
who effectively reined in her declarations.
        Angelina also argues “an attorney would have been able to formulate questions
that would have elicited answers that may have helped further Angelina‟s interests.” In
support of her argument, she points to her difficulty formulating questions during cross-
examination of Mouanoutoua, and to occasions when she interrupted counsel or asked
questions at inappropriate times. While we have little doubt an attorney would have
more skillfully handled the examination of witnesses, this falls short of establishing a
reasonable likelihood Angelina would have obtained a more favorable result had she been
represented by counsel.
       Angelina further argues she “was unable to discern when an objection might be
appropriate or formulate meaningful objections.” She asserts an attorney would likely
have been able to overcome the hearsay objection and find means to introduce evidence

                                              32.
she sought to introduce of Autumn‟s statements that she watched vulgar movies at Frank
and Francine‟s house, possibly by calling Autumn as a witness. But Angelina does not
explain how this evidence would likely have changed the outcome of the proceedings but
merely speculates that “[w]hether or not Autumn watched violent or vulgar movies at
Frank and Francine‟s home may have been relevant to the source of Autumn‟s statements
regarding abusive behaviors by Fallon.” (Italics added) In any event, it is unlikely such
evidence would have made a difference in light of compelling evidence that Angelina
was the source of Autumn‟s statements regarding the alleged abuse by Fallon, which
Autumn indicated she did not remember until more than a week after Angelina described
the abuse in her letter to Fallon.
       Similarly, Angelina asserts an attorney would likely have been able to overcome
the hearsay objection to her testimony that Chancey told her an Amber Alert was issued
against her by arguing that it was not being offered to prove the truth of the matter
asserted but to show Angelina believed an alert had issued. Again, Angelina fails to
explain how this evidence would likely have made a difference to the outcome of the
proceedings. However, we do not believe it would have made a difference since
evidence that Chancey told Angelina there was an Amber Alert against her was already
before the court through Lupe M.‟s testimony. Moreover, this evidence was not directly
relevant to the allegations in the dependency petition but appears to relate to a particular
referral described in the agency‟s reports, reflecting an incident in October 2011 during
which Angelina reportedly called the district attorney‟s office, angrily complaining that
an Amber Alert had issued against her two days earlier and claiming that Autumn‟s
“other grandparents” would file false police reports against her. When Angelina called
again later and was informed no Amber Alert or criminal reports against her had been
located, Angelina became very irate and “changed her story,” stating the Amber Alert
had been issued two months prior.



                                             33.
       Additionally, Angelina argues that an attorney would likely have found a way to
introduce evidence “to prove the point Angelina was trying to make, which was that lack
of evidence of sexual molest does not prove it did not happen” but “merely leaves open
the question of whether or not the child was molested.” In addition to its failure to
demonstrate prejudice, Angelina‟s argument is unpersuasive because there is no
indication in the record that anyone connected to this case believed Autumn had not been
sexually abused based solely on the lack of physical evidence. When Angelina‟s original
allegations of sexual abuse against Steve surfaced several years prior to the initiation of
these proceedings, the police and agency did not reject the allegations based simply on
the lack of physical evidence that Autumn was abused, but also on the existence of
circumstances indicating Angelina was the one who manufactured the allegations.
According to Officer Bidegaray‟s unrefuted testimony, when Autumn was interviewed at
that time, she disclosed no sexual abuse by Steve.8 And Angelina herself told the officer
that Autumn never mentioned that Steve touched her inappropriately. Rather, Angelina
said she suspected he did something inappropriate because Autumn allegedly smelled
like “man sweat” after being at his home.
       In light of the agency‟s rejection of Angelina‟s original sexual abuse allegations
years earlier based on both the lack of evidence and circumstances indicating she made
them up, it was not unreasonable for professionals involved in these proceedings to begin
with the assumption that the allegations remained unfounded; Angelina‟s continued
repetition of the allegations and the progressive addition of implausible details did not
make them any less false.


8       The jurisdiction/disposition report reflects that at the time, Autumn did make statements
to the effect that she was scared of Steve because he choked her, demonstrating with her hands
on her neck. However, the agency believed Autumn was coached in making these statements,
noting Steve‟s right arm was amputated and he was therefore unable to choke the child with both
hands.



