In re Sabrina T

Filed 8/29/06 In re Sabrina T. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from orders of the Superior Court of Los Angeles County, Valerie Lynn Skeba, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., Los Angeles County Counsel, Larry Cory, Assistant County Counsel, Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

I. Introduction

Michael T. appeals from jurisdictional and dispositional orders of the juvenile court concerning his 15 year-old daughter, Sabrina T. The juvenile court: declared the child a dependent of the juvenile court; ordered her removed from the father’s custody; and ordered the father to participate in sexual abuse counseling and drug rehabilitation as part of the case plan based on findings that he sexually molested her and used drugs. The father, who did not attend the adjudication and disposition proceedings, contends that the jurisdictional findings and court orders concerning sexual and drug abuse must be set aside because the juvenile court denied his due process and statutory rights to cross-examine the child about her prior misconduct. We affirm.

II. Background

On December 14, 2005, the Los Angeles County Department of Children and Family Services (“the department”) filed a petition pursuant to Welfare and Institutions Code^[1] section 300, subdivision (b) on behalf of the child, who was born in October 1990. The petition alleged: the father left the child in the care of the maternal grandmother; the maternal grandmother was no longer able to provide ongoing care and supervision for the child; the child did not want to be returned to the father’s care and custody; and the child had suffered or there was a substantial risk she would suffer serious physical harm and illness as a result of the father’s failure or inability to supervise or protect her.

The detention report stated that the child’s mother, Dawn H., died in a fatal car accident in April 2001. The mother and the father, who lives in Oklahoma, were never married. The mother married Frederick G. and had two other children, Eric and Sharise G. After the mother’s death, the child resided with the father and paternal grandmother, Carol R., in Oklahoma from November 2001 through December 2004. (As will be noted, during this period of time the child testified she was molested by the father who has ongoing alcohol and drug problems.)

In December 2004, the paternal grandmother would no longer allow the child to live in her home. This was because of the paternal grandmother’s health and the child’s behavioral problems. The father then sent the child to live in Long Beach, California with the maternal grandparents, Robert and Jacqueline B. The child’s two half-siblings lived in La Puente, California with their paternal grandparents Raul and Monica G. where they had resided since the mother’s death. According to Jacqueline, the maternal grandmother, in July 2005, the child lived with Raul and Monica G. This was because the child wanted to be with the two half-siblings, Eric and Sharise.

In November 2005, the paternal grandparents called Jacqueline, the maternal grandmother and indicated that they could not deal with the child anymore. This was because the child liked to run away and would not stay at home. The child claimed that the paternal grandparents would not let her have any friends. Jacqueline then took the child back to Long Beach. Some neighbors tried to assist the child and took her to live with them in Chino. However, the neighbors ultimately decided against taking care of the child. The child began staying with the step-paternal grandparents again. At some point, the child spoke to Jacqueline, the maternal grandmother, on the telephone. According to Jacqueline, during the conversation, the child sounded “gang-like” and was being rude and cocky. The child no longer wanted to live with Jacqueline. The minor complained to Jacqueline there were too many rules. Jacqueline explained that the child always wanted to go three doors down to a “drug house.” Jacqueline prohibited the child from going to the residence which had been recently raided by the police.

A referral was made to the department on December 5, 2005 that the child was being neglected by Raul and Monica, the paternal grandparents. A caller reported that at school the child claimed she was “kicked” out of the step-grandparents’ home on December 4, 2005. The step-grandfather came to the child’s school and said he did not want anything to do with her anymore. This was due to the child “‘not following directions at home.’” The child was currently residing in a friend’s home.

The child was asked why she was not in the paternal grandparents’ residence. The child stated that on Saturday December 3, 2005, she went to a party and came home late. According to the child, her grandparents became angry. The child then went to a male friend’s home to stay. The grandparents told the child that they would leave her clothes outside. The child then went to the home of a 26-year-old male identified only as “Edgar.” The child stayed in the residence with Edgar’s mother’s permission. During the interview, the child admitted to being sexually active with Danny Vargas who was 20 years old.

