In re S.S. CA2/5

Filed 8/11/21 In re S.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re S.S., a Person Coming B308276
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 20CCJP02617A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.J.,
Defendant and Appellant;
R.S.,
Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Pete R. Navarro, Judge Pro Tem. Affirmed.
Andrea R. St. Julian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
Linda Puertas, under appointment by the Court of Appeal,
for Respondent.
The juvenile court in this dependency matter found that, in
an attempt to gain an advantage in a custody dispute, mother
A.J. coached her five-year-old daughter S.S. (child) to accuse her
ex-husband R.S. (father) of physical and sexual abuse. Child was
declared dependent due to the emotional abuse inflicted by
mother’s conduct. The dependency court then terminated
jurisdiction with an award of full legal and physical custody to
father, with mother to have monitored visitation. Mother
appeals, arguing the court denied her due process at the
adjudication hearing and abused its discretion in its disposition
of the matter. We affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
1. Overview
Child was born in March 2014. Mother and father
separated in 2018 and divorced in February 2019. For some time
after the separation, child lived with mother’s parents in
Minnesota, by agreement. Father sought, and obtained, weekend
visits, beginning in June 2019. In the interim, mother married
W.J. (stepfather). Child returned to California and lived with
mother, stepfather, and their infant daughter (stepsister).
Mother and stepfather sought to move the whole family back to
Minnesota indefinitely.2
1 Both the Los Angeles County Department of Children and
Family Services (DCFS) and father are respondents in this
appeal. Each filed a respondent’s brief.
2 Mother would testify that she had 71 percent custody and
that she therefore could have moved child to Minnesota without
court approval at any time. However, other evidence showed that
2
In December 2019, mother commenced a six-month
campaign of accusing father of sexually and physically abusing
child, with the apparent goal of terminating father’s custody
rights. She coached child to accuse father, requiring child to
participate in a number of forensic interviews and invasive
physical examinations.
In May 2020, DCFS filed a petition alleging child was
dependent due to mother’s emotional abuse and failure to protect.
(Welf. & Inst. Code, § 300, subds. (b)(1) & (c).) Child was
detained from mother and placed with father. In September
2020, the court sustained the allegations at the adjudication
hearing. The court found true that mother “created a
detrimental and endangering situation for the child . . . in that
since December 2019, the mother has made numerous allegations
of physical abuse and sexual abuse of the child against the child’s
father . . . . The mother subjected the child to numerous forensic
examinations, including invasive genital examinations. The
mother subjected the child to further interviews with social
workers and law enforcement officers on additional occasions.
The mother’s allegations of physical abuse and sexual abuse of
the child by the father remain unsubstantiated. The child has
been observed by mental health providers to exhibit
dysregulation and have tantrums in sessions. The detrimental
and endangering situation established for the child . . . by the
mother endangers the child’s physical health and safety, and
places the child[] at risk of physical harm and damage.”
mother believed she needed court approval to terminate father’s
custody and visitation rights in order to relocate.
3
Jurisdiction was then terminated, with father awarded full
custody.
2. Specific Instances of Mother’s Misconduct
As mother does not challenge the sufficiency of the evidence
supporting the trial court’s adjudication of dependency, we need
not detail the course of mother’s numerous allegations against
father and the lengthy law enforcement investigation
establishing the charges were unfounded.3 Instead, we briefly
discuss two of the more egregious incidents and additional
evidence that mother had coached child to lie about father.
A. Blaze Pizza Incident
On March 13, 2020, child, who was then nearly six years
old, had a visit with father and father’s relatives at Blaze Pizza.
3 The allegations were taken seriously by law enforcement
and DCFS. Not only did they conduct numerous interviews and
examinations of child, they responded to mother’s claims that
father took inappropriate photos of child by having the FBI
perform a full “data dump” on father’s phone, to check whether
any such photos had been deleted. Nothing untoward was found.
In addition, when mother first claimed sexual abuse, police
obtained four pairs of child’s underwear from the family hamper
and examined them for sperm and father’s DNA. Sperm was
detected in the crotch of one of the panties, and male DNA was
detected on the interior and exterior of all four pairs. Father was
excluded as a contributor of the discovered male DNA. Further
testing revealed stepfather as a source of non-sperm male DNA
on the interior and exterior of one pair of the panties. This
resulted in an amended petition being filed alleging sexual abuse
against stepfather, and the detention of stepsister from mother
and stepfather. Mother and stepfather suggested the DNA and
sperm were the result of cross-contamination in the family
hamper. At the adjudication hearing, DCFS dismissed the
allegations against stepfather, and stepsister was returned home.