                                               34.
II.    De Facto Parent Status
       Angelina challenges the order of the juvenile court on July 19, 2012, granting de
facto parent status to the maternal grandfather and stepgrandmother, Frank and Francine,
arguing that their relationship with Autumn did not rise to the level required for this
status. The agency responds that Angelina, as a guardian, does not have standing to
challenge the order. Angelina replies that she is aggrieved by the order because it allows
Frank and Francine access to all court hearings, at which they will be exposed to
confidential information regarding Angelina.
       We agree that Angelina lacks standing to challenge the order granting de facto
parent status to Frank and Francine because she is not aggrieved by that order. (In re
Vanessa Z. (1994) 23 Cal.App.4th 258, 261; In re Daniel D. (1994) 24 Cal.App.4th 1823,
1836; In re Crystal J. (2001) 92 Cal.App.4th 186, 189.)
       The concept of a de facto parent was judicially created to recognize limited rights
in dependency cases for a person who has been found by the juvenile court to have
assumed the role of a parent on a day-to-day basis, fulfilling the child‟s physical and
psychological needs for affection and care for a substantial period of time. (In re B.G.
(1974) 11 Cal.3d 679, 692-693 & fn. 18; In re Kieshia E. (1993) 6 Cal.4th 68, 70-71;
rule 5.502(10).) The juvenile court does not consider whether granting de facto parent
status would be detrimental to the child or in the child‟s best interests, but whether the
adult has assumed the role of parent and possesses information that would be in the
child‟s best interests for the court to receive. (In re Leticia S. (2001) 92 Cal.App.4th 378,
383, fn. 5.) The doctrine of de facto parenthood should be “liberally applied to ensure
that all legitimate views, evidence, and interests are considered in dispositional
proceedings involving a dependent minor.” (In re Kieshia E., supra, at p. 76.) A de facto
parent is entitled to be present at hearings with counsel and to introduce relevant evidence
that may aid in the trial court‟s decision-making process with respect to the child‟s best
interests. (In re Joshuia S. (1988) 205 Cal.App.3d 119, 125.)

                                             35.
       “De facto parents are not equated with biological parents or guardians for purposes
of dependency proceedings and standing to participate does not give them all of the rights
and preferences accorded such persons.” (In re Rachael C. (1991) 235 Cal.App.3d 1445,
1452, disapproved on other grounds in In re Kieshia E., supra, 6 Cal.4th at p. 80.) A
grant of de facto parent status gives a person the right to be present at the dependency
hearing, to be represented by counsel, and to present evidence. (Rule 5.534(e); In re
Patricia L. (1992) 9 Cal.App.4th 61, 66.) De facto parents may “appear as parties to
assert and protect their own interest[s] in the companionship, care, custody and
management of the child.” (In re B.G., supra, 11 Cal.3d at p. 693, fn. omitted.)
       De facto parent status does not give the de facto parent the right to have the minor
placed with him or her, nor does it entitle the de facto parent a right to reunification
services. (In re Kieshia E., supra, 6 Cal.4th at p. 77, fn. 7; In re Cynthia C. (1997) 58
Cal.App.4th 1479, 1490-1491, & fn. 11; Clifford S. v. Superior Court (1995) 38
Cal.App.4th 747, 752.) A de facto parent‟s connection with the proceedings is that
person‟s separate interest and relationship with the child, which may have developed over
time through the daily care, affection, and concern for the child. (In re Vanessa Z., supra,
23 Cal.App.4th at p. 261.) However, “[d]e facto parents are not part of any adversarial
aspect of a dependency case.” (In re B.F. (2010) 190 Cal.App.4th 811, 817, fn. omitted.)
       In In re Vanessa Z., the court held that a father lacked standing to challenge the
denial of his mother‟s motion to be declared the child‟s de facto parent because his
interests were not affected by the denial of the motion. (In re Vanessa Z., supra, 23
Cal.App.4th at p. 261.) The court explained that a parent‟s interest in a dependency
proceeding is to reunify with the child, while a de facto parent‟s interest is that person‟s
separate interest in his or her relationship with the child. The fact that the motion was
denied did not preclude the father from presenting any evidence relating to the child‟s
best interest or his relationship with the child. (Ibid.) This reasoning was followed by In
re Daniel D., in which the court held a parent had no standing to challenge another

