In re Roger D. CA2/2 ( 2014 )

Filed 9/3/14 In re Roger D. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re ROGER D., JR., et al., Persons B253101
Coming Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK97483)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent.
v.
ROGER D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Robert S.
Draper, Judge. Affirmed.
Eliot Lee Grossman, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Sarah Vesecky, Deputy County Counsel for Plaintiff and Respondent.
Roger D. (father) appeals from jurisdictional and dispositional orders of the
juvenile court. Father contends that substantial evidence does not support the juvenile
court’s finding that he sexually abused Jessica R. (born May 1996). Father further argues
that substantial evidence does not support the juvenile court’s findings that abuse of
Jessica put Roger, Jr. (born June 2000) and Valerie (born March 2003), father’s
biological children, at risk of harm. Finally, father contends he received ineffective
assistance of counsel.1
COMBINED FACTUAL AND PROCEDURAL BACKGROUND
The family consists of father, Sandy R. (mother), Jessica (mother’s daughter from
a previous relationship), Roger, Jr. and Valerie.2
Referral and investigation
On October 2, 2012, DCFS received a referral alleging that then 16-year-old
Jessica was emotionally and sexually abused by father. The caller reported that mother
and Jessica sought therapy for Jessica for symptoms of depression. Jessica and mother
reported that the main reason Jessica was depressed was that she was raped by father two
years earlier when she was age 14. The caller reported that mother had already separated
from father due to domestic violence. There was an active restraining order in place for
mother against father.
An emergency response social worker visited the home and interviewed Jessica.
Jessica reported that on one occasion, father had backhanded her on the left cheek
because she was looking at a friend’s cellular telephone. Father was upset because
Jessica was not allowed to have a cellular telephone.
Jessica further reported that one time, two years prior, father sexually abused her.
Jessica did not disclose the abuse to her mother at that time. Jessica reported that father
1 Father has also raised the ineffective assistance of counsel issue in “a motion to
remand for discovery re potential IAC claim and/or petition for writ of habeas corpus”
filed concurrently with his opening brief. We denied the motion on March 19, 2014.
2 Jessica’s biological father’s whereabouts are unknown. The family has no contact
with him and he is not a party to the case.
2
woke her and took her to the living room. Mother and siblings were sleeping when the
incident took place. Jessica reported that father had intercourse with her, with full
penetration, but that it was for a short time because he thought he heard someone.
On December 19, 2012, the social worker transported mother and Jessica to a
forensic interview. During the interview, Jessica elaborated on the sexual abuse incident.
She stated that she was awakened by father who took her to the living room. She thought
he wanted company while watching television. She started feeling like someone was
touching her, on her lower private part between her legs and the side of her breast. She
was in shock and felt like she was dreaming. Jessica recalled that she was wearing
shorts, like “boxers,” and a tank top. She felt her shorts being pulled down. Jessica felt
father’s hands inside her shorts. She thought that father was touching her outside her
shorts and tank top. When he pulled her shorts down, father was trying to penetrate her.
His sweats were down. His private parts were touching her private parts. Jessica
remembered pushing him off.
Jessica did not tell mother right away about this incident. She told mother about
one year later, when they were on vacation in Los Angeles and away from father. Mother
cried and held her. When they returned to their residence in Riverside, mother
confronted father. After that, mother kept all the children away from father.
Jessica reported that it was her idea not to prosecute father. She did not want to
re-live the incident as she did in therapy. Father was like a biological father to her, and
she felt “back-stabbed.” Jessica was happy that father was not around and that she had
no contact with him. However, she had no concerns for her siblings’ safety and
understood that her siblings wanted to see father.
Mother was also interviewed. She reported that though she was not married to
father, she had lived with him for 15 years. Mother was afraid of father due to abuse,
both verbal and physical, which started when she was 17 years old. Mother reported that
father hit her and raped her on one occasion. Mother never called the police. Mother
provided the social worker with a copy of the restraining order against father, which did
not include the children.