Raul, the paternal step-grandfather, explained he allowed the child to go out one day at 7 p.m. and told her to be home by 11 p.m. but she did not return until 5:30 a.m. She left home the previous Saturday at 11 a.m. and did not return until 2 p.m. on Sunday. Raul was concerned that the child would be a bad example for his other two grandchildren who are 10 and 8 years old. The child refused to follow school rules including complying with the dress code. Raul indicated that his wife had heart problems and the two of them could not have the child in their home anymore. The paternal grandmother stated that the child left in October 2005 with Mr. Vargas (the 20-year-old) and did not return for a week. They did not know where she was. According to the younger sibling Eric, the child told Mr. Vargas she was 17 years old. But, Mr. Vargas claimed that he was just a friend and not the child’s boyfriend.

Ronnie Dann-Honor, the social worker, telephoned the father, who said he would take the child back to Oklahoma. The father indicated that he had been employed for about six months and was no longer living with the paternal grandmother. The father stated he: could provide a three-bedroom home for the child now; had a criminal record for walking away from a personal injury accident; and was on probation as a result of that incident. The father stated: the child was a “real good girl”; she was very smart; she “‘got honors’” all the time; and he could not afford to come to California to get her because he just “‘started a new job.’” The child stated: “‘I don’t want to come home at a certain time. I just want to come home when I stop having fun.’” The child also said: “‘I don’t want to go to Oklahoma. He is not a good dad. He did not pay my mother child support. He does drugs.’” On December 14, 2005, the juvenile court found the father to be the child’s presumed father. The juvenile court ordered the child detained pursuant to section 300, subdivision (b). The department was ordered to provide family reunification services. The father was given monitored visits in California.

On January 11, 2006, the department filed a first amended petition. The first amended petition contained the allegations that the father had failed to provide ongoing care and supervision for the child within the provisions of section 300, subdivision (b). It also added allegations that the father had: sexually abused the child; smoked marijuana in her presence; and consumed excessive amounts of alcohol in her presence. The first amended petition further alleged that the child came within the provisions of section 300, subdivision (d). As sustained, the first amended petition alleged: the father had smoked marijuana and consumed excessive alcohol in the presence of the child on numerous occasions; the father had on several occasions touched the child in her vagina and breast areas from 2001 to 2004; the father told the child not to disclose that he had touched her in those areas so that he would not be in trouble; and the father’s actions endangered the child’s physical and emotional health, safety, and well-being, creating a detrimental home environment and placed her at risk of physical and emotional harm and damage.

Also on January 11, 2006, the department filed a report with the court. The foster parents had given notice they wanted the child removed from their home. The department report stated: “The 7-day notice was given because the child was not in her bedroom, and was found to have gone out over the night, when the foster mother went to wake her up for school on [January 9, 2006]. Furthermore, the child went out in the afternoon of [January 9, 2005,] and did not return until [1 a.m. on January 10, 2006].” The case social worker spoke with the late mother’s best friend, Lisa May, who at one point, wanted to adopt the child. However, Ms. May indicated that she has young children. As a result, Ms. May no longer desired to adopt the child. Ms. May had encouraged the child not to stay out late with adult males as had been occurring. Ms. May said the father had a substance abuse problem. According to her, when the father was in his early twenties, his drug of choice was “crystal meth.” Ms. May did not know what drugs the father currently used.

On January 13, 2006, the department reported that the child did not want to live with the father. According to the child, the father was never around and did not pay child support until the mother died. The child stated that she did not know the father until she was 10 years old. This was after the child’s mother passed away. After living with the father for three year and one-half years, the paternal grandmother said the child had to leave. A department report related: “[The child] stated she used to have straight A grades at school and that when she stopped getting the A grades, the paternal grandmother ‘went crazy.’ She also stated that the paternal grandmother made her clean the whole house whenever she was given [d]etention for chewing gum and the like at school. She stated that the paternal grandmother also yelled at her a lot and ‘got mad’ when the father failed to yell at her . . . in a like manner on one occasions, which was ‘the final straw’ to cause her to be put out of the paternal grandmother’s home.” The child described the maternal grandmother, Jacqueline, as very strict. The child stated the step-paternal grandparents “really could not handle her frequent and late-night” outings. The child stated she likes being with her friends because she does not feel a bond with any family member. The maternal grandmother directed the child not to go to a house which had been raided by the police. The child was also closely monitored and transported to and from her outings.

