In re M.W. CA1/1 ( 2022 )

Filed 7/29/22 In re M.W. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re M.W., a Person Coming Under
the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL A162849
SERVICES AGENCY,
(Alameda County
Plaintiff and Respondent, Super. Ct. No. JD03155201)
v.
C.W.,
Defendant and Appellant.
C.W. (mother) appeals from an order taking jurisdiction over her child,
M.W. (minor), and removing minor from her custody. Mother asserts the
court erred by admitting an expert report into evidence when the expert was
unavailable for cross-examination. She further asserts the order removing
minor from her custody was not supported by substantial evidence. We
disagree and affirm the order.
I. BACKGROUND
The Alameda County Social Services Agency (Agency) filed a petition
under Welfare and Institutions Code1 section 300, subdivision (c), alleging
All statutory references are to the Welfare and Institutions Code
1
unless otherwise noted.
minor suffered and was at substantial risk of harm due to mother subjecting
minor to numerous investigations and examinations regarding alleged sexual
abuse with no evidence or findings that any sexual abuse occurred.
Prior to the filing of the petition, mother had reported minor’s father
(father) approximately eight times to the Agency and the police department
for various issues, such as general neglect, maltreatment of minor, a custody
violation, physical abuse, and sexual abuse. These reports resulted in police
investigations, three Child Abuse Listening, Interviewing, and Coordination
center (CALICO) interviews, and a sexual assault response team (SART)
examination. None of the reports were substantiated, and the multiple
investigations, interviews, and examinations did not reveal any findings of
sexual abuse. Minor did, however, make some statements that could be
interpreted as mother coaching minor to report abuse or otherwise reject
father. Minor also denied any sexual or physical abuse during interviews
with the Agency.
Dr. James Crawford-Jakubiak, who conducted minor’s SART exam at
Children’s Hospital Oakland, testified at a family court hearing. 2 He noted it
was incredibly uncommon for a sexual predator to continue such conduct
after police and other professionals’ involvement, yet mother had made
ongoing allegations for multiple years and informed him she believes father
is continuing to sexually abuse minor. Dr. Crawford-Jakubiak stated “he has
no doubt in his mind that [minor] is either being sexually abused by the
father or emotionally abused by the mother . . . . [I]f [minor] is being
emotionally abused by the mother, there is/would be unbelievable emotional
2The parents had been involved in contentious proceedings since 2015
regarding custody and restraining orders in the Family Court Division of the
Alameda County Superior Court (family court).
2
and psychological damage.” Following the medical examination, however, Dr.
Crawford-Jakubiak made no findings of sexual abuse, although he noted that
does not indicate such abuse did not occur.
Also, during this time, Victoria Coad, Ph.D. was appointed as a “3118[3]
Sexual Assault Evaluator” by the family court as part of those proceedings
due to the ongoing allegations of sexual abuse. Dr. Coad stated she was
unable to identify any evidence of sexual abuse apart from allegations made
by the maternal family. She notes mother was instructed to stop taking
photos and videos of minor, but continued to do so. She also stated mother
claimed father was fired from his job at a church for sexually inappropriate
conduct, but Dr. Coad confirmed with the church this was untrue.
The Agency’s initial hearing report concluded mother’s insistence that
father sexually abused minor, despite multiple forensic interviews and exams
finding no evidence of abuse, constituted emotional abuse to minor. The
report noted mother’s conduct and beliefs were preventing minor and father
from having a normal parent/child relationship, and minor has expressed
sadness and confusion as to why she cannot visit father. Minor “is always
excited” to see her father during visitation and cries when it is time to leave
because she wants longer visits. The Agency noted during a child family
team meeting that mother and the maternal family were focused on the
allegations of sexual abuse, and it was “difficult to come up with a plan to
address” the concerns of emotional abuse because mother lacked insight into
the situation.
Mother filed a multipage response to the Agency’s report, which took
issue with much of the report, such as disputing she requested certain
interviews, arguing she was instructed to take photographs and videos of
3 Family Code section 3118.
3
minor, asserting father prevented minor from enrolling in preschool and
therapy, and stating minor’s reports of sexual abuse and her heightened
reactions to visiting father decreased after he was limited to supervised
visits. Mother also filed a demurrer to the petition, arguing the allegation
against her was conclusory and vague.
The Agency recommended the court find the petition true. In its
subsequent disposition report, it recommended minor remain with mother,
and mother receive family maintenance services to ensure she complies with
court orders and does not engage in coaching or exposing minor to invasive
investigations or examinations. The Agency also recommended father receive
family reunification services to support his and minor’s bonding and
transition to increased visitation.
Prior to a hearing on the pending issues, the parties received Dr. Coad’s
report (the 3118 report) and mother withdrew her demurrer. The parties also
received a custody and access evaluation (custody evaluation) prepared by
Dr. Cheryl Jacques, who had been appointed by the family court as a “730[4]
evaluator.”
The Agency subsequently filed an amended petition expanding on the
statements set forth in the original petition. The amended petition further
asserted minor was at substantial risk of harm due to mother coaching minor
to make false allegations about sexual abuse by father, isolating minor from
the paternal family, and instructing minor to reject father with the message
that he is bad or dangerous. The amended petition referenced the findings in
both the 3118 report and the custody evaluation.
The Agency filed a detention report, noting the 3118 report and the
custody evaluation “brought additional information and increased safety
4 Evidence Code section 730.
4
concerns to light, which places the minor . . . at substantial risk of suffering
serious emotional damage if she continues to reside in the care of [mother].”
After a contested detention hearing, the court ordered minor detained. She
was placed with her paternal grandparents.
In the subsequent jurisdiction/disposition report, the Agency
recommended the court find the amended petition true, give father custody of
minor with family maintenance services, and order family reunification
services for mother. The report noted minor appeared happy and comfortable
with her paternal grandparents, and she stated visits with both parents were
going well. The report stated, based on its lengthy investigation, the 3118
report, and the custody evaluation, “it is the Agency assessment that the
allegations of sexual abuse has [sic] been false” and resulted in minor being
alienated from father and minor’s paternal relatives. The report further
noted the coaching had an emotional impact on minor, as she “is quick to
identify a loaded question when it pertains to her parents” and is “reluctant
to answer questions and is confused about who she is supposed to align with
or where she is supposed to be.” The report recounts the social worker’s
discussions with mother, who continued to express concern that father will
abuse minor if he is allowed unsupervised contact, stated the allegations
against her of emotional abuse are untrue, and asserted the 3118 report
contained erroneous information.
The Agency subsequently filed an addendum report, restating the same
recommendation contained in the prior jurisdiction/disposition report. The
report noted minor’s therapist was working with minor on truth-telling,
separation anxiety, and some regressive behaviors. Minor’s therapist
expressed concern regarding future coparenting and stated the importance of
both parents having the same rules, boundaries, and discipline for minor.
5
The social worker also spoke with mother’s therapist, who stated he was
working with mother on posttraumatic stress disorder and an “ ‘irrational
belief system,’ ” which he believed would treat the issues identified in the
3118 report and the custody evaluation. Mother’s therapist believes mother
has gained some insight into her actions, but believes she was not
intentionally harming minor but rather trying to protect her. Mother’s
visitation with minor was reportedly appropriate and going well.
The juvenile court conducted a multiday contested jurisdiction and
disposition hearing. Numerous witnesses testified, including Dr. Jacques,
Dr. Crawford-Jakubiak, and the social worker. Dr. Crawford-Jakubiak
repeated his belief that minor was either being sexually abused by father or
emotionally abused by mother, and “[t]hey can’t both be false.” Dr. Jacques
testified she believed minor suffered emotional abuse from mother. The
social worker testified mother failed to take responsibility, was unable to
explain the impact on minor, and could not explain how she was addressing
these concerns in therapy. Mother, maternal grandmother, and an employee
for the maternal grandparents provided testimony focused on the alleged
sexual abuse by father. The court admitted into evidence the Agency reports,
the 3118 report, and the custody evaluation.
The court subsequently found the amended petition true. In assessing
whether minor was subjected to sexual abuse or emotional abuse, the court
concluded minor had experienced emotional abuse. It further found mother
had made insufficient progress toward resolving the issues and was “still
committed to her script” of father’s sexual abuse. The court placed minor
with father and ordered family maintenance services. Mother timely
appealed.
6
II. DISCUSSION
On appeal, mother raises two issues. First, she asserts the court erred
in allowing the 3118 report into evidence because its author, Dr. Coad, was
unavailable for cross-examination. Second, mother asserts substantial
evidence did not support the juvenile court’s order removing minor from her
custody. We address each argument below.
A. The 3118 Report
At the beginning of the jurisdiction/disposition hearing, the juvenile
court admitted the 3118 report into evidence. However, during the course of
the hearing—and after Dr. Coad provided testimony on direct examination—
she became unavailable to complete the cross-examination by mother’s
counsel due to a serious illness. Following argument of the parties, the court
concluded the 3118 report would remain admitted into evidence, but struck
Dr. Coad’s testimony. Mother assets the court erred by not also striking the
3118 report. We disagree.
1. Scope of Mother’s Appeal
As an initial matter, the Agency asserts mother is not appealing the
court’s jurisdiction decision, but only the dispositional findings and orders.
The Agency notes any right to cross-examination applies only to the
jurisdiction hearing. Mother disputes this interpretation of her appeal and
contends she challenged use of the 3118 report as to both the jurisdiction and
disposition findings.
The Agency is correct that mother’s brief does not specifically argue the
court erred in asserting jurisdiction over minor. However, we also note the
court conducted a joint jurisdictional and dispositional hearing, and the 3118
report was admitted into evidence as part of that joint hearing. Mother’s
notice of appeal states she is appealing from “All findings and orders made by
7
the court . . . , including but not limited to the Jurisdiction Disposition
hearing.” Likewise, her opening brief notes section 395 “authorizes this
appeal from findings and orders made under sections 360 and 300.”5 (Italics
added.) And mother’s opening brief argues the Agency witnesses testified
they relied on the 3118 report to file the amended petition against Mother.
We need not resolve this dispute because even assuming mother’s
appeal properly challenges the court’s admission of the 3118 report in
connection with its jurisdictional findings, we conclude for the reasons set
forth below that the court did not err in doing so.
2. Admissibility
Family Code section 3110 et seq. sets forth guidelines for court-
appointed investigators and evaluators. Family Code section 3118 requires a
court to obtain an evaluation, investigation, or assessment in cases involving
child sexual abuse allegations, and the family court appointed Dr. Coad
pursuant to that section.6
Family Code section 3118 does not contain an express requirement that
an evaluator or investigator must testify about the contents of his or her
report, and mother has not identified any authority stating a section 3118
evaluator must be subject to cross-examination. However, Family Code
section 3115 provides: “A statement, whether written or oral, or conduct
shall not be held to constitute a waiver by a party of the right to cross-
examine the court-appointed investigator, unless the statement is made, or
the conduct occurs, after the report has been received by a party or the
5 Section 300 addresses jurisdictional findings.
6 Mother also argues experts appointed by the court are required to
testify under Evidence Code section 730. However, Dr. Coad was appointed
under Family Code section 3118, not Evidence Code section 730.
8
party’s attorney.” (Accord, 33 Cal.Jur.3d (May 2022 update) Family Law,
§ 1022 [“Where the court has directed a custody investigation, due process of
law requires that each party receive a copy of the report, be given an
opportunity to cross-examine the investigator and to subpoena and examine
persons whose hearsay statements are contained in the report, and be
permitted to introduce evidence by way of rebuttal.”].)
The Agency contends the court did not abuse its discretion in admitting
the 3118 report into evidence because it was previously admitted without
objection—albeit before Dr. Coad’s unavailability—and the court properly
found the report admissible under section 355.
We need not determine whether Family Code section 3115 required Dr.