3
When Jessica disclosed the sexual abuse to mother, mother decided that she was
going to move out. However, she stayed with father for six months longer in order to
save money. During this time mother did not leave the children alone with father. After
six months, mother moved in with maternal grandmother for three months and then to her
current address in Bell Gardens.
Father was interviewed at the DCFS office. Father denied Jessica’s allegations.
He reported that he was surprised when he received notice for the court date for the
restraining order. He had contact with mother and the children prior to the restraining
order. Father showed the social worker text messages from mother and Jessica dated
September 2012.
Father reported that he and mother are not married and he has not lived with the
family since September 2011. In September 2011 he overdosed on his medication and
walked in to his psychiatrists’ office in Riverside. He was admitted and placed on an
involuntary Welfare & Institutions Code section 5150 hold.3 When he was released he
moved in with paternal grandmother in Carson, where he has lived ever since. Father
acknowledged that he is aggressive but denied ever physically abusing mother or the
children. He admitted to yelling at them. He also admitted that mother confronted him
about Jessica’s allegation of sexual abuse. Father told mother it was not true. Father
confronted Jessica about the allegation. Jessica denied it, but later told him that he had
fondled her. Father stated he would never harm his children and if he did he would
remember.
Father reported that in 2005 he was diagnosed with depression, anxiety, psychotic
behavior and bipolar disorder. He is taking medication and seeing a psychiatrist in
Carson. Father also reported that he has episodes where he goes to sleep in one area and
wakes up in another area. When he lived with mother, mother told him he would walk
around the house mumbling and laughing.
3 All further statutory references are to the Welfare & Institutions Code.
4
Father desired visitation with his children. He loved Jessica as a daughter but
understood the visits would not include her. Father said he would continue to respect the
restraining order until the court ordered visits.
Paternal grandmother was also interviewed. She had no concerns about father
having contact with the children. She was surprised when she learned of the restraining
order because mother and the children had been visiting with father at her home. The last
time was July 2012 and everyone got along. Father and mother were acting as if they
were trying to reconcile.
Both Valerie and Roger, Jr. were interviewed. Both children denied any sexual
abuse and both wanted to visit with father. Roger, Jr. reported being physically abused
by father, and having witnessed father hit mother, but stated that the abuse last occurred
approximately three years ago.
Section 300 petition and detention
On January 28, 2013, DCFS filed a section 300 petition pursuant to subdivisions
(a), (b), (d), and (j) alleging that the children were at risk due to father’s physical abuse of
Jessica and Roger, Jr., and his sexual abuse of Jessica. On the same date, the juvenile
court detained the children from father and released the children to mother. The matter
was continued to April 2, 2013, for the adjudication hearing.
Jurisdiction/disposition and interim reports
A dependency investigator interviewed the family again on March 14, 2013.
Jessica restated the sexual abuse allegations but this time she denied that father
penetrated her. She said: “It was just like a lot of touching like over my clothes. It was
on my lower body. When I started waking, waking up that’s when he stopped. I woke
up. He was just walking away.”
The dependency investigator read Jessica her initial statements to the social
worker. Jessica stated, “I didn’t know the difference. I asked my mom what the
difference was between rape and molestation.” Jessica acknowledged telling the social
worker that it was rape, but said that after mother explained the difference to her, she
realized it was not rape. Jessica also denied being digitally penetrated.
5
When Roger, Jr. was interviewed, he denied ever witnessing or experiencing any
physical abuse in the home. He also denied any knowledge of Jessica being sexually
abused by father or anyone else. The dependency investigator was unable to interview
Valerie because she was at school.
Mother was also interviewed on March 14, 2013. Mother stated that Jessica
reported that father hit her once, and she saw father hit Roger, Jr. once when he was little.
With respect to the sexual abuse allegations, mother said that father “tried to penetrate. It
was mostly molestation, but not rape. He tried to digitally penetrate her with his finger
and penis.” Mother stated that Jessica disclosed the molestation after she and father
separated in 2011. Mother said that she obtained the restraining order later after father
threatened and harassed her. Mother disclosed that she was diagnosed with depression
and bipolar disorder and was taking medication and receiving treatment for her
conditions.