4
After child came home, mother called stepfather and told him
child was acting erratically and had told her father molested her
in the bathroom of Blaze Pizza. Stepfather immediately drove to
the restaurant, where he attempted to obtain surveillance video,
and called the police.
Police interviewed mother, who said that after the visit,
child had a tantrum. According to mother, child took her pants
and underwear off and told mother that father had “poked” her
buttocks. Mother saw redness on child’s buttocks and expected
police to examine child. Police interviewed child, who told police
she needed to be with mother because “my mommy tells me what
to say.” Child said mother told her that once father goes to jail,
they will be able to move to Minnesota, which is where her
grandparents live and her favorite place to be. When asked what
happened at Blaze Pizza, child told police that, after everyone
had finished eating, father took her to the bathroom to wash her
hands. Inside the bathroom, father took his clothes off and put
them back on several times. She saw his chest and stomach, but
not his buttocks or penis. She never took off her pants, nor did
father touch her. At mother’s request, child was examined by a
Center for Assault Treatment Services (CATS) nurse. “During
the interview, [child] did not provide any details regarding
[mother]’s alleged molestation accusation. [Child] did mention
that she had a hard time remembering what to say without her
mother being with her.” (Italics omitted.) While at CATS,
mother told the police that the judge was going to increase
father’s visitation if everything was okay, and she had been
advised by her lawyer to gather as much evidence on father as
she could to ensure that visitation would not change to father’s
benefit.
5
Three days later, two DCFS social workers went to
mother’s home for further investigation. A social worker
interviewed child privately and asked about Blaze Pizza; child
said she could not remember what happened. When the social
worker continued asking, “child stated that she couldn’t
remember and went upstairs to her mother.” When child came
back downstairs; she said she remembered. She drew a picture of
father and his relatives and said they were mean people. Before
child could be questioned further, mother interrupted and said
child was late for a therapist’s appointment.
Police obtained the surveillance video from Blaze Pizza. It
revealed that father took child to the restroom to wash her
hands. Child was in the restroom for 49 seconds. Father held
the door open with his foot the entire time. The detective told the
social worker that he confronted mother after reviewing the video
and told her there was no evidence that anything occurred.
Mother responded that other incidents happened a few months
ago. The detective stated “it appears that mother is making stuff
up and child is being coached by mother.”
B. Father’s April 24 Visit
The second incident we describe took place the following
month on April 24, 2020. Father visited child at the home of a
paternal aunt. By this time, child visitation exchanges were
taking place in the parking lot of a local police station. Father
and paternal aunt picked up child at the police station and
brought her to paternal aunt’s home. They had a pleasant visit,
and father ended the visit early, returning child to the police
station parking lot.
After the exchange, mother walked child into the police
station, claiming that as soon as she picked child up, child said
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she wanted to speak to an officer. Mother said she did not know
what child wanted to say to the police, because child did not
discuss it with her. Police interviewed child, who said father
spanked her on her buttocks and was mean. She said he hurts
her, spanks her and takes pictures of her private parts. She said
he poked her vagina and buttocks with his finger. The officer
asked how many times, she said “sixty ninety five [sic].” When
asked when this had happened, child said it was that day. She
said father tried to kick her on her chest, back, and knees. She
said she had a bruise on her knee and tried to look for it to show
the officer, but could not find it. When asked the difference
between good and bad, she explained that her mother’s side of the
family is good and her father’s side is bad. After the interview,
the officer approached mother. Mother asked if child had told the
officer about paternal aunt hurting child, which the officer
thought strange, as mother had previously indicated she did not
know anything child was going to say to the police. Later, while
the officer spoke with mother, child spoke with a police sergeant
about her summer plans. She said they plan to move to
Minnesota after father gets arrested. Child asked if father was
going to get arrested today or tomorrow.
Unbeknownst to mother, a DCFS social worker had
monitored the visit at paternal aunt’s house. Child had not been
out of view of the social worker at any time – not even to use the
restroom – and there was no abuse or anything at all concerning.
Child had been comfortable with father during the visit and
showed affection towards him, resting her head on his shoulder
while watching television. Mother had, apparently, fabricated
everything.
7
C. Other Incidents of Coaching
At the adjudication hearing, mother took the position that
although the allegations of abuse were unsubstantiated, child
had made the allegations herself, and mother had been properly
protecting her child by reporting child’s serious accusations.