The step-paternal grandfather, Raul, stated that he agreed to have the child reside in his home so that she could be with her half-siblings. The change of residence also occurred because the maternal grandmother in Oklahoma was having trouble with the child. Raul gave the child a cellular telephone who then ran the bill up to $1,300. The father did not call about the child while she resided in their home from July until December 2005. The child abused the privileges of going out and often stayed out three to fours late from school. The child was given one chore, which was to clean her room, but she refused to do this.

The child stated that, while living with her father, she saw needles in his pockets about two or three times when she did his laundry. She saw the father smoke marijuana on an almost daily basis. The father also drank “a lot” according to the child. The father became drunk occasionally. The father had to go to Alcoholics Anonymous meetings recently and had a probation officer before she left Oklahoma.

The case social worker, Titilade Oyenusi, commenced a telephone interview with the father, who was in Oklahoma, on December 23, 2005. After the interview started, the father became unwilling to continue. The father requested that the interview be continued until December 27, 2005. The case social worker left messages for the father on December 29, 2005 and January 6, 2006 but did not receive a response. The father had a misdemeanor conviction for possession of drug paraphernalia and a controlled substance in 2001. The department report stated the father had failed to make himself available for an interview on the drug, alcohol, and sexual abuse allegations.

The maternal grandmother related that the child said the father drinks a lot. The maternal grandmother stated that she had never observed the father drink alcohol. However, when she telephoned the father in October 2005, his speech was slurred and he repeatedly burped during the telephone call. The father was talking strangely so that she asked him if he had been drinking. The maternal grandmother explained that the child was missing. During the conversation while discussing the fact the child was missing, the father drank four cans of beer.

The department reported the child stated that the father had touched her sexually in her vagina and breast areas during the three and one-half years she resided with him in Oklahoma. The father touched her repeatedly but did not have full intercourse with her. The father would say he was sorry each time he touched her and asked the child not to tell anyone so he would not get into trouble. The father did this in the garage area where he was staying and when the two of them had to stay in a motel after the paternal grandmother “kicked” them out of her house. She became sexually active following the sexual abuse incidents with the father. The child also stated that the father has other children who live with their maternal relatives in Oklahoma and visit him. One of the child’s siblings was jailed for a drug-related offense. The child stated that she liked her foster care placement. Although the father wanted to talk to the child on the telephone, she stated she was not ready to speak to him.

The child also indicated she would like to “emancipate” from the foster care system. The case social worker described the child as very articulate and appeared to be more than 15 years old. The child wanted to graduate from high school and attend college indicating she will do what is required to catch up with her school credits. According to maternal grandmother, Jacqueline, the child was an “A student” in Oklahoma. The child joined the swim team in high school. She wanted to attend a modeling school, the costs of which had been paid by her paternal step-uncle.

The father did not attend the scheduled January 13, 2006, proceeding which was continued to February 27, 2006 for a contested adjudication hearing. On February 27, 2006, the department reported that the case social worker, Titilade Oyenusi, had a telephone conversation with the father on February 21, 2006. During the telephone interview, the father’s speech was slurred. The father needed to have questions repeated several times before he was able to respond. The father denied being intoxicated or under the influence of a drug. He mimicked and mocked the social worker who was of Asian descent. When asked what his current address was the father stated, “‘[N]one of your biz wax.’” When asked if he received notices about the current court date, he yelled, “‘What court date?’” He continued to yell stating he could not afford to attend the court hearing. The father admitted to making an inappropriate plan of care for the child. But the father denied the drug and alcohol abuse and the sexual abuse allegations. The father claimed the child was making up the sexual abuse allegations because she never wanted to live with him. The father also stated that he still lived in the same home as the paternal grandmother. On January 19, 2006, the child’s school reported that she had an irregular attendance pattern and was having difficulty performing academically.

