In re M.S. CA2/1 ( 2020 )

Filed 12/29/20 In re M.S. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re M.S., a Person Coming B304998
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP05789)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
J.S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Kim L. Nguyen, Judge. Affirmed.
John E. Carlson for Defendant and Appellant.
Mary C. Wickham, County Counsel, and Jacklyn K. Louie
Deputy County Counsel, for Plaintiff and Respondent.
Aida Aslanian, under appointment by the Court of Appeal,
for minor M.S.
_______________________________
The juvenile court sustained allegations in a dependency
petition under Welfare and Institutions Code section 300,
1
subdivisions (b), (d), and (j), regarding J.S.’s (Father) sexual
abuse of his former girlfriend’s daughter, L.G., and the resulting
risk of harm to Father’s biological daughter, M.S. (L.G.’s half
sibling). The juvenile court also removed M.S. from Father’s
custody. On appeal, Father challenges the jurisdictional findings
and the disposition order regarding M.S. on grounds the trial
court erred (1) in granting L.G.’s motion to quash Father’s
subpoenas for L.G.’s medical records under the physician-patient
privilege and excluding, under Evidence Code section 352,
evidence Father sought to introduce at the adjudication hearing
that L.G. tested positive for a sexually transmitted disease
during these proceedings and Father did not; and (2) in denying
Father’s motion to disqualify the children’s counsel, made after
the adjudication hearing, on grounds counsel had a conflict of
interest in representing both L.G. and M.S., and Father did not
2
receive a fair hearing as a result. We reject Father’s contentions
and affirm the jurisdictional findings and the disposition order
regarding M.S., as to Father.
1
Statutory references are to the Welfare and Institutions
Code unless otherwise noted.
2
On appeal, Father does not challenge the sufficiency of
the evidence supporting the jurisdictional findings.
2
BACKGROUND
I. The Family
When the Los Angeles County Department of Children and
Family Services (DCFS) received the referral in this case in
September 2019, 15-year-old L.G. lived with her mother, M.R.
3
(Mother). The whereabouts of L.G.’s biological father, J.G., were
unknown, and he did not participate in these dependency
proceedings. Mother and Father shared custody of their then
five-year-old daughter M.S. under an informal arrangement.
They had ended their relationship when M.S. was around one
and a half years old. Up until a year before the referral at issue,
L.G. sometimes accompanied M.S. when M.S. spent time with
Father.
II. The Referral
In August 2019, at the start of her junior year of high
school, L.G. was assigned an essay about challenges she had
faced in her life. She wrote in the essay that a former boyfriend
of Mother sexually abused her, starting when she was 10 years
old, and culminating in a rape the weekend before her sophomore
year of high school (August 2018), when she was 14 years old.
L.G. did not describe the rape or any of the other incidents of
4
sexual abuse in her essay.
On September 3, 2019, about two weeks after L.G. wrote
the essay, a school counselor interviewed L.G. and filled out a
3
Mother is not a party to this appeal.
4
L.G. also wrote in the essay about not having her
biological father in her life and about witnessing domestic
violence between Mother and a former boyfriend of Mother (not
Father).
3
Suspected Child Abuse Report form, as a mandated child abuse
reporter under Penal Code section 11166. On the form, the
counselor provided the following summary of L.G.’s account of the
sexual abuse by Father, as provided during the interview: “On
8/11/2018 L[.G.] was laying [o]n the edge of the bed in [Father]’s
home when L[.G.]’s sister, M[.S.] was also sleeping in. While
L[.G.] was pretending to be asleep, [Father] touched L[.G.]’s
buttocks ‘over clothes’ for about 5 min then took of[f] her shorts
and underwear while he was masturbating. He then proceeded
to grab L[.G.]’s breast under her shirt. He continued to
masturbate and ejaculated on her buttocks. Then, he penetrated
his penis into L[.G.]’s [v]agina. She began to cry and he
immediately put his and L[.G.]’s shorts back on. He then began
to rub Vaseline in between L[.G.]’s legs. [Father] then told L[.G.]
that he was going to kill himself because he was going through a
hard time. [Father] did not kill himself, instead he took L[.G.]
and M[.S.] to Disneyland the same day of [the] incident to ease
the tension. L[.G.] also claims that [Father] began molesting
[her] in fifth grade and continued th[r]ough the age of 14.”
Also on September 3, 2019, the school counselor contacted
DCFS and made a referral regarding L.G.’s account of sexual
abuse by Father.