Father continued to deny the allegations. He confirmed that he once hit Jessica in
a dispute over a cell phone. He also acknowledged hitting Roger, Jr. once with an open
hand by his ear.
DCFS concluded that while it was evident that father had sexually abused Jessica,
it was “unclear if [father] forcibly raped the child and/or digitally penetrated her vagina.
Jessica’s statements to [the social worker], the forensic interview, police and this
[investigator] are inconsistent as to being raped or penetrated by [father’s] penis and/or
finger.” The investigator also wrote:
“It is unclear why Jessica is unable to consistently state what took
place when [father] was sexually abusing her. She is able to state that he
was touching her, but it is not certain as to him penetrating her or not with
his penis and/or finger. She does state that she felt his penis on her vagina.
This may be due to her inability to articulate exactly what happened out of
her own naivety, fear, or repressed memories.”
DCFS recommended that the juvenile court declare the children dependents of the
court pursuant to section 300, subdivisions (b), (d), and (j), and offer father reunification
services.
6
In a report dated April 2, 2013, DCFS advised that Jessica’s therapy had been
terminated due to inconsistent attendance and at mother’s and Jessica’s request. The
therapist reported that mother did not want to deal with the rape, and that Jessica felt
guilty and did not want anyone to know about it. Jessica did not want father to go to jail
nor did she want her siblings have to see father in jail.
An interim review report was filed on September 4, 2013. DCFS again referenced
Jessica’s uncertainty as to the details of her sexual abuse. DCFS speculated: “This may
be due to her inability to articulate exactly what happened out of her own naivety, fear,
and/or feelings of guilt, denial, embarrassment or simply wanting to forget or even being
influenced by mother to have this case closed.”
Jurisdictional/dispositional hearing
The combined jurisdictional/dispositional hearing was conducted on November
20-21, 2013. The court admitted DCFS’s reports into evidence. Father’s counsel called
the dependency investigator as a witness. The investigator admitted that Jessica’s
statements to various professionals contained inconsistencies. She believed that Jessica
was sexually abused, but was unable to articulate exactly what happened.
Father’s counsel indicated that he intended to call Jessica as a witness. The court
continued the case to the next day. However, on November 21, 2013, father’s counsel
did not call Jessica as a witness. Instead, he rested and requested that the court proceed
to closing arguments.
In argument father’s counsel questioned Jessica’s credibility given her inconsistent
statements. He further argued that even if the court believed Jessica’s statements, there
was no evidence that her siblings were at risk. Father’s counsel asked the court to
dismiss the petition in its entirety.
Jessica’s counsel asked the court to dismiss the physical abuse allegations and
sustain the sexual abuse allegations. However, Jessica wanted to be dismissed from the
petition entirely. Roger, Jr. and Valerie’s counsel requested that the court dismiss the
physical abuse counts and sustain the sexual abuse counts.
7
The juvenile court dismissed the counts in the petition alleging physical abuse and
sustained the counts alleging sexual abuse of Jessica. The court stated: “I think that
Jessica is credible. I think it’s understandable that there would be some variation given
the nature of the allegations.” The court found that there did not need to be a current risk
in order to sustain a petition pursuant to section 300, subdivision (d). The court declared
the children dependents of the court and terminated jurisdiction over Jessica. The court
removed Roger, Jr. and Valerie from father, maintained them with mother, and ordered
DCFS to provide father with family reunification services and mother with family
maintenance services.
Appellate proceedings
On December 11, 2013, father filed his notice of appeal from the findings and
orders of the court on November 21, 2013.
On February 28, 2014, father filed a motion to remand for discovery re potential
IAC claim and/or petition for writ of habeas corpus (motion to remand). On the same
day, father filed his opening brief.
On March 6, 2014, father filed a supplemental declaration of Eliot Lee Grossman,
Esq., in support of motion to remand with exhibits.