The father did not attend the contested hearing on February 27, 2006. The child testified that she had seen the father use drugs while she was living with him. She saw the father smoke marijuana “a lot” and found needles in his clothes on two occasions. He would smoke the marijuana out of a pipe with his friends. He did not act any differently when he smoked marijuana. She knew the difference between a tobacco cigarette and marijuana by the smell. She assumed the needles were for drugs because he had a mark on his arm like a purple lump and he talked to his friends about “shooting up.” He dropped a needle which was in a cigarette package in 2004 when she was about 14 years old. When he asked her if she had seen the needle, she denied seeing it because she did not want to have a conversation about it. The paternal grandmother drove the father to Alcoholics Anonymous meetings because he did not have a car.

The child also testified that the father touched her in the vaginal area more than five times while she was living with him. The father touched the child with his hand. The father touched her under her clothing on the skin. The father would rub the child and move his hand. The child was scared when he did it. The father told her later not to say anything because he could get into “a lot” of trouble and he was sorry. The child was not able to tell anyone about the molestation before talking to the investigator. The father also touched her chest area about five times. He did it the first time when she was 10 years old. Sometimes the father had being using drugs or drinking alcohol but other times he was sober.

When cross-examined, the child testified that she did not love her father. Six months before she moved in with him, he had inappropriately touched her for the first time. She had that in her mind when she moved in with him. The mother was still alive at the time. But the child never told the mother about the father’s misconduct. The child did not tell anyone other than the social worker in California because it was “not the easiest thing” to tell people.

The child further testified that she had some problems with the paternal grandmother. As noted, they were living in Oklahoma. The father’s attorney asked about the child’s relationship with the paternal grandmother. In response to a relevancy objection, the father’s counsel argued the line of questions was relevant to whether the child was truthful based on her conduct while living in Oklahoma. The juvenile court sustained the objection on the ground it was not relevant to the father. At one point, the father’s attorney, Eva Chick, asked the child, “And were you angry with your paternal grandmother for -- for what you believed was keeping you away from -- your brother and sister?” The trial court sustained the department’s objection on Evidence Code section 352 grounds. Thereafter, the juvenile court interposed its own objection to a question about why the child left the maternal grandmother’s home. The juvenile court reasoned this had nothing to do with the allegations against the father. The following colloquy ensued: “Q By Ms. Chick: Sabrina, do you--do you tell lies? Do you feel that you have ever told a lie?

A Yes.

Q All right. Do you--did you tell lies to your father when you were growing up and when you were living with him?

A I never--

The Court: Okay. Counsel, counsel, I am not going to permit this line of questioning. It is way too vague. I don’t think there’s a child out there that doesn’t lie on occasion. And to be perfectly honest, I think, if you review the Evidence Code, you’ll find that prior specific bad acts are not admissible. So--

Ms. Chick: I think they are admissible to go to the credibility of the --

The Court: No, they’re not.

Ms. Chick: -- witness, Your Honor.”

The child was cross-examined about her relationship with her step-grandparents and whether she had disclosed the father’s sexual and drug and alcohol abuse to them. The child told the step-grandparents, the maternal grandmother, and a social worker about the drugs and drinking. However, the child did not disclose the sexual abuse to any of her grandparents. She disclosed the sexual abuse to a social worker in January 2006. When asked why the social worker was told about the molestation, the child testified: “She just -- we were on the phone talking, and she said -- she asked about the drugs, and then she asked me if he had ever abused me sexually or verbally or anything like that.

And I told her, ‘Yeah.’

And she asked me ‘how.’

And I just got into that conversation.”

The father argued that the petition should not be sustained as to the sexual and drug and alcohol abuse allegations. Ms. Chick asserted the fact the subject came up in an offhand way during an interview with the social worker rendered the child’s allegations untrustworthy. The juvenile court stated the child was very truthful and honest in her testimony. The juvenile court further ruled: “All right. Well, I agree wholeheartedly with [the department’s counsel and the child’s counsel]. I thought [the child] was very truthful. She was very brave. And she was very honest in her testimony. I think it’s very, very difficult to talk about subjects like this. And I think the reason she disclosed to the social worker was it’s probably the first time that anybody really asked her if something was going on.