The fact that child told police, “my mommy tells me what to
say” following the Blaze Pizza incident was strong evidence that
the claims of abuse originated with mother, not child. But this
was not the only time child told someone she had been coached.
In December 2019, following mother’s first report that father was
abusing child, child gave a full statement to a DCFS social
worker, then said she had one last thing to say. She “phrased her
words in a certain way indicating that Mother had told her these
things about Father and what was going on in his home.” During
an April 9, 2020 interview, the DCFS social worker asked child
why she doesn’t like father; she replied, “I don’t know why I don’t
like him, who knows what the answer will be.” On April 10,
2020, child told police that father physically abused her, but did
not mention sexual abuse. Once the officer was finished
interviewing child, mother continued to ask child if she had more
to tell the social worker; child answered, “only if you want me to.”
A number of police officers and DCFS social workers who
had interviewed child and taken reports from mother all reached
the same conclusion: mother had coached child.
3. The Adjudication and Disposition Hearings
Prior to the adjudication hearing, father asked the court to
require DCFS to assess whether the case could be closed at the
adjudication hearing with an order awarding custody to father.
The court directed DCFS to submit that assessment in a last
minute information.
8
On September 15, 2020, DCFS filed its last minute
information, which recommended declaring child a dependent
and then terminating jurisdiction, giving father sole legal and
physical custody. The report stated that mother “continues to
cause disruption and is unable to maintain healthy
communication with father for coparenting purposes.” (Italics
omitted.) Specifically – although not exclusively – father
reported “that he is having difficulty with the school district and
logging into the [child’s school] portal as the Mother continues to
log in and undo all of the changes that . . . he makes.”
At the adjudication hearing, mother objected to receipt of
the last minute information as unrelated to jurisdiction. The
court overruled the objection, indicating it would give the last
minute information the appropriate weight, if any.
Mother testified in her own behalf, claiming that she had
never coached child, but simply reported what child had
voluntarily disclosed to mother. She testified that stepfather was
present on one occasion when child disclosed abuse; she specified
this was “at the hospital.” She conceded that, although
stepfather had called the police from Blaze Pizza, she had told
stepfather about child’s allegations.
Mother generally denied doing anything wrong with the
school portal but admitted that she did, in fact, change the
emergency contact information, but only to identify herself and
her parents as emergency contacts, after father had deleted
them.
Mother then called stepfather to testify. DCFS and father
objected under Evidence Code section 352. The court asked
mother’s counsel what he intended to elicit that was not already
in the DCFS reports. Counsel responded that he would ask
9
stepfather whether he ever heard mother coaching child and
whether he heard child make claims “basically, to corroborate
mother’s version, that it was [child] that made the disclosure of
being abused.” The court sustained the objection, on the basis
that stepfather’s testimony would be cumulative of his
statements already in the DCFS reports.4
The court took the matter under submission. The following
day, it held another hearing and adjudicated child a dependent,
stating: “This case is a case of a parent who has unhealthy
obsessions who has made multiple police reports in the court’s
view attempting to manipulate the police into commencing
criminal charges against the father. It’s riddled with efforts by
the mother to falsely accuse the father of abuse, and it’s evident
to the court that this child has been coached.” The court added,
“The mother has shopped around for therapists to – in order to
require a third-party report. And the report – and the incident
which really demonstrates to what extent the mother – steps she
4 Specifically, after counsel made his offer of proof, the court
asked, “Isn’t that what’s contained in the reports?” Mother’s
counsel responded, “Well, if the court’s willing to accept that
then --.” At that point, the court responded that the testimony
would be cumulative, so sustained the objection. In its
respondent’s brief on appeal, DCFS interprets this exchange as
mother’s counsel indicating a willingness that the court accept
the statements in the reports in lieu of stepfather’s live
testimony. In her reply brief, mother responds that the court did
not allow counsel to complete his sentence, and the court’s ruling
was not invited. This much is clear: mother at no point
suggested that stepfather’s testimony would be any different
from his statements recorded in the DCFS reports. Nor did
mother seek to cross-examine the social workers regarding the
contents of the reports.
10
will take to make certain that the father’s rights to this child are
forever severed was the incident at the pizza [restaurant] where
the video was viewed by the police department, police detectives,
no basis on their behalf to believe that any such acts occurred.”
The court characterized mother’s conduct as “reprehensible.”