                                             36.
party‟s de facto parent motion. (In re Daniel D., supra, 24 Cal.App.4th at pp. 1835-
1836.)
         Angelina‟s interest in the dependency proceedings was to reunify with Autumn
and that interest was not affected by an order granting Frank and Francine de facto parent
status. Angelina was not precluded from presenting evidence relating to Autumn‟s best
interests or her relationship with her. (In re Vanessa Z., supra, 23 Cal.App.4th at p. 261;
In re Crystal J., supra, 92 Cal.App.4th at p. 190.) Thus, Angelina‟s interests were not
prejudiced when the court conferred de facto parent status on the maternal grandparents.
(In re Daniel D., supra, 24 Cal.App.4th at p. 1835.) Angelina lacks standing to challenge
the granting of de facto parent status to Frank and Francine.
III.     De Facto Parents’ Access to Records
         Angelina challenges the juvenile court‟s granting Frank and Francine‟s access to
confidential records. This contention has merit.
         As we have explained, “[w]hile de facto parents have „standing to participate as
parties‟ (rule 5.534(e)), their role is limited and they do not enjoy the same due process
rights as parents. (In re Kieshia E., supra, [6 Cal.4th] at p. 77, citing In re B.G.[, supra,]
11 Cal.3d [at p. ]693, fn. 21; Clifford S. v. Superior Court[, supra,] 38 Cal.App.4th [at
p. ]755; compare rule 5.534(e) [de facto parents may be present at the hearing, be
represented by counsel and present evidence] with rule 5.534(k)(1)(B) [parents and
children have the right to confront and cross-examine the social worker and other
witnesses].) De facto parents do not have an automatic right to receive the Agency‟s
reports and other documents filed with the court. (Cf. rule 5.534(k)(2)(A), (3) [parents
and children have the right to receive Agency‟s reports and, „[u]nless prohibited by court
order, … the right to receive all documents filed with the court‟]; rule 5.546(d)(6)
[Agency‟s duty to disclose material and information, „including results of … mental
examinations,‟ to parents and children].)” (In re B.F., supra, 190 Cal.App.4th at p. 817.)



                                              37.
       “„It is the express intent of the Legislature “that juvenile court records, in general,
should be confidential.”‟ (In re Keisha T. (1995) 38 Cal.App.4th 220, 231, quoting
§ 827, subd. (b)(1).) Thus, section 827 restricts access to the case file in a juvenile
proceeding. That section lists persons entitled to inspect the file without a court order,
and a smaller number of persons who are also entitled to receive copies of the file without
a court order. (§ 827, subd. (a)(1), (5); rule 5.552(b)(1).) De facto parents are not listed
(§ 827, subd. (a)(1)), but they have standing to petition the juvenile court for the right to
inspect or copy the case file (§ 827, subd. (a)(1)(P); rule 5.552(b)(3), (c)).” (In re B.F.,
supra, 190 Cal.App.4th at p. 818.)
       De facto parents must adhere to the following procedure to seek access to
confidential records: “A section 827 petition must identify „[t]he specific records sought‟
and „describe in detail the reasons the records are being sought and their relevancy to the
proceeding or purpose for which petitioner wishes to inspect or obtain the records.‟
(Rule 5.552(c).) To prevail, the petitioner must show good cause. (Rules 5.552(e)(1) [if
the petition does not show good cause, the court may deny it summarily], (2) [if
petitioner shows good cause, the court may set a hearing].) The petitioner has the burden
of proving, by a preponderance of the evidence, „that the records requested are necessary
and have substantial relevance to the legitimate need of the petitioner.‟
(Rule 5.552(e)(6).)” (In re B.F., supra, 190 Cal.App.4th at p. 818.)
       “All interested parties must be given notice and an opportunity to object to the
section 827 petition. (§ 827, subd. (a)(3)(B).) „[I]f the court determines that there may
be information or documents in the records sought to which the petitioner may be
entitled, the … court … must conduct an in camera review of the juvenile case file and
any objections and assume that all legal claims of privilege are asserted.‟
(Rule 5.552(e)(3).) „In determining whether to authorize inspection or release of juvenile
case files, in whole or in part, the court must balance the interests of the child and other
parties to the juvenile court proceedings, the interests of the petitioner, and the interests