On March 14, 2014, DCFS filed an opposition and answer to father’s motion to
remand.
On March 19, 2014, father filed a second supplemental declaration of Eliot Lee
Grossman, Esq., in support of motion to remand.
On March 19, 2014, this court denied father’s motion.
On May 20, 2014, father filed his reply brief, which included a request for
reconsideration of our denial of his motion to remand. On the same date, father filed a
third supplemental declaration of Eliot Lee Grossman, Esq. in support of request for
reconsideration of motion to remand.
8
DISCUSSION
I. Substantial evidence supports the juvenile court’s findings regarding sexual
abuse of Jessica
Father’s first argument is that the juvenile court’s decision to sustain the sexual
abuse allegations is not supported by substantial evidence. He argues that no reasonable
fact finder could possibly find Jessica’s inconsistent and contradictory statements to be
credible, especially since even DCFS could not determine the particulars of the alleged
abuse.
When reviewing a factual finding for substantial evidence, we do not reweigh the
evidence or substitute our judgment for that of the fact finder. (People v. Escobar (1996)
45 Cal.App.4th 477, 481.) “We have no power to judge the effect or value of the
evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve
conflicts in the evidence or the reasonable inferences which may be drawn from that
evidence. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) “‘“Conflicts
and even testimony which is subject to justifiable suspicion do not justify the reversal of
a judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.]”’” (People v. Mayberry (1975) 15 Cal.3d 143, 150.)
Jessica’s statements to her therapist and the social worker constitute substantial
evidence of the sexual abuse. “The testimony of a single witness is sufficient to uphold a
judgment [citation].” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)4 The juvenile
court was entitled to find Jessica’s statements to be credible. Furthermore, the juvenile
court also considered the testimony of the dependency investigator, who indicated that
she had interviewed close to 100 victims of sexual abuse and had encountered victims
4 Although Jessica did not testify in court, her statements contained in DCFS’s
reports are “admissible and is sufficient to support a finding that the child is described by
section 300.” (Cal. Rules of Court, rule 5.684(c).) There is no indication that father
objected at any time to the admission of this evidence.
9
whose stories contained inconsistencies. In her opinion, the inconsistencies in Jessica’s
story were understandable.
“It is not an appellate court’s function . . . to redetermine the facts. [Citation.]”
(In re Sheila B., supra, 19 Cal.App.4th at p. 200.) Father is essentially asking this court
to substitute its judgment for that of the juvenile court. We are not permitted to do so.
Substantial evidence supports the juvenile court’s conclusion that father sexually abused
Jessica, therefore the finding must be affirmed.
II. Substantial evidence supports the juvenile court’s findings that Jessica’s siblings
are at risk of abuse
Father next argues that, even if it is to be assumed that there was sexual abuse of
Jessica, the juvenile court’s finding that father’s biological son and daughter are at risk of
abuse is not supported by substantial evidence. Father argues that the juvenile court’s
finding that Roger, Jr. and Valerie are at substantial risk of sexual abuse is unsupported
by any evidence and is the product of mere speculation and conjecture. Father cites In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393 for the proposition that “‘inferences
that are the result of mere speculation or conjecture cannot support a finding [citations].’
[Citation.]” (Original italics.) Father argues that there is no evidence that a man who has
had sex with a 14-year-old girl would engage in such behavior with his 12-year-old son
and nine-year-old daughter.
We have no trouble determining that sufficient evidence supported the juvenile
court’s determination that Valerie was at substantial risk of harm. Father attempts to
differentiate between the two girls by pointing out that Jessica was not his biological
child. However, that distinction is not persuasive under the circumstances of this case,
where father had taken on a paternal role with Jessica since she was a baby. Father
stated, “I’ve been with [Jessica] since she was three months old so I pretty much raised
her.” Father also informed the dependency investigators that he and his family loved
Jessica as if she were his biological daughter. Father’s relationship with Jessica was not
distinguishable from his relationship with Valerie, and the juvenile court did not err in
10
determining that then 10-year-old Valerie was at substantial risk of the same type of
abuse that Jessica suffered.
