Collins v. Superior Court

Decision Date13 October 1977
Citation141 Cal.Rptr. 273,74 Cal.App.3d 47
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn the Matter of Ajamu SWAGGART, a minor. La Ronda COLLINS and Steven Swaggart, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent; LOS ANGELES COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest. Civ. 50499.

Edith S. Newman, Arleta, for petitioners.

Benson Schaffer, Santa Fe Springs and Kenneth A. Krekorian, Beverly Hills, as amici curiae on behalf of petitioners.

No appearance for respondent Court.

John H. Larson, County Counsel, and Sterling R. Honea, Deputy County Counsel, Los Angeles, for real party in interest.

ASHBY, Associate Justice.

There is presently pending in respondent court a proceeding pursuant to former Welfare and Institutions Code section 600, subdivision (d), 1 to declare the infant Ajamu Swaggart a dependent of the juvenile court. Petitioners La Ronda Collins and Steven Swaggart are the indigent parents of the infant. That proceeding was initiated by the Department of Public Social Services with the juvenile court on behalf of the infant minor who was then three months old. It is alleged that baby Ajamu was hospitalized "as a result of physical abuse. Injuries resultant from that abuse are: numerous fractured ribs on both sides, bruised right scrotum and penis, hardening of right testicle, indicating further injury or old blood collected in the scrotum. Mother's explanation of how injuries occurred is not consistant (sic) with medical findings. Further x-rays also showed an old fracture at lower end of minor's tibia." Respondent appointed counsel for petitioners pursuant to former section 634 of the Welfare and Institutions Code. 2 Said counsel moved for appointment of a medical expert pursuant to sections 730 and 952 3 of the Evidence Code. In support of this motion counsel submitted a declaration under penalty of perjury wherein she stated that petitioners had represented to her that they were financially unable to hire a medical expert to assist them in preparation of their defense, and that in order to represent petitioners effectively, counsel required the assistance of a medical expert to interpret real party in interest's medical evidence and to evaluate information which had been communicated to counsel by petitioners. Real party opposed petitioners' request, arguing that "if a court feels an expert is needed to render an opinion on a child's condition, that opinion should be made available to the court so that the court has the necessary facts to properly act for the protection of the child."

In an order dated February 1, 1977, the court ordered a medical doctor chosen by counsel for the mother "appointed to examine the medical records in this matter, to consult with counsel regarding said records, to prepare a written report and testify at the trial, if so requested, pursuant to Evidence Code 730." Respondent further ordered that a copy of the report submitted to counsel be forwarded to respondent and that counsel notify the county counsel of the name and address of the expert chosen.

Instead of designating a medical expert, petitioners brought the present proceeding. Because the petition raises an issue which recurs with some frequency in connection with dependency proceedings, we issued an alternative writ of mandate and set the matter for hearing. 4 We also stayed that portion of respondent's order which required transmittal of the expert's report to respondent court and stayed adjudication on the merits of the dependency proceeding. 5

Counsel's declaration indicated the appointment was sought not only to interpret the medical records but also to evaluate information communicated to counsel by petitioners. The trial court did not appoint the expert for this purpose. Petitioners made no showing whatsoever, other than the bare assertion, that an expert was needed to evaluate information communicated from petitioners. The court could reasonably conclude no expert was needed for this purpose. This is not a case where a doctor is going to conduct an examination of the client. There has been no showing that petitioners' explanation to their counsel as to how the child was injured is one that requires technical expertise to understand, nor does that appear from the nature of the case. It is within the trial court's discretion under section 730 to determine whether an expert is needed. (See People v. Vatelli, 15 Cal.App.3d 54, 61, 92 Cal.Rptr. 763.) The court's refusal to appoint the expert for that purpose clearly implies a finding the expert was unnecessary and that finding is supported by the record. 6 Petitioners made no showing whatsoever, other than the bare assertion, that an expert was needed to evaluate information communicated from petitioners. The court could reasonably conclude no expert was needed for the purpose. This is not a case where a doctor is going to conduct an examination of the client. There has been no showing that petitioners' explanation to their counsel as to how the child was injured is one that requires technical expertise to understand, nor does that appear from the nature of the case. It is within the trial court's discretion under section 730 to determine whether an expert is needed. (See People v. Vatelli, 15 Cal.App.3d 54, 61, 92 Cal.Rptr. 763.) We find no abuse of discretion.

The purpose of these dependency proceedings is to protect and promote the welfare of the child, not to punish the parent. (See former Welf. & Inst.Code, § 502, now § 202; In re Robinson, 8 Cal.App.3d 783, 786, 87 Cal.Rptr. 678.) 7 In order to better effect this purpose, the Legislature provided in Welfare and Institutions Code section 701.7 that "(t)estimony by a parent, guardian, or other person who has the care or custody of the minor made the subject of a (dependency) proceeding . . . shall not be admissible as evidence in any other action or proceeding."