                                              38.
of the public.‟ (Rule 5.552(e)(4).) To grant the petition, the court must determine „that
the need for discovery outweighs the policy considerations favoring confidentiality of
juvenile case files.‟ (Rule 5.552(e)(5).) „The court may permit disclosure of juvenile
case files only insofar as is necessary .…‟ (Rule 5.552(e)(6).)” (In re B.F., supra, 190
Cal.App.4th at p. 818.)
       Here, the juvenile court erred by granting Frank and Francine wholesale access to
all records rather than utilizing the preceding procedure. The court‟s order permitting
such access must be reversed.
IV.    False Memory Syndrome
       Angelina contends the juvenile court abused its discretion in admitting testimony
regarding false memory syndrome because Mouanoutoua did not qualify as an expert on
the subject and because the testimony was inadmissible under the evidentiary standards
set forth in Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye) and People v. Kelly
(1976) 17 Cal.3d 24 (Kelly), also known as the Kelly-Frye test. We conclude the court
did not abuse its discretion in finding the social worker qualified as an expert on the
subject of false memory syndrome. However, even assuming the court erred in admitting
the testimony, we find the error was harmless.
       A.     Expert Qualification
       In challenging the social worker‟s testimony, Angelina first contends
Mouanoutoua did not qualify as an expert on false memory syndrome under Evidence
Code section 720 because “she had scant training in false memory syndrome” and “she
merely learned about false memory syndrome as part of general education courses in the
field of social work.” We disagree with Angelina‟s characterization of the record. The
social worker‟s testimony during voir dire indicated she learned about false memory
syndrome not in general education courses but in specialized courses on child abuse. For
this and other reasons discussed in more detail below, we conclude the court did not



                                             39.
abuse its discretion in permitting the social worker to testify as an expert on false
memory syndrome.
       Evidence Code sections 720 and 801 are the California provisions governing
admissibility of expert testimony. Evidence Code section 720, subdivision (a), provides:
“A person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates....” Subdivision (b) of that section provides: “A witness‟[s]
special knowledge ... may be shown by any otherwise admissible evidence, including his
own testimony.”
       Evidence Code Section 801 permits an expert to state an opinion that is
“(a) Related to a subject that is sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his
special knowledge ...) perceived by or personally known to the witness ..., whether or not
admissible, that is of a type that reasonably may be relied upon by an expert in forming
an opinion upon the subject to which his testimony relates, unless an expert is precluded
by law from using such matter as a basis for his opinion.”
       “A trial court has discretion to determine whether a proposed witness is qualified
to testify as an expert under [Evidence Code section 720], and this determination will not
be disturbed absent an abuse of discretion. [Citation.]” (In re Beatrice M. (1994) 29
Cal.App.4th 1411, 1421.) Such abuse of discretion will be found only where “„“the
evidence shows that a witness clearly lacks qualification as an expert .…”‟ [Citation.]”
(People v. Chavez (1985) 39 Cal.3d 823, 828.) “[A]n expert‟s qualifications „must be
related to the particular subject upon which he is giving expert testimony. Qualifications
on related subject matter are insufficient. [Citations.]‟ [Citation.]” (Ibid.)
       Here, the voir dire of social worker Mouanoutoua revealed that in May 2011 she
received a master‟s degree in social work and, at the time of the jurisdictional hearing,
had worked as a social worker for the agency for approximately one year. Prior to that,

                                             40.
she interned for a year as a mental health therapist at an agency called Comprehensive
Youth Services. During her term, she provided one-on-one therapy to adults and
children. She also interned as a social worker in the agency‟s family reunification unit
from August 2009 to May 2010. Mouanoutoua testified that, in her training, she had
“completed over 26 courses in relation to this case,” including courses on emotional,
physical, and sexual child abuse, and false memory syndrome was specifically discussed
in her training and coursework. She also testified she had firsthand experience
counseling children dealing with false memory syndrome. In light of Mouanoutoua‟s
education, training, and experience relating to false memory syndrome, we cannot say the
evidence showed the social worker clearly lacked qualification as an expert. Therefore, it
was not an abuse of discretion to permit her to testify as an expert on the subject.
       B.     Kelly-Frye
       Next, Angelina contends Mouanoutoua‟s expert testimony on false memory
syndrome was inadmissible under the Kelly-Frye test because, as the social worker
herself attested, the syndrome is controversial and has not been widely accepted in the
psychological community. As we shall explain, although this case is arguably
distinguishable from the authority on which Angelina relies to support her contention, we
need not resolve the question of whether evidence of false memory syndrome should
have been excluded under the Kelly-Frye test because Angelina cannot establish
prejudice.
       The Kelly-Frye test applies to the admissibility of expert testimony based on “a
new scientific technique.” (Kelly, supra, 17 Cal.3d at p. 30.) The test involves a two-
step process: “(1) The reliability of the method must be established, usually by expert
testimony, and (2) the witness furnishing such testimony must be properly qualified as an
expert to give an opinion on the subject.” (Ibid., italics omitted.)
       In support of her argument that the juvenile court erred in admitting expert
testimony regarding false memory syndrome, Angelina relies heavily on In re Sara M.

