Persons Coming Under the Juvenile Court Law. San Bernardino Cnty. Children v. H.A. (In re D.K.)

• Decision Date: 27 July 2017
• Docket Number: E067325
• Citation: San Bernardino Cnty. Children v. H.A. (In re D.K.), E067325 (Cal. App. Jul 27, 2017)
• Court: California Court of Appeals
• Parties: In re D.K. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. H.A., Defendant and Appellant.
• Writing for the Court: FIELDS J.

In re D.K. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDRENAND FAMILY SERVICES, Plaintiff and Respondent, v. H.A., Defendant and Appellant.

E067325

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

July 27, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.Nos. J265318, J265319)

OPINION

APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant, H.A., was the legal guardian of half brothers D.K. and L.B., who were ages eight and 14, when the dependency proceedings began in April 2016. H.A.'s estranged wife, N.A., is the children's maternal grandmother and was their legal co-guardian. H.A. is not a blood relative of the children. For our purposes, the primary allegations of the operative petition stated that H.A. had sexually abused eight-year-old L.B. Other, less pertinent allegations are related to maternal grandmother and W.M. (mother).

H.A. appeals from the juvenile court's jurisdictional and dispositional orders finding the allegations of the petition to be true, removing the children from his physical custody, and terminating his guardianship over them. He contends substantial evidence did not support these orders. But mainly, he challenges the court's order excluding evidence from L.B.'s therapist. At the first jurisdiction/disposition hearing, the therapist testified that L.B. had recanted his sexual abuse allegations. The court initially admitted this testimony but then had a change of heart and determined the psychotherapist-patient privilege barred the evidence. It declared a mistrial on these grounds. The court then denied H.A's motion to admit the therapist's testimony at the second jurisdiction/disposition hearing.

H.A. contends either L.B. waived the psychotherapist-patient privilege or exceptions to the privilege apply. We conclude the court did not err in applying the psychotherapist-patient privilege and affirm the challenged orders.

II. FACTS AND PROCEDURE

A. Background and Prior Referrals

H.A. and maternal grandmother sought guardianship over the children in probate court when mother went to prison in 2010. At the time, H.A. and maternal grandmother were married and living together.

Although they have been married for approximately 15 years, H.A. and maternal grandmother separated in 2014. L.B. was spending weekdays with H.A. and weekends at maternal grandmother's home, where mother also lived since her release from prison. The location of L.B.'s alleged father is unknown.

L.B. has attention deficit hyperactivity disorder and autism. He has also suffered from encopresis since a young age. H.A. received social security benefits for L.B. Maternal grandmother protested that she did not have enough money to care for L.B. and had to ask H.A.—who was very controlling—whenever L.B. needed anything.

The family had two prior referrals that plaintiff and respondent, San Bernardino County Children and Family Services (CFS), had determined were unfounded. In December 2014, three months after H.A. petitioned the probate court to terminate maternal grandmother's guardianship, a referral alleged general neglect by maternal grandmother and sexual abuse of L.B. by H.A. H.A. reported maternal grandmother had been unable to care for the children because of her Vicodin use, but she had stopped using when he sought full custody of the children in family court. Maternal grandmother alleged that H.A. had exposed his penis to L.B. H.A. denied any sexual abuse andasserted L.B. had walked in on him in the shower. L.B. was difficult to interview, but denied any inappropriate touching. CFS determined the allegations against both guardians lacked supporting evidence.

In May 2015, right around the time maternal grandmother unsuccessfully sought a domestic violence restraining order against H.A., a second referral alleged H.A. had sexually abused L.B. A forensic interviewer with the Children's Assessment Center spoke with L.B. in connection with this referral. She noted that he had a speech impediment, rendering him difficult to understand. He also appeared to be developmentally delayed and had difficulty listening and focusing. L.B. reported that H.A. made L.B. "'eat his pee pee and growed,'" and L.B. said he could "show a video on it." When the interviewer asked if that really happened, L.B. replied "he didn't even know." Because he could not provide any more details about the alleged incident, the forensic interviewer felt she could not confirm sexual abuse.