III. DCFS’s Detention Report and Dependency Petition
As stated in DCFS’s Detention Report, prepared on or
about September 5, 2019, a DCFS social worker contacted Mother
by telephone and in person on September 3, 2019, the date of the
referral, and informed her about L.G.’s statements regarding
sexual abuse by Father. According to the social worker, Mother
appeared surprised and became tearful. She stated L.G. had not
4
told her about the abuse. Mother agreed to immediately bring
L.G. to a DCFS office for an interview.
When Mother and L.G. arrived at the DCFS office, Mother
asked to speak privately with the social worker before L.G.’s
interview. Mother stated L.G. had just disclosed during the drive
to the office that Father raped her in August 2018. Mother told
the social worker that she “asked [L.G.] if she bled as she was a
virgin.” In response to that inquiry, L.G. explained to Mother
that Father penetrated her anus with his penis. L.G. also told
Mother that after the incident, Father stated he was very
depressed about the death of his brother, which had occurred two
months before the incident. Mother recalled Father’s demeanor
had changed, and he had appeared depressed, after his brother’s
death. L.G. also told Mother that after the incident, Father took
her and M.S. to the bank, to visit his brother’s grave, and then to
Disneyland. Mother recalled that after the trip to Disneyland,
L.G. stopped sleeping at Father’s home. Mother explained L.G.
“was not particularly close to [Father], and would only sleep over
at the urging of [M.S.]” During the drive to the DCFS office,
which only lasted a few minutes, L.G. did not disclose to Mother
any other incidents of sexual abuse.
Mother stated that during the two and a half years she was
in a relationship with Father, he “spent a significant amount of
time at her home, but never officially moved in . . . .” He
“maintained a separate residence with [M.S.’s] paternal
grandparents,” where he continued to live at the time of the
referral. Mother told the social worker that L.G. “was left alone
with [Father] on numerous occasions . . . .” Mother also
explained that although L.G. stopped visiting with Father in
August 2018, L.G. continued to have contact with him, up to the
5
time of the September 3, 2019 referral, because Mother used L.G.
as a go-between during M.S.’s custody exchanges because Father
“would make inappropriate comments to [Mother] during the
child’s [M.S.] exchange.”
Mother reported Father was “ ‘a good dad to M[.S.],’ ” and
Mother had no concerns about M.S. (or L.G.) being in Father’s
custody “until this disclosure.” Mother explained she did have a
talk with Father several months before, after M.S. told Mother on
a few different occasions that “she no longer wanted to take a
‘purple little ball that she had to put under her tongue to make
her go to sleep’ that was given to her by [Father].” When Mother
asked Father about it, he stated the pills were vitamins his sister
had given him. His explanation “did not make any sense” to
Mother because she knew he and his sister were “not on speaking
terms.” Mother stated she did not take further action on the
matter because it had been several months since M.S. mentioned
the pills.
After speaking with Mother, the social worker interviewed
L.G. in private. According to the Detention Report, L.G.
5
indicated “the allegations [were] accurate as reported.” She
explained she disclosed the rape in the school essay and to a
friend. She came close to telling Mother about it on two earlier
occasions, but she could not bring herself to do so.
5
It is not clear if this statement refers to the report made
by the school counselor, which described a vaginal penetration, or
the report made by Mother, which described an anal penetration.
The Detention Report does not provide a summary of L.G.’s
statements about the reported rape during this particular
interview with the social worker.
6
L.G. stated Father “first began to touch her
inappropriately” when she was around 10 years old and in the
fifth grade. Sometimes while she was trying to sleep, Father
would lift her up, “sit her on his genital area,” and push on her
back so that her body pressed against his genitals. She would
pretend to be asleep during these encounters because “she was
terrified and did not know how to react.” L.G. further explained
that as she “matured,” Father “ ‘wrestled’ with her, and used this
as an opportunity to ‘press his body against [her,]’ specifically the
genital areas.” She stated Father “began having erections during
these encounter[s] as she entered adolescence (approximately 12
years old).” These incidents occurred in Mother’s home about
once a week until Mother and Father ended their relationship.
L.G. reported that Mother was in a different room or at a
neighbor’s home during these incidents. After Mother and
Father’s relationship ended, the incidents continued to occur
when L.G. accompanied M.S. to Father’s home, at M.S.’s urging.
On at least three such occasions, Father asked L.G. “to change
from her jeans to his basketball shorts,” telling her “ ‘it was more
comfortable.’ ” L.G. told the social worker, she “ ‘figured out that
he could feel more’ ” when she was wearing basketball shorts
instead of jeans.
DCFS reported the sexual abuse allegations to law
enforcement. Two police officers responded to the DCFS office,
6
and the officers and the social worker privately interviewed L.G.