And I find it entirely normal that a young girl would have difficulty talking to people, even people that she may care about, about a subject that is so deeply personal and private. I can’t find that there’s anything untruthful about her testimony in any respect.” The child was declared to be a dependent of the juvenile court. The petition was sustained under section 300, subdivisions (b) and (d) and the child was removed from the father’s custody. The court ordered the father to attend drug rehabilitation with random testing and sexual abuse counseling. This timely appeal followed.

III. Discussion

Citing Evidence Code section 1101, subdivision (c) and due process principles, the father argues the juvenile court committed reversible error in concluding that evidence concerning the child’s prior misconduct was inadmissible to attack her credibility. Evidence Code section 1101, subdivision (c) provides that evidence of prior misconduct is admissible to attack a witness’s credibility. Likewise, parents have due process rights in dependency proceedings. (Santosky v. Kramer (1982) 455 U.S. 745, 753-754; Stanley v. Illinois (1972) 405 U.S. 645, 658.) This includes due process and statutory rights to cross-examine witnesses at the jurisdictional hearing. (§§ 319, 350; Cal. Rules of Court, rule 1412(j); Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757; In re Matthew P. (1999) 71 Cal.App.4th 841, 849; In re Jeanette V. (1998) 68 Cal.App.4th 811, 816; see also In re Malinda S. (1990) 51 Cal.3d 368, 382-383, fn. 16; Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1513-1514; In re James Q. (2000) 81 Cal.App.4th 255, 263-265.) The Court of Appeal has explained: “But due process is not synonymous with full-fledged cross-examination rights. [Citation.] Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. [Citation.] The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.] Even where cross-examination is involved, the trial court may properly request an offer of proof if an entire line of cross-examination appears to the court to be irrelevant to the issue before the court. [Citations.]” (In re Jeanette V., supra, 68 Cal.App.4th at p. 817; Ingrid E. v. Superior Court, supra, 75 Cal.App.4th at p. 757.) We review these contentions, which involve mixed questions of the due process and statutory right to cross-examination and Evidence Code section 352 exclusion, matters over which the juvenile court has wide latitude, for an abuse of discretion. (Michigan v. Lucas (1991) 500 U.S. 145, 149; People v. Ayala (2000) 23 Cal.4th 225, 300-301.) No abuse of discretion occurred.

At the outset, it should be noted that the father was given an opportunity to have a contested hearing which he did not attend. In addition, the department presented reports which were replete with incidents showing that the child had difficulty following rules when placed with her relatives and the first foster mother. This included numerous instances of leaving home and returning days or even weeks later to whichever home she was staying in at the time. The child paid no attention to curfews set by her caretakers. She disobeyed even the simplest rules such as one requiring her to make her bed. The child readily admitted she wanted to come home when she wanted to do so and preferred not to follow the rules. In her words, she wanted to come home when she stopped “having fun.” The child also admitted to being sexually active and preferring the company of her “friends” which by all accounts consisted of young adult males over the age of 18. In each instance, the frustrated caretakers would either ask another relative or the department to remove the child from their home. When Ms. Chick attempted to revisit the issue of the child’s conduct, the juvenile court limited cross-examination to issues related to the father’s conduct.

We agree with the court that the focus of the hearing was on the father’s conduct and not that of the child. In any event, the father, through his attorney, Ms. Chick, was permitted to cross-examine the child about: prior living arrangements; the delay in accusing the father about the sexual misconduct; the disclosures to the grandparents and social workers about the father’s drug and alcohol abuse; and past incidents of lying. The child admitted that she had lied in the past. She also admitted that she did not love her father, had difficulty living with him, and did not want to live with him in Oklahoma. The father has failed to establish that either his due process or statutory rights were violated because he was not allowed to cross-examine the child about her prior misconduct. No abuse of discretion occurred.

IV. disposition

The jurisdictional and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.