The analysis is different as to father’s son due to gender. The Supreme Court
recently reviewed the cases in which dependency jurisdiction was upheld over children
whose siblings had been sexually abused where they were of the opposite gender. The
high court held that a father’s severe sexual abuse of his own child is sufficient to support
dependency jurisdiction over all siblings regardless of gender. (In re I.J. (2013) 56
Cal.4th 766, 780 (I.J.).)5
In I.J., the Supreme Court addressed the issue of whether a father’s sexual abuse
of his daughter supported a further determination that the father’s sons were also
dependents of the court, where there was no evidence that the father sexually abused the
sons and they were unaware of their sister’s abuse before the proceeding began. (I.J.,
supra, 56 Cal.4th at p. 770.)
The court noted that “section 300 does not require that a child actually be abused
or neglected before the juvenile court can assume jurisdiction.” (I.J., supra, 56 Cal.4th at
p. 773.) Instead, it requires only a “substantial risk” that the child will be abused or
neglected. (Ibid.) The high court focused on subdivision (j) of section 300, which allows
a juvenile court to take jurisdiction of a child where (1) the child’s sibling has been
abused or neglected as defined in specified other subdivisions and (2) there is a
substantial risk that the child will be abused or neglected as defined in those subdivisions.
As in the case before us, the first requirement was met as to all of the siblings.
The issue was whether the second requirement was met, specifically as to the father’s
male children. (I.J., supra, 56 Cal.4th at p. 774.) In determining that it was, the high
court focused on the language of section 300, subdivision (j), which permits the court to
consider the circumstances surrounding, and the nature of, the father’s sexual abuse of
the sibling. The I.J. court held that the statute implies that the more egregious the abuse,
5 The I.J. court expressly disapproved two of the cases cited by father in his opening
brief: In re Jordan R. (2012) 205 Cal.App.4th 11 and In re Maria R. (2010) 185
Cal.App.4th 48. (I.J., supra, 56 Cal.4th at pp. 780-781.)
11
the more appropriate for the juvenile court to assume jurisdiction over the siblings. (Id.
at p. 778.) The Supreme Court found that the court below had appropriately described
the father’s sexual abuse of his daughter as “‘aberrant in the extreme: he sexually abused
his own daughter “by fondling the child’s vagina and digitally penetrating the child’s
vagina and forcefully raped the child by placing the father’s penis in the child’s
vagina.”’” (Ibid.) Jessica’s allegations against father are sufficiently similar to warrant
the same treatment.
The high court pointed out that another relevant factor in the analysis is “the
violation of trust shown by sexually abusing one child while the other children were
living in the same home and could easily have learned of or even interrupted the abuse.”
(I.J., supra, 56 Cal.4th at p. 778.) Sexual abuse constitutes “‘a fundamental betrayal of
the appropriate relationship between the generations . . . [s]uch misparenting is among the
specific circumstances which may justify state intervention, including an interruption of
parental custody. [Citation.]’ [Citation.]” (Ibid.) Roger, Jr. was living in the same home
as Jessica at the time of father’s sexual abuse of Jessica. Roger, Jr. was vulnerable to the
type of “misparenting” that the I.J. court described, and was therefore at risk of harm.
Father argues that his abuse of Jessica was not “prolonged,” as it was found to be
in I.J. (I.J., supra, 56 Cal.4th at p. 778.) In addition, father argues that it is impossible to
determine whether the abuse was egregious or not, since it is impossible to determine
what actually happened due to Jessica’s inconsistencies.
