Orange County Social Services Agency v. Marcelino M.

Opinion

Introduction

Marcelino M. appeals from the juvenile court’s order sustaining the allegations of a petition under Welfare and Institutions Code section 300 (all

On March 26, 2007, Brenda, then age 11, and her four-year-old brother Brandon were taken into protective custody after it was reported Marcelino, their father, had sexually abused Brenda. Brenda had arrived in the United States on February 2, 2006, to live with her mother and Marcelino. In March 2006, Marcelino fondled Brenda’s breast and vaginal area over her clothing while she sat on his lap. Brenda told her mother, who confronted Marcelino. He admitted he had behaved inappropriately but minimized his actions. Brenda’s mother took no action other than to tell Brenda to inform her of any further sexual abuse.

In November or December 2006, Marcelino called Brenda into his bedroom. Marcelino, who was lying on the bed and wearing only boxer shorts, asked Brenda, “ ‘[d]o you want to sit on the little horse?’ ” Thinking Marcelino wanted to play a game, Brenda straddled his genital area with her face toward him. He bounced up and down, then started to fondle Brenda’s breasts over her clothing. Brenda did not tell her mother about this incident for fear she would call the police or “ ‘put my father on the street.’ ”

Brenda told a school friend about the incident that occurred in November or December 2006. The friend told a teacher at Brenda’s school, and the school contacted SSA. On March 26, 2007, a social worker interviewed Brenda, who described the two incidents of abuse. On the same day, the social worker also interviewed Brenda’s mother, who said she was “ ‘shocked’ ” to learn another incident with Marcelino had occurred.

On March 26, 2007, Marcelino was arrested and incarcerated on charges of violating Penal Code section 288 (lewd or lascivious acts with a child). Brenda and Brandon were taken into protective custody on the same day. During a Child Abuse Services Team interview on March 27, Brenda recounted the incidents in which Marcelino fondled her.

Proceedings in the Juvenile Court

On March 28, 2007, SSA filed a dependency petition naming both Brenda’s mother and Marcelino. The petition alleged failure to protect (§ 300, subd. (b)) and sexual abuse (§ 300, subd. (d)) based on the two incidents of alleged sexual abuse. The detention hearing was held on March 29. Both Brenda’s mother and Marcelino denied the allegations of the petition.

The jurisdiction/disposition report, dated May 1, 2007, reported Brenda and Brandon had been placed with their mother. Marcelino remained in custody and requested that the children not be brought to the jail to visit him.

Later that day, county counsel called Marcelino to testify pursuant to Evidence Code section 776. He invoked the Fifth Amendment and refused to answer the first question. The court advised Marcelino it had ruled he could not refuse to testify on Fifth Amendment grounds because section 355.1, subdivision (f) provided adequate protection against self-incrimination. Marcelino again refused to answer the first question. After giving Marcelino another opportunity to testify, and warning him of the consequences of refusing to do so, the court ordered as a sanction that Marcelino be precluded from presenting any evidence and from conducting any cross-examination of witnesses. No other witnesses were called to testify.

Before Marcelino was called to testify, county counsel offered in evidence SSA’s jurisdiction/disposition report dated May 1, 2007, and addendum reports dated May 15, 23, 31, and June 20, 2007. Marcelino’s counsel objected “to those reports coming in subject to cross[-]examination of the social worker.” After sanctioning Marcelino for refusing to testify, the court asked his counsel: “[Considering that you will not be allowed to cross-examine the preparer, I will allow you to indicate if the court had allowed you to, whether or not you would have cross-examined the preparer of the report.” Marcelino’s counsel responded she would have cross-examined the preparer.

The court found the allegations of the petition (as amended by striking allegation b-6) to be true by a preponderance of the evidence and declared

Discussion

Under Mark A., supra, 156 Cal.App.4th 1124 , the juvenile court erred by ordering Marcelino to testify after he invoked his Fifth Amendment right against self-incrimination, and by sanctioning him when he refused to testify. Mark A., supra, 156 Cal.App.4th at pages 1144-1145, uses the beyond-a-reasonable-doubt standard of Chapman v. California, supra, 386 U.S. 18 , to determine whether the error was prejudicial.

Was the juvenile court’s error harmless beyond a reasonable doubt? The juvenile court precluded Marcelino from presenting any evidence or cross-examining any witnesses. When county counsel offered the SSA reports in evidence, Marcelino’s counsel objected to their admission “subject to cross[-]examination of the social worker.” After the court had sanctioned Marcelino for refusing to testify, his counsel confirmed she would have cross-examined the preparer of the SSA reports. The juvenile court’s order sustaining the allegations of the petition was based entirely on the SSA reports, which were the only evidence received at the hearing.

The importance of cross-examination cannot be doubted: “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” (Davis v. Alaska (1974) 415 U.S. 308 , 316 [ 39 L.Ed.2d 347 , 94 S.Ct. 1105 ], italics omitted.)

In Mark A., supra, 156 Cal.App.4th at page 1146, the juvenile court ordered some of the mother’s testimony stricken as a sanction for the father’s refusal to testify. The appellate panel concluded the error was harmless because “[consideration of the testimony wrongfully stricken would only have bolstered the court’s jurisdictional finding.” (Ibid.) Here, we do not know how the preparer of the SSA reports would have testified on cross-examination or whether cross-examination might have impaired the preparer’s credibility. Thus, we cannot say the juvenile court’s error in precluding cross-examination of the preparer was harmless beyond a reasonable doubt.

We conclude the juvenile court committed prejudicial error by precluding Marcelino from presenting evidence or cross-examining witnesses as

Disposition

The juvenile court’s order and findings sustaining the allegations of the petition under section 300 and declaring Brenda M. and Brandon M. dependents of the court are reversed and the matter is remanded for further proceedings. The order vesting custody of Brenda and Brandon with the mother shall remain in effect.

Rylaarsdam, Acting R J., and Aronson, J., concurred.