Nevertheless, petitioners insist that the court's appointment of an expert be subject to the limitation that if they do not choose to call the expert as their witness, he may not be called as a witness by any party and his findings, opinions and report must remain confidential. This contention is without merit.

Essentially petitioners wish to expand the ruling in Torres v. Municipal Court, 50 Cal.App.3d 778, 123 Cal.Rptr. 553, and extend it to this civil dependency proceeding. Torres has no application here. Torres was a criminal action in which the defendant was charged with being under the influence of a controlled substance. The defendant requested the assistance of an expert physician-psychiatrist on a confidential basis. The trial court denied that motion and appointed a doctor to " 'determine if a narcotic substance had been introduced into defendant's body.' " (Id. at p. 781, 123 Cal.Rptr. at p. 555.) It was held that the trial court erred in failing to provide the examination to defendant on a confidential basis. The reason why confidentiality was held necessary in the circumstances of Torres was that the examination of defendant had no value apart from its dependence on confidential communications from the defendant to the doctor which bore directly on defendant's guilt of the criminal charge.

" 'Due to the nature of the charge pending against petitioner and bearing in mind the evidence offered by the prosecution in such cases, an examination by Dr. Tweed which did not involve the taking of a history by the doctor or conversation with petitioner could be of little use, if any, to petitioner. Fourteen days elapsed between petitioner's arrest and his request for appointment of Dr. Tweed. Any residual symptoms of petitioner's having been under the influence of a narcotic at the time of his arrest would have been limited to marks on his person suggesting possible injection of a narcotic within a relatively short time prior thereto; such symptoms are not necessarily evidence of narcotic injection. Dr. Tweed could not reasonably be expected to "provide defendant the findings and opinions of an impartial and independent observer" as to such symptoms without inquiry into their cause, the kind of communication that bears directly upon the guilt or innocence of petitioner and of particular importance to petitioner's counsel in planning and managing his defense.' " (Id. at p. 782, 123 Cal.Rptr. at p. 555.)

No such situation is involved here. This is not a prosecution of the parents but a civil proceeding for the protection of the child. The expert is not going to examine petitioners but only the medical records already available. Permitting petitioners to prevent the court or real party from having access to the expert, by petitioners' electing not to call him as a witness, would permit petitioners to suppress information which should be available to the court in conforming to the purpose of the dependency proceedings.

Petitioners assert in support of an equal protection argument that if nonindigent parents privately retained an expert in these circumstances they would have the right to prevent the expert from testifying if they decided not to call him as their own witness. Petitioners cite no authority to support this assertion, which clearly is erroneous. The expert in this case was appointed to examine the infant's medical records and consult with counsel regarding those records. These medical records are not confidential communications from petitioners, and the expert's opinions and conclusions based on these records would not be protected by an attorney-client privilege even if the expert were privately retained. (Oceanside Union School Dist. v. Superior Court, 58 Cal.2d 180, 188-189, 23 Cal.Rptr. 375, 373 P.2d 439; San Diego Professional Assn. v. Superior Court, 58 Cal.2d 194, 201-202, 23 Cal.Rptr. 384, 373 P.2d 448.) Any...

To continue reading

Request your trial
32 cases
  • People v. Hurley, 3482
    • United States
    • California Court of Appeals Court of Appeals
    • August 8, 1979
    ...request for the appointment of such an expert remains within the sound discretion of the trial court. (Collins v. Superior Court (1977) 74 Cal.App.3d 47, 52, 141 Cal.Rptr. 273; Torres v. Municipal Court, supra, 50 Cal.App.3d at p. 784, 123 Cal.Rptr. At the trial court, appellant's points an......
  • Doe v. Mann
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 19, 2005
    ...Cal.Rptr. 726; see also In re Malinda S., 51 Cal.3d at 384, 272 Cal.Rptr. 787, 795 P.2d 1244 (same); Collins v. Superior Court, 74 Cal.App.3d 47, 52, 141 Cal.Rptr. 273 (Cal.Ct.App.1977) ("The purpose of these dependency proceedings is to protect and promote the welfare of the child, not to ......
  • Doe v. Mann
    • United States
    • U.S. District Court — Northern District of California
    • September 29, 2003
    ...S., 51 Cal.3d 368, 384, 272 Cal.Rptr. 787, 795 P.2d 1244 (1990) (superseded by statute on other grounds); Collins v. Superior Court, 74 Cal.App.3d 47, 52-53, 141 Cal.Rptr. 273 (1977). Parents have limited rights against DSS in the proceedings and cannot invoke the Fourth Amendment exclusion......
  • People v. Crandell
    • United States
    • California Supreme Court
    • September 15, 1988
    ...sound discretion of the trial court. (People v. Worthy (1980) 109 Cal.App.3d 514, 521, 167 Cal.Rptr. 402; Collins v. Superior Court (1977) 74 Cal.App.3d 47, 52, 141 Cal.Rptr. 273.) These same principles govern a request for appointment of advisory Defendant in this case voiced on several oc......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT