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Name: In re Daniela G.
Case #: A152434
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 05/29/2018

Juvenile court properly refused to compel minors to testify where possible benefit of testimony was outweighed by psychological harm it would cause to the minors. Appellant W.G. was accused of molesting his 13-year-old stepdaughter, and grooming his 8-year-old daughter Daniela G. for sexual abuse. Father subpoenaed stepdaughter and Daniela to testify at the combined jurisdictional and dispositional hearing. The Department moved to quash the subpoena under Evidence Code section 240 because testifying could cause Daniela “psychological injury.” Two social workers testified that having Daniela testify would be extremely detrimental because of her age and the nature of the allegations against her father. The juvenile court admitted several reports, interviews, and out of court statements by both girls. The juvenile court ruled that neither Daniela or stepdaughter would be required to testify. Citing In re Jennifer J. (1992) 8 Cal.App.4th 1080, the court found that the harm of having to testify in front of father outweighed the need for their testimony. It found the petition true, dismissed the petition, and awarded full custody to mother, denying visitation with W.G. On appeal, W.G. did not challenge the admission of any of the Agency’s evidence, including the out of court statements. He argued that the juvenile court erred by not requiring either Daniela or stepdaughter to testify because the court did not consider the possibility of having them testify in chambers outside his presence, and there was insufficient evidence that either girl would be traumatized by testifying. He also argued that the juvenile court’s ruling violated his due process rights to confront and cross-examine witnesses, and to present evidence. The appellate court rejected the arguments and affirmed. W.G. forfeited his argument that the juvenile court was required to consider having the minors testify in chambers because it was not raised below. The juvenile court also did not need to find the minors unavailable to testify under section 240 because the juvenile court excused them under Jennifer J., not section 240. A juvenile court has discretion to refuse to require a child to testify even when section 240’s requirements are not met if the material effect of the child’s testimony on the relevant issues is outweighed by the psychological injury the child risks by testifying. The juvenile court’s exclusion of the girls’ testimony here comported with the principles of due process. There was sufficient evidence that the girls would have been psychologically harmed by testifying. The testimony would not have helped resolve any disputed issue. Daniela never described sexual abuse, but only said that she gave father massages, a fact he did not dispute. Nor did father deny any of the details as reported by both stepdaughter and another witness about being in bed with Daniela. The juvenile court properly applied the principles set forth in Jennifer J. in excusing the minors from testifying.