                                             41.
(1987) 194 Cal.App.3d 585 (Sara M.). In Sara M., the court held that under the Kelly-
Frye test, expert testimony regarding “child molest syndrome” was not admissible to
prove that a child was molested. (Sara M., supra, at pp. 592, 594; see also People v.
Bledsoe (1984) 36 Cal.3d 236, 251 (Bledsoe) [under Kelly-Frye test, expert testimony
regarding “rape trauma syndrome” inadmissible to prove complaining witness was
raped].) The Sara M. court explained:

       “A basic defect of the [child molest] syndrome is thus apparent: the
       syndrome was developed on the assumption the children studied were in
       fact molested. Moreover … it appears to be a tool for therapy and
       treatment, much like the rape trauma syndrome. Consequently, the same
       problem discussed in Bledsoe may be present in the case of the child molest
       syndrome: if it was not developed as a truth-seeking procedure but rather
       as a therapeutic aid, it cannot be used for a different purpose, i.e., to prove a
       molestation occurred.” (Sara M., supra, at p. 593, fn. omitted.)
       The agency, on the other hand, suggests the social worker‟s testimony regarding
false memory syndrome was not subject to the Kelly-Frye test, relying on People v. Stoll
(1989) 49 Cal.3d 1136 (Stoll). In Stoll, a defendant accused of child molestation
proffered expert testimony by a psychologist, who conducted tests of the defendant and
concluded she did not possess any pathology in the nature of sexual deviation. (Id. at
p. 1146.) The trial court excluded the expert opinion on the grounds that it did not pass
the Kelly-Frye test. (Stoll, supra, at p. 1147, 1150-1151.) Our Supreme Court, however,
held “[t]he psychological testimony proffered here raises none of the concerns addressed
by Kelly-Frye. The methods employed are not new to psychology or the law, and they
carry no misleading aura of scientific infallibility.” (Id. at p. 1157.)
       The Supreme Court noted that in determining whether expert testimony is based
on a new scientific technique requiring scrutiny under the Kelly-Frye test, the court must
consider the test‟s “narrow „common sense‟ purpose, i.e., to protect the jury from
techniques which, through „new,‟ novel, or „“experimental,‟” convey a „“misleading aura
of certainty.”‟ [Citations.]” (Stoll, supra, 49 Cal.3d at pp. 1155-1156.) Absent “some


                                              42.
special feature which effectively blindsides the jury,” a psychologist‟s expert opinion
testimony is not subject to the Kelly-Frye test. (Stoll, supra, at p. 1157.) This is because
“„[w]hen a witness gives his personal opinion on the stand—even if he qualifies as an
expert—the jurors may temper their acceptance of his testimony with a healthy
skepticism born of their knowledge that all human beings are fallible….‟” (Ibid.)
       The agency suggests that social worker Mouanoutoua‟s assessment of Autumn
was more akin to the psychologist‟s assessment of the defendant in Stoll, and the Kelly-
Frye test was inapplicable because “[n]othing in her testimony carried a misleading aura
of scientific infallibility.” The agency further suggests false memory syndrome evidence
would pass the Kelly-Frye test in any event, asserting “the intellectual jury ha[s] tipped
the scales in favor of the false memory syndrome side of the debate” and citing a law
review article about studies on children‟s susceptibility to forms of suggestion.
       Sara M., on which Angelina relies, is arguably distinguishable from this case.
Angelina asserts: “Here, like in Sara M., the testimony was offered in support of the
case-in-chief to show that Autumn had not been molested and Angelina implanted
memories into her.” However, contrary to Angelina‟s suggestion, the agency did not rely
on evidence Autumn was suffering from false memory syndrome in order to prove she
had not in fact been molested by her maternal stepgrandfather, Steve. Rather, the agency
and police department had already investigated and found Angelina‟s allegations of
sexual abuse to be unfounded several years earlier and the agency‟s investigation in the
current proceedings focused on assessing how Angelina‟s continued repetition of these
baseless allegations was affecting Autumn. As discussed above, it appears the social
worker and others connected to the investigation were reasonably operating on the
assumption that Angelina‟s allegations were false based on the agency‟s previous
findings. Thus, the primary purpose of the false memory syndrome evidence was not to
prove Autumn was not actually a victim of sexual abuse, something the agency had



                                            43.
already established, but to show how Angelina‟s persistent delusions of victimization
were emotionally harming Autumn.
       C.     Harmless Error
       The juvenile court may exercise dependency jurisdiction over a child who is
suffering serious emotional damage, or who is at substantial risk of suffering serious
emotional damage, as evidenced by severe anxiety, depression, withdrawal, or untoward
aggression, resulting from the conduct of the child's parent or guardian. (§ 300,
subd. (c).) In other words, the agency was required to prove three elements for the court
to assert jurisdiction in this case: “(1) the offending parental conduct; (2) causation; and
(3) serious emotional harm or the risk thereof, as evidenced by severe anxiety,
depression, withdrawal or untoward aggressive behavior.” (In re Alexander K. (1993) 14
Cal.App.4th 549, 557.)
       The juvenile court may also order a child removed from the custody of the child‟s
parent or guardian if the court finds by clear and convincing evidence the child is
suffering severe emotional damage, as indicated by extreme anxiety, depression,
withdrawal, or untoward aggression and there are no reasonable means by which the
child‟s emotional health may be protected without removal. (§ 361, subd. (c)(3).)
       Section 361 provides in pertinent part: “(c) A dependent child may not be taken
from the physical custody of his or her parents or guardian or guardians with whom the
child resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence .… [¶] … [¶] (3) The minor is suffering severe emotional damage,
as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive
behavior toward himself or herself or others .….”
       Angelina specifically contends that without the evidence of false memory
syndrome, substantial evidence would not likely have supported the juvenile court‟s
jurisdictional and dispositional findings because there was no substantial evidence her
conduct had caused Autumn to suffer or placed her at a substantial risk of suffering

                                             44.
serious or severe emotional harm as evidenced by severe or extreme anxiety, depression,
withdrawal or untoward aggressive behavior. We disagree.
       Initially, we reject Angelina‟s assertion that, like the testimony concerning child
molest syndrome in Sara M., supra, 194 Cal.App.3d at page 594, the testimony
concerning false memory syndrome here “permeated” the jurisdictional and dispositional
hearings. As previously discussed, contrary to Angelina‟s suggestion, the agency did not
depend on Mouanoutoua‟s opinion that Autumn suffered from false memory syndrome to
prove Angelina‟s allegations of sexual abuse were false. That conclusion had already
been long established prior to Mouanoutoua‟s involvement and finds ample evidentiary
support in the record. While it is true Mouanoutoua‟s opinion that Autumn was suffering
false memory syndrome factored heavily in her opinion that Angelina‟s behavior had
harmed Autumn emotionally, the agency presented other substantial evidence of
emotional harm at the jurisdictional hearing, including evidence of withdrawal in that
Autumn was becoming socially isolated and was manifesting signs of severe anxiety
through both day and nighttime wetting accidents that were still occurring at the time of
the jurisdictional hearing. Notably, in closing argument, county counsel did not
specifically mention false memory syndrome but cited to the evidence of enuresis and
emotional volatility exhibited by Autumn in her reported interactions with the social
worker, both of which support the conclusion that Autumn was suffering or was at
substantial risk of suffering serious emotional harm.
       Although the case is not mentioned in the parties‟ briefing on appeal,9 the record
shows that the agency relied on In re Matthew S. (1996) 41 Cal.App.4th 1311, 1314
(Matthew S.) at the jurisdictional hearing to support its argument that Angelina‟s conduct
placed Autumn at risk of suffering serious emotional harm. In Matthew S., a mother had
delusions that her 13-year-old son‟s penis had been mutilated and she had murdered the

