When a Child Doesn't Need to Testify

In April of 2017, Step-daughter [SD] told her maternal uncle [U] that Father [F] was in the bedroom with his biological daughter [D] with the door closed. U listened at the door, and heard D say to F, “You need to put your clothes on.” U called Mother [M], and she came home from work. M tried to open the door, but found it locked. M demanded that F open the door. He did so, and got into the bed with D. According to M, D looked afraid. (At the time, SD was thirteen years old, and D was eight years old.)

Also on that day, M also found a note from SD wanting to commit suicide. M confronted SD (her daughter from a previous marriage), and SD confessed that F had been molesting her since she was eleven, and she was afraid that F was now grooming D to molest her as well.

M took SD and D to the police station to file a complaint. The girls were interviewed by the Child and Adolescent Sexual Abuse Resource Center (CASARC), who found the girls statements credible. M moved out with SD and D.

In May of 2017, the San Francisco Human Services Agency [Agency] opened a juvenile dependency hearing regarding the girls. At the detention hearing, the juvenile court found M was not at fault, and allowed her to retain custody of the girls. The court also granted a restraining order against F preventing him from having any contact with the girls.

In June of 2017, at the dependency hearing Agency requested that M be given full custody of the girls, with no contact from F based on the CASARC statements the girls’ made. F wanted joint custody of D and stated that he never touched the girls. He further argued that the court could not base its ruling without the court testimony of the girls.

The juvenile court granted Agency’s request and gave sole custody to M based on the CASARC statements. The judge declared the girls unavailable to testify stating that it would result in trauma to them.

F appealed, and the Appellate Court agreed with the juvenile court:

Under California Evidence Code Section 240, “a witness is unavailable to testify if the witness is dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity. The illness or infirmity …must be of comparative severity; it must exist to such a degree as to render the witness’s attendance, or his [or her] testifying, relatively impossible and not merely inconvenient.”

In the case of Jennifer J., the Fourth District Court of Appeal determined that a juvenile court has “discretion to exclude the testimony of a child in order to avoid psychological harm to the child, even though that testimony is relevant, the child is competent to testify, and the child is both practically and legally ‘available’ to testify,” including under section 240.

The Appellate Court stated, “Given the overriding objective of the dependency hearing to preserve and promote the best interests of the child, it would be a perversion of the procedure to impose upon it a requirement that the child’s testimony always be presented, regardless of the trauma resulting to the child therefrom, and regardless of the necessity of such testimony in the resolution of the issues before the court.”

Please note this case is a juvenile dependency case, not a criminal trial where the standard of unavailability is higher.

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