Following the court’s ruling on jurisdiction, the parties
contested disposition. DCFS and father argued for termination of
jurisdiction with a family law order granting father sole legal and
physical custody with mother to have monitored visitation only;
child’s counsel did not separately argue, but submitted on DCFS’s
recommendation. Mother did not object to terminating
jurisdiction with a family law order, but requested joint legal and
physical custody, and unmonitored visitation.
The court terminated jurisdiction and granted sole legal
and physical custody to father, with mother to have monitored
visitation. The court explained that the reason for its custody
ruling was that mother had shown herself unable to cooperate
with father and, instead, would go behind father’s back to
“sabotage the school emergency contact list.”
Mother filed a timely notice of appeal.
DISCUSSION
Mother does not challenge the sufficiency of the evidence on
appeal.5 Instead, she identifies two evidentiary rulings – the
admission of the last minute information and the exclusion of
stepfather as a witness – and claims they were not only
erroneous, but constituted a denial of due process, not subject to
5 In her reply brief mother expressly concedes she does not
raise a substantial evidence challenge to the jurisdictional or
dispositional findings. She repeated the concession at oral
argument.
11
harmless error review. She also asserts the court abused its
discretion in denying her joint physical and legal custody.
1. There Was No Error in Admitting the Last Minute
Information
On appeal, mother argues the admission of the last minute
information constituted structural error, because she had not
received the document a sufficient number of days in advance of
the hearing. (See Cal. Rules of Court, rule 5.690(a)(2) [the social
study for a disposition hearing must be submitted to the clerk at
least 48 hours before the disposition hearing, and the clerk must
make copies available to the parties and attorneys].)
The last minute information indicated that father claimed
“that he is having difficulty with the school district and logging
into the portal as the Mother continues to log in and undo all of
the changes that . . . he makes.” Mother objected to admission of
this exhibit on the basis that it did not go to jurisdiction, but
instead “goes more to the progress and the events that occurred
after the fact.” Counsel also expressed, “There is some
information in there that if I had more time, I would refute; but it
comes after the fact and it doesn’t really relate to jurisdiction[.]”
The trial court overruled the objection and said it would
give the last minute information the appropriate weight in
considering jurisdiction and disposition. However, it does not
appear that the court relied on the last minute information in its
jurisdictional finding at all; mother’s interference with the portal
was relevant only to the court’s ruling on disposition. In that
respect, mother’s objection that the last minute information
related only to disposition and not jurisdiction was, in practical
effect, sustained.
12
Mother’s counsel’s statement that “[t]here is some
information in there that if I had more time, I would refute” was
neither an objection to the court’s consideration of the
information at the disposition hearing nor a request for
continuance.6 There was therefore no error in denying it. Even if
the court erred in admitting the last minute information, nothing
in the record or mother’s argument supports mother’s claim that
she was denied due process. While the complete omission of
DCFS’s required reports prior to a hearing may rise to the level of
a due process violation, when the report is prepared and is made
available in advance of the hearing, deficiencies in the report go
the weight of the evidence, and will not ordinarily amount to a
deprivation of procedural due process. (In re Crystal J. (1993)
12 Cal.App.4th 407, 413.)
In the absence of a due process error, any admission of the
document was harmless as a matter of law. Mother testified that
father’s representation, as recorded in the last minute
information, was, for the most part, true. She had logged in to
the portal to put herself in as child’s mother and her parents as
child’s emergency contacts. While mother did not admit to
6 Under California Rules of Court, rule 5.690(a)(2), “[a]
continuance within statutory time limits must be granted on the
request of a party who has not been furnished a copy of the social
study in accordance with this rule.” The parties dispute whether
a last minute information constitutes a “social study” subject to
this rule, and whether the notice requirement of the rule was
satisfied. This dispute is immaterial; mother objected to the
admission of the last minute information as not relevant to
jurisdiction; she did not seek a continuance of the disposition
hearing.
13
undoing “all” father’s changes, it was undisputed that she had, in
fact, logged in and change several of father’s portal entries.
2. There Was No Error in Excluding Stepfather’s
Testimony
The trial court excluded stepfather’s proffered testimony as
cumulative. (Evid. Code, § 352 [court may exclude evidence if the
probative value is substantially outweighed by “the undue
consumption of time”].) We review the court’s evidentiary rulings
for abuse of discretion, upsetting the ruling only if the trial court
exceeded the bounds of reason. (In re Cole C. (2009)
174 Cal.App.4th 900, 911.)
Here, DCFS’s reports, already admitted into evidence,
reflected a number of interviews with stepfather, in which he
sided with mother – indicating that she did not coach child and
that child herself claimed abuse. Mother argues these recorded
interviews were a poor substitute for stepfather’s live testimony,
and that he was the one witness who could confirm that mother
did not coach child.