6
To avoid repetition, we do not summarize here statements
L.G. made in this interview that are consistent with statements
she made in her earlier interview with the social worker. We
summarize additional information L.G. reported in this
subsequent interview. As discussed below, purported
7
As set forth in the Detention Report, L.G. explained that during
the incidents that occurred when she was trying to sleep
(described above), after Father picked her up, he would “sit her
on his genital area” or “lay her on him (stomach to stomach).”
Neither she nor Father said anything during, or had any
discussion about, these incidents. While Mother and Father were
in a relationship, these incidents occurred at Mother’s home and
sometimes at Father’s home. At Mother’s home (a one-bedroom
apartment), L.G. either slept in the same bed as Mother and
Father, on the floor of the bedroom, or on the couch (presumably
in the living room).
L.G. stated that during the “ ‘wrestling’ ” incidents that
began when she entered middle school (described above), Father
“would tell [her] to ‘slap him’ and when she refused, he would
take her hand and make her slap him on the face.” He also
pulled her hair during the wrestling incidents. When L.G. “would
feel [Father] becoming erect” during the wrestling incidents, as
he “press[ed] his genital area against her genital area,” she
“would kick him or push him away.”
L.G. described to the police officers and the social worker
an incident when she was 13 years old (which would have been
after Mother and Father’s relationship ended). She stated she
inconsistencies among L.G.’s various interviews and trial
testimony, as characterized by Father, are central to Father’s
contentions on appeal. Thus, with each successive interview and
L.G.’s trial testimony, we aim to summarize information that is
in addition to or different from information L.G. provided before
(as reported by L.G. or those to whom she disclosed the
information). Some repetition is unavoidable, however, in
recounting additional or different information regarding the
incidents of sexual abuse.
8
was lying down with her eyes closed (presumably at Father’s
home), when Father briefly “touched her under her shirt on top of
her bra.”
L.G. also discussed “the referral incident” with the police
officers and the social worker. L.G. reported the incident
occurred at Father’s home when she was 14 years old. M.S. had
asked L.G. to accompany her to Father’s home. They spent the
night there and were supposed to return to Mother the next
morning. The three of them slept in Father’s bed, with Father on
the side of the bed against the wall, four-year-old M.S. in the
middle, and L.G. on the other side of the bed.
According to L.S., at around 5:00 a.m., on the morning after
she spent the night at Father’s home, she woke when Father left
the bed to go to the bathroom. When he returned, he pushed her
to determine if she was awake, and she stayed still. Around 10
minutes later, he picked her up, stating she was “ ‘about to fall off
the bed,’ ” although she was “nowhere near the edge.” After he
put her down, L.G. “ ‘moved in towards [her] sister more,’ ” lying
on her stomach. Father climbed on her back and pulled down her
jeans and underwear. He masturbated and ejaculated on her
legs. Then he penetrated her anus with his penis “several times.”
L.G. cried, as she was “terrified” and “in great pain.” When
Father “finished, he applied petroleum jelly on her legs and tried
to pull up her pants while he apologized to her.” L.G. “went to
the bathroom to clean the fluids off her body as she continued to
cry.” She stated that her crying woke M.S. and M.S.’s paternal
grandfather (who, as noted above, lived with Father). M.S. tried
to comfort L.G. According to L.G., Father was also crying, and he
was upset that L.G. refused to look at him. He told L.G. “that he
would kill himself if she ever disclosed” what occurred.
9
L.G. also reported that later the same morning, Father took
her and M.S. to the bank, and showed them a bank statement.
He told L.G. that all the money in his accounts was for her and
M.S. Then, Father took the girls to his brother’s grave.
Thereafter, he asked them what they wanted to do. M.S. said she
wanted to go to Disneyland. L.G. agreed to go to Disneyland
because she “did not want to leave M[.S.] alone with [Father],
after what he had done to her [L.G.]” After the Disneyland trip,
L.G. stopped visiting Father, and she “attempted to limit the
amount of contact she had with him.”
L.G. stated she did not seek medical treatment after Father
anally penetrated her. She reported that “for at least a week or
more, she was depressed and had feelings of loss of pleasure in
things she once enjoyed, difficulty sleeping, etc.” She told the
officers and social worker that she was interested in going to
7
therapy to address the sexual abuse.
On September 4, 2019, the day after Mother’s and L.G.’s
interviews, a DCFS social worker interviewed Father. He denied
sexually abusing L.G. (or M.S.). He referred to L.G. as his
stepdaughter. He stated L.G. “would come over to his house with
her sister M[.S.] and spend the night and [the] girls would sleep
on the bed and he would ‘sleep on the floor.’ ” He lived in a two-
bedroom apartment. He explained M.S.’s paternal grandfather
slept in the other bedroom, “so he would share the room with the
girls when they came over.” He said he could not recall the last
time L.G. slept at his apartment, but he knew “ ‘it was a while
7
Soon thereafter, L.G. began counseling, and she continued
to attend throughout the course of these proceedings.