Coad to be available for cross-examination in order for her report to be
admissible. Even if we assumed Family Code section 3115 imposed such a
requirement, we conclude any error in the report’s admission was harmless.7
(In re Christopher L., supra, 56 Cal.App.5th at p. 1177 [“even errors of a
constitutional dimension can be subject to a harmless error analysis in
dependency proceedings, given the unique nature of such proceedings, unless
it is impossible to assess prejudice without engaging in speculation”].)
7 “To assess whether an error in dependency proceedings is harmless,
some Courts of Appeal have applied a Chapman [v. California (1967)
386 U.S. 18] ‘harmless beyond a reasonable doubt’ standard, and at least two
Supreme Court cases have embraced the [People v.] Watson [(1956) 46 Cal.2d
818] more probable than not standard. [Citation.] Watson requires a
‘reasonable probability of a more favorable outcome,’ absent the challenged
errors, in order for an error to warrant reversal. [Citations.] Under
Chapman, by contrast, ‘the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.’ ” (In re Christopher L. (2020)
56 Cal.App.5th 1172, 1187–1188.) We conclude any error would be harmless
under either standard.
9
First, key factual findings and conclusions from the 3118 report were
contained within the jurisdiction/disposition report filed by the Agency. At a
jurisdictional hearing “[a]ny legally admissible evidence that is relevant to
the circumstances or acts that are alleged to bring the minor within the
jurisdiction of the juvenile court is admissible and may be received in
evidence.” (§ 355, subd. (a).) Section 355, subdivision (b) allows a court to
admit and make a finding of jurisdiction based on a social study and the
hearsay evidence contained therein. While the preparer of the social study
must be available for cross-examination, the statute does not impose such a
requirement for hearsay contained within the social study. (§ 355, subds. (b),
(b)(2).) Nor does the code require that hearsay statements be struck if the
declarant is not available for cross-examination. Section 355 only provides
that an objection to “specific hearsay evidence” would preclude that evidence
from “be[ing] sufficient by itself to support a jurisdictional finding or any
ultimate fact upon which a jurisdictional finding is based” if no exception
applied. (§ 355, subd. (c)(1); see also Seiser & Kumli, Cal. Juvenile Courts
Practice and Procedures (2022) § 2.110[12][b] [“in most instances the hearsay
statements will be admitted despite the objection, but the juvenile court must
take the unavailability of the declarant as going to the weight to be given the
hearsay statements, particularly if they do not meet the criteria for one of the
exceptions”].) Section 355 also sets forth various exceptions to this general
rule and allows courts to rely on such hearsay despite objections. As relevant
here, hearsay evidence may be sufficient to support a jurisdictional finding if
the petitioner establishes the hearsay declarant is a psychiatrist,
psychologist, or marriage and family therapist. (§ 355, subd. (c)(1)(C); Pen.
Code, § 11165.7, subd. (a)(21).)
10
Here, the hearsay statements from the 3118 report, contained within
the jurisdiction report, fall within the exception of section 355,
subdivision (c)(1)(C) because Dr. Coad is both a licensed clinical psychologist
and a marriage and family therapist. As such, the court could properly rely
on these statements to support a jurisdictional finding—despite her
unavailability to testify. And the excerpts from the 3118 report contained in
the jurisdiction report are sufficient to support the court’s jurisdictional
finding.
Mother, relying on In re Stacy T. (1997) 52 Cal.App.4th 1415 (Stacy T.),
argues the right to cross-examine the social worker who prepared the
jurisdiction/disposition report also includes the right to cross-examine
individuals who prepared any attached reports.
We find Stacy T. distinguishable. That case involved two fact sheets
which contained “crucial facts” supporting “the decision to remove [the minor]
from appellant’s care.” (Stacy T., supra, 52 Cal.App.4th at p. 1425.) Those
fact sheets had been prepared by other social workers who were not present
at the settlement conference, while another social worker who prepared the
settlement conference report was present. (Id. at pp. 1424–1425.) The court
noted the fact sheets constituted a social study under section 281 8 and
California Rules of Court, rule 5.684(c),9 and the reports continued to meet
the definition of a social study despite being incorporated into the settlement
8 Section 281 states in relevant part: “The probation officer shall upon
order of any court in any matter involving the custody, status, or welfare of a
minor or minors, make an investigation of appropriate facts and
circumstances and prepare and file with the court written reports and
written recommendations in reference to such matters.”