We find these attempts to distinguish I.J. to be unpersuasive. It is true that the I.J.
court found that “[t]he serious and prolonged nature of father’s sexual abuse of his
daughter under these circumstances supports the juvenile court’s finding that the risk of
abuse was substantial as to all the children.” (I.J., supra, 56 Cal.4th at p. 778.) However,
the I.J. court did not dictate a requirement that sexual abuse be prolonged before the
juvenile court is authorized to take jurisdiction over the victim’s siblings. Instead, the
high court made it clear that the juvenile court must consider “‘the totality of the
circumstances of the child and his or her sibling in determining whether the child is at
substantial risk of harm.’” (Id. at p. 774.) “‘The provision thus accords the trial court
12
greater latitude to exercise jurisdiction as to a child whose sibling has been found to have
been abused than the court would have in the absence of that circumstance.’ [Citation.]”
(Ibid.) Here, while the evidence did not show “prolonged” abuse, it showed the same
type of aberrant behavior which the Supreme Court described as a “fundamental
betrayal” of the appropriate relationship between father and the children. (Id. at p. 778.)
Nor do we agree that father’s behavior is indeterminable. The juvenile court
sustained the allegations that father “sexually abused the child Jessica, by forcibly raping
the child, by placing the . . . father’s penis in the child’s vagina. The . . . father digitally
penetrated the child and fondled the child’s vagina and breasts.” There is no indication
that these allegations were ever amended in light of Jessica’s inconsistencies. These
sustained allegations describe conduct that is sufficiently egregious to meet the test set
forth in I.J.
As the Supreme Court pointed out, “‘The juvenile court is mandated to focus on
“ensur[ing ] the safety, protection, and physical and emotional well-being of children
who are at risk” of physical, sexual or emotional abuse. [Citation.]’” (I.J., supra, 56
Cal.4th at p. 780.) That is what the court did here in taking jurisdiction of Valerie and
Roger, Jr. The court’s assumption of jurisdiction does not mean father loses all parental
rights. Taking jurisdiction is a means to protect Jessica’s siblings, and under the analysis
in I.J., the court appropriately did so here.6
6 Father argues that due to the absence of evidence of any risk to father’s biological
children, the juvenile court should have dismissed the petition and litigated the custody
and visitation issues in the family law court. In support of this argument, father cites In
re A.G. (2013) 220 Cal.App.4th 675 (A.G.). The A.G. court determined that the juvenile
court erred in sustaining a section 300 petition where there were no allegations against
the father and the father was, and had always been, capable of properly caring for the
children. (Id. at pp. 683, 686.) The matter before us is distinguishable. Here, there were
allegations that father abused the children and that mother had failed to protect the
children. In contrast to A.G., the juvenile court maintained jurisdiction over the children
and both mother and father were ordered to participate in services.
13
III. Father has failed to demonstrate that his trial counsel acted in a manner less
than that expected of a reasonably competent attorney
Father’s final argument is that his trial counsel subjected him to ineffective
representation by his failure to obtain the videotape of Jessica’s forensic interview;
failure to obtain the social worker’s original notes of Jessica’s forensic interview; failure
to call the social worker, Jessica, or mother to testify as witnesses during the
jurisdiction/disposition hearing; and by his “ineptly-executed” cross-examination of the
dependency investigator.
A. Applicable law and standard of review
All parties who are represented by counsel in dependency proceedings are entitled
to competent counsel. (§ 317.5, subd. (a).) In order to prevail on a claim of ineffective
assistance of counsel, a parent must establish: (1) that his counsel failed to act in a
manner to be expected of a reasonably competent attorney practicing in the field of
juvenile dependency law; and (2) that the claimed error was prejudicial. (In re Kristin H.
(1996) 46 Cal.App.4th 1635, 1667-1668.) To meet this second requirement, the parent
must show “that it is ‘reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.’ [Citation.]” (Id. at p. 1668.)
In other words, the parent must show “‘a probability sufficient to undermine confidence
in the outcome.’ [Citation.]” (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.)
There is a strong presumption that counsel’s conduct was within the wide range of
reasonable assistance. (In re Elizabeth G. (2001) 88 Cal.App.4th 496, 503.) In
particular, “if trial counsel’s omissions stemmed from an informed tactical choice that a
reasonably competent attorney might make, the conviction must be affirmed.