The San Bernardino County Sheriff's Department also filed a report in connection with this referral. L.B. told mother that H.A. made him touch H.A.'s penis and put it in his mouth, and H.A. had also touched L.B.'s penis. But L.B. was unresponsive to the deputy's questioning. The investigating social worker determined the allegations were unfounded, again based on insufficient supporting evidence.

B. Initial Detention

In April 2016, CFS received the present referral alleging H.A. had sexually abused L.B. When CFS arrived, deputies with the sheriff's department were present and hadalready interviewed L.B. L.B. told the deputies about "bad stuff" that happens only at night. L.B. said "Papa" (his nickname for H.A.) "let him eat his privates and he did not like it." L.B. identified his private part by pointing to his penis. He also told them, "Papa let me eat his 'one dick,'" which he described as growing big and going back to normal. This occurred in the kitchen at H.A.'s house.

A forensic interviewer with the Children's Assessment Center interviewed L.B. this time as well. According to the interviewer, he had an unusual presentation, style of speaking, and word choice due to his autism diagnosis. L.B. reported that H.A. "had him do 'propriate stuff'" that he did not like. L.B. described "'eat[ing] his penis,'" and after L.B. ate it, "'it went back to normal.'" L.B. also said "'[t]he pee'" made it taste "'bad, disgusting, horrible,'" and the pee landed on H.A.'s penis. L.B. stated he "ate it and [H.A.] was like this," and then L.B. made his body slack and relaxed while audibly exhaling. H.A. threatened to spank L.B. unless he ate his penis. L.B. further explained that H.A. "'[t]ook a chunk and it growed back to the regular thing. He ripped it off and it was back to normal.'" H.A. was naked. H.A. also gave him a tape of H.A. "'having sex with the camera'" and what looked like "'a real girl.'" L.B. appeared to describe multiple events, indicating these events occurred in H.A.'s bedroom, in the kitchen, and in the bathroom.

H.A. denied the allegations. He explained he had prostate issues that prevented him from maintaining an erection. He believed maternal grandmother was coaching L.B. to make the allegations because they had recently been to family court over custodyissues. H.A. and maternal grandmother had been in a custody dispute for two years. He believed maternal grandmother and mother were using marijuana, and as the owner of their home, he was evicting them.

Since CFS had been investigating, L.B. was staying with maternal grandmother. She had been keeping L.B. home from school because he had been unable to sleep. She was also concerned H.A. would try to pick him up from school and described H.A. as aggressive with her and mother. Maternal grandmother and mother indicated they wanted to seek counseling for L.B. CFS gave them a referral.

The half brother, D.K., denied anyone touching him inappropriately. He did not spend much time with H.A. He divided his time between maternal grandmother, mother, and his father, J.K.

The original petition alleged H.A. had inserted his penis into L.B.'s mouth and ejaculated (Welf. & Inst. Code, § 300, subd. (d)),¹ and this sexual abuse had been ongoing since at least April 2015. CFS filed a separate petition alleging D.K. was at risk of harm based on H.A.'s sexual abuse of L.B. (§ 300, subd. (j).)

In May 2016, the juvenile court found CFS had made the required prima facie showing and detained the children from H.A. The court ordered them to remain in maternal grandmother's custody with supervised weekly visits for H.A., but only if the children wished to visit. It also referred L.B. for immediate counseling.

C. Jurisdiction/Disposition Report and Amended Petitions

When interviewed for the jurisdiction/disposition report, maternal grandmother reported that, three months earlier, L.B. had said H.A.'s "'penis smelled'" and "'got hard.'" She did not report these statements because CFS determined the 2015 allegations against H.A. were unfounded, and she now felt shame and regret over her failure to report. The prior year, L.B. had also drawn male genitalia with crayons, and she showed these drawings to the social worker.

Maternal grandmother and mother had heard from other adults in the community that H.A. had molested them as children, but these individuals feared coming forward now, based on H.A.'s aggressive behavior in the past. Mother wanted maternal grandmother to become L.B.'s guardian when mother went to prison, but she never wanted H.A. to be a co-guardian, and she did not know how this happened. Maternal grandmother asked H.A. to return L.B. to mother when mother was released from prison, but he refused. She did not understand why H.A. insisted on remaining L.B.'s guardian, given that he was not L.B.'s blood relative.

D.K.'s father, J.K., knew L.B. well. He was troubled by the allegations because he had...