9 California Rules of Court, rule 5.684 was previously numbered as rule
1450(c).
11
conference report. (Stacy T., at p. 1425.) Accordingly, the court concluded
the social workers who prepared the fact sheets were required to be available
for cross-examination. (Ibid.; accord, § 355, subd. (b)(2) [“The preparer of the
social study shall be made available for cross-examination upon a timely
request by a party.”].) Here, the report at issue is not a social study.
Accordingly, section 355 does not impose a right to cross-examination as was
the case in Stacy T. (See also In re Corey A. (1991) 227 Cal.App.3d 339, 346;
In re Vincent G. (2008) 162 Cal.App.4th 238, 243.)
Second, even if the court disregarded the 3118 report, mother has not
argued it would alter the court’s ruling. Specifically, mother does not contend
the jurisdictional finding would not be supported by a preponderance of the
evidence without the 3118 report.10 Mother has thus waived this argument.
(See Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296,
fn. 7 [“Issues not raised in the appellant’s opening brief are deemed waived or
abandoned.”].) In any event, we note the record contains other evidence that
could support a jurisdictional finding. Most notably, the record contains the
custody evaluation, which was based on extensive interviews, psychological
testing, observations, and review of case materials. In its analysis and
conclusions section, Dr. Jacques commented: “Both Dr. Coad and I believe as
a result of our separate investigations that [mother] has made false
allegations against [father]. Independently, the two evaluators in this case
have arrived at the same conclusion. The false allegations made by mother
against father put [minor] at risk.” The report further states in relevant
10The juvenile court’s jurisdictional finding that a minor is a person
described in the dependency statute must be supported by a preponderance of
the evidence. (In re A.G. (2013) 220 Cal.App.4th 675, 682.) We review such
findings for substantial evidence. (In re Isabella F. (2014) 226 Cal.App.4th
128, 137.)
12
part: “[Mother] has misquoted and misinterpreted people and events, using
or manipulating what information she has obtained to support her view of
father’s malevolence. In my opinion, [mother] has been malevolent in her
relentless drive to incriminate father, and she has exploited her daughter to
try to make this happen by coaching [minor] to make false statements about
her father’s sexual touching of her body.” In addition to the custody
evaluation, the record also contains information regarding (1) forensic
interviews with law enforcement and the CALICO center, which resulted in
“no findings/evidence of sexual abuse” against minor; (2) a SART examination
indicating “no evidence that any form of abuse took place” during visitation
between minor and father; (3) observed visitation and comments made by
minor to staff; and (4) interviews with the parents. Together, these other
materials provide ample support for the jurisdictional findings.
Similarly, the court did not err in considering the 3118 report when
making its dispositional findings. At the dispositional phase, “ ‘any relevant
evidence including hearsay shall be admitted pursuant to section 358,
subdivision (b) to help the court determine the child’s best interests.’ ” (In re
Madison T. (2013) 213 Cal.App.4th 1506, 1509.) “ ‘Before determining the
appropriate disposition, the court shall receive in evidence the social study of
the child made by the social worker, any study or evaluation made by a child
advocate appointed by the court, and other relevant and material evidence as
may be offered . . . .’ ” (Ibid.) While mother cites various authorities for the
general proposition that there is a right to cross-examination, she fails to cite
any authority in the dependency context supporting her position. Nor are we
aware of any. To the contrary, numerous courts have concluded the preparer
of any report is not required to testify as a prerequisite to admitting the
report in connection with disposition. (In re Vincent G. (2008)
13
162 Cal.App.4th 238, 243–244; see also J.H. v. Superior Court (2018)
20 Cal.App.5th 530, 536 [social service “reports are admissible regardless of
whether the authors are available for cross-examination”]; accord, Seiser &
Kumli, Cal. Juvenile Courts Practice and Procedures, supra, § 2.122 [social
study is admissible at disposition hearing even if the preparer is
unavailable].) Accordingly, the juvenile court did not err in admitting the
3118 report as part of the joint jurisdiction/disposition hearing.