[Citations.]” (Ibid.)
B. Father’s arguments
Father argues that, by failing to call Jessica as a witness at the hearing, father’s
counsel forfeited the opportunity to subject her conflicting statements to adversarial
testing. Father further argues that this could not have been a tactical decision since his
trial counsel never obtained nor reviewed the tape of Jessica’s forensic interview or the
14
original notes of the social worker who observed the interview. Similarly, father argues,
it could not have been a tactical decision not to call the social worker who observed the
interview.
Further, father claims his counsel’s cross-examination of the dependency
investigator fell below the level of reasonable competence because counsel failed to press
the investigator on Jessica’s statement that she was not concerned about the safety of her
siblings in father’s care, and on her previous statement that due to Jessica’s conflicting
versions, DCFS could not determine what actually occurred during the sexual abuse
incident.
We discuss father’s assertions of incompetence below.
C. Father has not shown conduct falling below that which is to be expected of a
reasonably competent attorney
1. Failure to obtain video and notes of forensic interview
The evidence provided by father in support of his motion to remand shows that
father’s trial counsel’s failure to obtain the forensic interview of Jessica was a strategic
decision. According to the email from father’s counsel’s office dated March 4, 2014,
father’s counsel “felt that the myriad of inconsistencies in the various reports would be
the best avenue to argue that the abuse didn’t occur.” Father’s counsel was aware of the
contents of the forensic interview given that it was summarized in the detention report.
After Jessica changed the details of her story, the social worker formally reported that it
was now “‘unclear what the sexual abuse consisted of.’” Father’s counsel felt that
DCFS’s admission as to the uncertainty of Jessica’s story was the best way to show how
her story changed over time. If father’s counsel requested the copy of the forensic
interview and notes, he risked revealing to DCFS and the court that the statements were
not as inconsistent as DCFS reported. From a strategic standpoint, father’s counsel could
have reasonably believed that DCFS’s admission of the inconsistencies in Jessica’s story
was the strongest evidence of such inconsistencies. Father’s counsel explained in a
declaration dated March 17, 2014, that he did not want to make the video of the forensic
interview “the subject of discovery and risk the possibility the Court may find her to be a
15
sympathetic and credible victim based on her appearance and demeanor in that
interview.”
2. Failure to call Jessica as a witness
The email from father’s counsel provided in support of father’s motion to remand
also addressed father’s counsel’s decision not to call Jessica as a witness at the
jurisdiction/disposition hearing. Again, it shows a strategic decision not to call her.
Father’s counsel was concerned that by calling the minor, he would be giving her the
chance to rehabilitate her story. He did not want to “give her the opportunity to
straighten out her prior wildly inconsistent statements.” In addition, father’s counsel
though that Jessica would be a sympathetic witness. Father’s counsel noted a tendency
for a sympathetic attitude towards children in the juvenile court. Father’s counsel
explained that calling Jessica to elicit even more inconsistencies was unnecessary and
would “only create an opportunity for County Counsel and Minor’s Counsel to
rehabilitate these inconsistencies and give her the credibility she was lacking in the
reports alone.” Father’s counsel indicated that if the court and county counsel were not
going to give Jessica the chance to straighten out her stories, “he wasn’t going to do it for
them.”
3. Failure to call original social worker on the case
Father argues that his counsel should have called the original social worker in the
case to expose any inconsistencies between her notes from Jessica’s forensic interview
and the interview itself. However, father is only speculating that any such
inconsistencies exist. Again, father’s counsel could well have concluded that the social
worker’s testimony may have helped resolve the inconsistencies, bolster Jessica’s story,
and generate more sympathy for the child. The reports provided by DCFS acknowledged
inconsistencies in Jessica’s story. Father’s counsel could well have determined that it
would be detrimental to father’s case to call another social worker who believed Jessica
and might serve to convince the court of the veracity of Jessica’s allegations.
16
4. Failure to call mother as a witness
Father argues that father’s counsel should have called mother as a witness because
she could have been cross-examined about a number of inconsistent statements she made
to DCFS and to support a theory that Jessica’s allegations came as a result of mother and
father’s contentious relationship. Again, we find that father’s counsel’s decision not to
call mother was likely strategic. Mother could have provided persuasive testimony that
the allegations were not the result of any friction between her and father. Furthermore,
mother would likely have provided persuasive testimony of her belief in the veracity of
Jessica’s accusation. From father’s counsel’s perspective, he likely did not want another
witness who was sympathetic to Jessica and who would serve to bolster Jessica’s
credibility.
5. Trial counsel’s cross-examination of the dependency investigator
Finally, father argues that his trial counsel’s cross-examination of the dependency
investigator (DI Flores) fell below the standard of care for a reasonably competent
attorney. Father claims his counsel failed to impeach DI Flores on two critical points:
first, her comment that she could not recall whether or not Jessica expressed concern for
her younger siblings; and second, her statement that she had previously testified that it
was her opinion that father raped Jessica, when in fact DI Flores had revealed in the
jurisdiction/disposition report that, due to the inconsistencies in Jessica’s statements, she
could not determine exactly what happened during the sexual abuse incident.
Again, these omissions could well have been tactical decisions. Certainly
Jessica’s statement that she had no concerns for her siblings could have cut both ways:
while it could suggest that the accusations were false, it could also show that Jessica’s
sympathy for her siblings, and their relationship with their father, was an overriding
concern for Jessica. There was ample evidence that Jessica felt guilty reporting father’s
conduct. She did not want to pursue criminal charges against father; she did not want her
siblings to have to see their father in jail; her therapist reported that mother did not want
to deal with the rape and Jessica felt guilty and did not want anyone to know about it.
These facts reveal Jessica’s conflicting emotions. A line of questioning which
17
highlighted Jessica’s concern for her siblings could have garnered more sympathy for her
as a confused victim, and produced results damaging to father’s case.
In addition, Jessica’s internal conflicts about reporting the abuse, and in particular
her sympathy for her half-siblings -- father’s biological children -- could help to explain
why she changed her story over time, making the allegations less severe. Trial counsel
may not have wanted to open the door to reveal Jessica’s concern for her siblings and
thereby help explain Jessica’s inconsistencies. For this reason, trial counsel’s failure to
pursue this avenue of questioning did not fall below the standard of care for a reasonably
competent attorney.
Nor did trial counsel’s failure to attempt to pin down DI Flores regarding her
statement that she previously testified that it was her opinion that father raped Jessica fall
below the relevant standard of care. Whether or not DI Flores previously expressed her
opinion, it was a powerful opinion for the court to consider given DI Flores’s close
contact with the family. Once DI Flores gave her opinion, it was a perfectly appropriate
reaction for father’s counsel to move on and not emphasize that opinion or give DI Flores
the opportunity to reiterate it.
D. Father has not shown a reasonable probability of a more favorable outcome
Father has failed to establish that any of father’s trial counsel’s tactical decisions
fell below the relevant standard of care. In addition, father has failed to show prejudice.
It was already known that there were inconsistencies in Jessica’s description of
father’s alleged abuse. Obtaining her forensic interview and calling her as a witness was
not likely to reveal even more inconsistencies. On the contrary, it was more likely that
the video, and Jessica herself, would garner sympathy and might even help to explain the
inconsistencies. In short, father has not made a showing that, in the absence of these
tactical decisions, he would have achieved a better outcome.
Further, father has not shown that examining the social worker, or mother, or
further pressing DI Flores on certain points, would have led to a more favorable result.
As set forth above, father’s counsel’s tactical decisions during trial were sound. There
18
was ample reason to fear that going down these paths of questioning would have elicited
damaging testimony.
In sum, the record reveals that father’s trial counsel made sound strategic
decisions, and father received competent representation.
Father’s request for reconsideration of our denial of his motion to remand,
contained in father’s reply brief, is denied.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
ASHMANN-GERST
19