9      The agency did, however, raise Matthew S. at oral argument.



                                             45.
treating physician. Acting on those delusions, the mother took her son to a urologist, who
found no evidence of injury. (Ibid.) The mother had other delusions about her son‟s
penis being mutilated and about being married to an actor who she claimed had been
murdered by the Mafia. (Ibid.) The Court of Appeal affirmed juvenile court jurisdiction,
concluding substantial evidence supported jurisdictional findings under section 300,
subdivision (c) that the son was at substantial risk of suffering serious emotional damage.
(Matthew S., supra, at pp. 1320-1321.) The court explained that although the son had not
yet suffered emotional harm, substantial evidence “point[ed] to a substantial risk of
emotional harm.” (Id. at p. 1320.) “[The mother] brings a foreboding sense of dread,
danger and catastrophe to the lives of her children. Although [the son] so far has been
able to deal with his mother‟s delusions, he is confused by them … [and] is forced to
shoulder a tremendous burden.” (Ibid.)
       Here, the evidence establishing Autumn‟s risk of suffering serious emotional harm
was at least as great as that of the minor in Matthew S. Whether or not Autumn suffered
from false memory syndrome, she clearly shouldered a tremendous burden in dealing
with Angelina. In Autumn‟s presence, Angelina would openly describe the young child
to others as a victim and perpetrator of familial sexual abuse, and claim she suffered from
chronic, nonexistent medical conditions limiting her ability to engage in normal
childhood activities. And, in contrast with Matthew S., there was evidence here that
Autumn had already begun to suffer emotional damage as a result of Angelina‟s conduct.
       Angelina‟s reliance on in In re Brison C. (2000) 81 Cal.App.4th 1373 (Brison C.)
is misplaced. In Brison C., the minor was a pawn in an ongoing and vicious custody
battle between the parents. This court concluded: “The evidence shows only that [the
minor], an otherwise reasonably well-adjusted child who performed well at school and
displayed no serious behavioral problems, despised his father and desperately sought to
avoid visiting him. Standing alone, this circumstance is insufficient to support a finding
that [the minor] is seriously emotionally damaged.” (Brison C., supra, at p. 1376.)

                                            46.
Furthermore, the evidence did not support a finding the minor was at substantial risk of
suffering serious emotional damage because as of the time of the jurisdictional hearing,
“the parents had recognized the inappropriateness of their behavior and made good faith
efforts to alleviate the problem.” (Ibid.)
       On the issue of substantial risk of serious emotional harm, Brison C. is
considerably different from this case because there, both parents had recognized the
inappropriateness of their past behavior and had expressed a willingness to change their
behavior and attend therapy. (Brison C., supra, 81 Cal.App.4th at p. 1381.) There was
no evidence the parents suffered from mental illness, were delusional, or were incapable
of “expressing their frustration with each other in an appropriate manner.” (Ibid.)
       In contrast here, Angelina has never recognized the inappropriateness of her
behavior, has never expressed a willingness to change, and appears incapable of acting in
an appropriate manner as evidenced by her continuing and increasingly bizarre
allegations of abuse during the proceedings. Even without reference to evidence of false
memory syndrome, there is substantial evidence Angelina‟s relentless exposure of
Autumn to such allegations has caused Autumn to suffer emotional harm and placed her
at substantial risk of further, serious emotional harm.
       For the same reasons, even without the evidence of false memory syndrome, there
was substantial evidence supporting the court‟s removal order at the conclusion of the
dispositional hearing. In addition to the evidence of enuresis and emotional volatility
relied on at the jurisdictional hearing, the agency presented additional evidence that
Autumn was exhibiting signs of extreme anxiety, emotional withdrawal, and aggression
towards others in that she had regressed to chronic thumb sucking, she was engaging in
pathological behaviors including lying and stealing money from relatives, and she
became mute and withdrawn in a therapy session when Angelina became upset and
insisted that she make disclosures of sexual abuse. There was also evidence that despite
her self-reports of feeling good and happy and her good behavior and grades at school,

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Autumn was manifesting physical symptoms of emotional distress, including chronic
headaches and stomachaches, resulting in numerous school absences and, consequently,
lost opportunities to socialize with peers. Moreover, as at the jurisdictional hearing,
county counsel did not specifically mention the evidence of false memory syndrome in
closing argument at the dispositional hearing. On the record before us, we are unable to
conclude there is a reasonable probability Angelina would have obtained a more
favorable result at either the jurisdictional or dispositional hearing if Mouanoutoua‟s
expert testimony regarding false memory syndrome had been excluded.
                                      DISPOSITION
       The juvenile court‟s order granting the de facto parents access to confidential
records is reversed. In all other respects, affirm the jurisdictional and dispositional orders
of the juvenile court.


                                                                  _____________________
                                                                                 Kane, J.
WE CONCUR:


_____________________
Wiseman, Acting P.J.


 _____________________
Levy, J.




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