B. Dispositional Order
Mother next argues the dispositional order removing minor from her
custody should be reversed because it was not supported by substantial
evidence. We disagree.
A child adjudged a dependent minor shall not be taken from the
physical custody of his or her parents unless the juvenile court finds by clear
and convincing evidence that there “is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being of the
minor if the minor were returned home, and there are no reasonable means
by which the minor’s physical health can be protected without removing the
minor from the minor’s parent’s . . . custody.” (§ 361, subd. (c)(1).) We review
a dispositional order removing a child from parental custody for substantial
evidence, keeping in mind the juvenile court was required to make its finding
based on clear and convincing evidence. (In re I.R. (2021) 61 Cal.App.5th
510, 520.) Removal “is a last resort, to be considered only when the child
would be in danger if allowed to reside with the parent. The law requires
that a child remain in parental custody pending the resolution of dependency
proceedings, despite the problems that led the court to take jurisdiction over
the child, unless the court is clearly convinced that such a disposition would
harm the child.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.)
14
At the dispositional hearing, the juvenile court found, “The evidence in
this case has demonstrated that the mother, for whatever reasons, is still
committed to her script . . . of what allegedly happened to [minor]”—i.e., that
father sexually abused minor. While the court acknowledged the record
lacked direct evidence of coaching minor, it noted “there is a mountain of
circumstantial evidence that the mother did coach, plant, cause, this child . . .
to falsely claim that [father] had molested her, was molesting her, is
molesting her. [¶] And the evidence does not support this.” The court noted
that despite numerous investigations into the sexual abuse allegations and
court-appointed expert witnesses to assess whether minor suffered sexual
harm, “not one person has ever determined or found that [father] molested
[minor].” Another expert, Dr. Crawford-Jakubiak, testified minor was
experiencing either sexual abuse or emotional abuse. And, based on the
court’s assessment of the testimony, the credibility of the witnesses, and the
other evidence presented, the court concluded minor was experiencing
emotional abuse.
Mother cites to statements by the Agency that minor was stable, safe,
happy, and well cared for prior to receipt of the 3118 report and custody
evaluation.11 She argues the Agency merely relied on the 3118 report to
remove minor and failed to independently assess the actual risk to minor.
11 Mother argues In re Jasmine G. (2000) 82 Cal.App.4th 282 is
instructive. We disagree. In that case, the minor was removed from her
parents due to their use of corporal punishment. (Id. at p. 288.) The Court of
Appeal found that clear and convincing evidence indicated it was safe to
return the minor to her parents’ homes because the parents had “forsworn
corporal punishment,” expressed remorse for having used corporal
punishment, attended parenting classes, and participated in therapy, and the
minor was not afraid of the parents and wished to return home. (Id. at
pp. 288–289.) While mother has participated in therapy and parenting
15
First, mother fails to cite any authority suggesting it is inappropriate
for a social services agency to rely on a 3118 report and custody evaluation—
prepared by court-appointed experts—when assessing risk to a minor. More
importantly, however, mother ignores the key issue: that she and her family
continued to perpetuate allegations that father was sexually abusing minor,
despite multiple investigations that did not identify any evidence of sexual
abuse. Nothing in the record indicates mother acknowledged the results of
these investigations or that she was willing to consider the possibility that
father did not sexually abuse minor. Given the totality of the evidence before
the juvenile court and mother’s ongoing insistence that father sexually
abused minor, it was reasonable to infer that minor could not be safely placed
with mother because she would continue to perpetuate the sexual abuse
script. Substantial evidence supports the dispositional order removing minor
from mother’s custody.
III. DISPOSITION
The juvenile court’s jurisdictional and dispositional order is affirmed.
classes, she has continued to deny any emotional abuse and has only asserted
that the experts and social worker are biased against her.
16
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A162849
In re M.W.
17