Mother greatly overstates the relevance of any testimony
stepfather could give. Stepfather was not present in the home
when child allegedly disclosed to mother that father molested her
in the bathroom at Blaze Pizza, nor was he present in the car in
the police department parking lot when child allegedly asked to
speak to police about father’s conduct during the April 24 visit
that DCFS had monitored. The same is true as to two other
visits when mother claimed child reported abuse when mother
picked her up in the police department parking lot. Stepfather’s
statements, as described in DCFS’s reports, reflect that he
claimed child behaved erratically when she first returned from
visits with father in July 2019 and that she eventually disclosed
14
physical abuse to him. But stepfather could give no testimony as
to the vast bulk of the claimed instances of coaching, as he was
simply not present during the mother/child conversations that led
to the accusations.
The court reasonably found that this minimally-relevant
testimony was outweighed by the consumption of time it would
take for stepfather to testify, and repeat the statements already
in evidence.
This proper application of Evidence Code section 352 does
not constitute a due process violation. “While a parent in a
juvenile dependency proceeding has a due process right to a
meaningful hearing with the opportunity to present evidence
[citation], parents in dependency proceedings ‘are not entitled to
full confrontation and cross-examination.’ [Citation.] Due
process requires a balance. [Citation.] The state’s strong interest
in prompt and efficient trials permits the nonarbitrary exclusion
of evidence [citation], such as when the presentation of the
evidence will ‘necessitate undue consumption of time.’ [Citation.]
The due process right to present evidence is limited to relevant
evidence of significant probative value to the issue before the
court. [Citations.]” (Maricela C. v. Superior Court (1988)
66 Cal.App.4th 1138, 1146–1147.)7
7 Mother cites People v. Reeder (1978) 82 Cal.App.3d 543, 553
for the proposition that Evidence Code section 352 must give way
to the right of the defense to present its case. Reeder was a
criminal appeal that considered the role of section 352 when the
evidence was relevant to one codefendant but prejudicial to the
other codefendant. The answer lay in the proper application of
rules regarding joinder and severance. Reeder was not a juvenile
dependency case and had nothing to do with undue consumption
15
3. The Disposition Order Was Within the Court’s
Discretion
Finally, mother argues the court abused its discretion by
awarding father full legal and physical custody and limiting her
to monitored visits. “We normally review the juvenile court’s
decision to terminate dependency jurisdiction and to issue a
custody (or ‘exit’) order pursuant to [Welfare and Institutions
Code] section 362.4 for abuse of discretion . . . .” (Bridget A. v.
Superior Court (2007) 148 Cal.App.4th 285, 300.) We may find
such abuse only if the court’s determination was unreasonable or
arbitrary. (In re J.M. (2020) 50 Cal.App.5th 833, 846.)
Mother argues, “Given [mother’s] unwavering love for her
daughter and the history of the loving care that [mother] had
provided [child], the juvenile court’s decision awarding sole legal
and physical custody to [father] was an abuse of discretion. [¶]
For similar reasons, the juvenile court abused its discretion when
it limited [mother] and [child] to two, two-hour monitored visits
per week. Limited, monitored visits between [mother] and [child]
will have the unfortunate effect of straining the loving
relationship between mother and daughter because the limited
contact and the constant surveillance will make it difficult for
[mother] and [child] to interact in a normal, natural, and fully
loving way. This simply is not in [child]’s best interests.”
Mother’s one-sided argument fails to address meaningfully
the evidence supporting the court’s exercise of its discretion.
of time. The present case has nothing to do with joinder and
severance of criminal defendants. Cases are not authority for
propositions not considered. (In re I.S. (2002) 103 Cal.App.4th
1193, 1198.)
16
When mother had unmonitored contact with child, she attempted
to poison the child against father. In fact, when mother first was
served with the removal order for child and began packing child’s
belongings, mother and stepfather continued to speak negatively
about father in child’s presence, despite the social worker’s
repeated admonitions not to do so. Mother conceded that she and
father had been unable to coparent. She admitted that, after
child had been detained with father, she made changes to child’s
school information to include herself and her family. That
mother says she loved child is not the point. Mother emotionally
abused child by using her as a pawn in her campaign to have
father unjustly incarcerated as a child molester. The court’s
conclusion that it was in child’s best interests for her father to
have sole custody and her visits with mother to be monitored for
her own emotional and physical well-being was not an abuse of
discretion.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
17