10
ago.’ ” He reported he continued to see M.S. every other
weekend.
On September 6, 2019, DCFS filed a dependency petition
under section 300, subdivisions (b), (d), and (j), alleging Father’s
sexual abuse of L.G. endangered L.G. and placed M.S. at risk of
8
harm. DCFS did not detain L.G. or M.S. from Mother, but
detained M.S. from Father.
At the September 9, 2019 detention hearing, the juvenile
court found DCFS made a prima facie showing that L.G. and
M.S. were persons described by section 300. The court ordered
M.S. detained from Father, and L.G. and M.S. to remain released
to Mother. The court ordered monitored visitation between
Father and M.S. and required Father to stay at least 100 yards
away from L.G. The court also ordered DCFS to obtain medical
services for both girls at a Medical Hub Clinic.
IV. Forensic Interview of L.G.
On September 11, 2019, about a week after her interviews
with the police officers and the social worker, L.G. submitted to a
forensic interview conducted by the USC Child Interviewing Lab.
The juvenile court admitted the DVD and transcript of the
interview into evidence at the February 3, 2020 adjudication
hearing (along with all reports DCFS had submitted up to that
point).
L.G. stated that the incidents of molestation by Father
began during the second semester of fifth grade, when she was
8
The petition also included an allegation about Father’s
alcohol use, based on Mother’s statements to the social worker
(not described herein). The juvenile court later dismissed that
allegation at the adjudication hearing, finding DCFS did not
meet its burden of proof as to that allegation.
11
nine years old. The first incident of Father picking her up and
placing her on top of him occurred in Mother’s bedroom, when she
was trying to fall asleep in Mother’s bed. After five to eight
minutes of Father pressing down on her lower back, causing her
body to rub against his penis, he moved her back onto the bed. A
few minutes later, he left the room. Neither of them spoke
during the incident. L.G. stated her eyes filled with tears after
Father left the room because she did not want him to touch her
like that.
L.G. explained that the incidents of Father picking her up
and placing her on top of him always occurred in her Mother’s
bed. She described one such incident that occurred while there
was a party going on in the living room for Mother’s birthday,
and her younger cousin was on the floor of Mother’s bedroom
during the incident.
During this interview, L.G. described an additional incident
of molestation—a “wrestling” incident—that she stated occurred
at Father’s home the night before Father anally penetrated her.
Although she told the police officers and the social worker about
wrestling incidents with Father, as set forth above, she did not
tell them about this particular wrestling incident. L.G. stated
she and M.S. were on the couch in Father’s apartment. M.S.’s
paternal grandfather was not yet home. Father “pinned [L.G.’s]
arms down” and “taunt[ed]” her, stating he was stronger than she
was. She “tried to push up, but [she] couldn’t.” He rubbed his
penis against her vagina. She pushed him with her legs, and he
moved off her.
L.G. stated this same type of wrestling incident had
occurred around 10 to 15 times. She explained, “I would like say
like that I was stronger than him or that I could like beat him up
12
or whatever, and then he’d say that he was stronger than me,
and that I couldn’t get up because he was pushing down on me,
and then he continued that and then he’d grind up against
me . . . .” She also stated Father would sometimes ask her to slap
him, and if she did not, he would grab her wrist and cause her to
slap him (as she had relayed to the police officers and the social
worker). She added that Father would also sometimes put his
mouth on her ear, “kind of nibbling on it.” If she felt that
Father’s penis was erect during these incidents, she would use
her legs to push him off her.
L.G. told the interviewer about sleeping in bed with Father
and M.S. the night before the final incident of sexual abuse. She
stated she was sleeping on her stomach, and Father would climb
over her and rub his body against hers each time he exited or
came back to bed. She woke around 5:00 a.m. About 30 minutes
later, Father climbed onto her back and began rubbing his penis
against her buttocks. She heard him take off his basketball
shorts and then his underwear. He rubbed his penis against her
buttocks a few more times. Then he began masturbating. He
took off the basketball shorts he had given her to wear, and then
he pulled down her underwear. He touched her vagina with his
finger. He rubbed his penis against her buttocks and vagina,
skin-to-skin. He grabbed her breasts under her shirt and bra.
Then he penetrated her anus with his penis for a few seconds.
She cried in pain, and he stopped and climbed off her. At some
point prior to the penetration, he ejaculated onto her buttocks,
legs, and back.
L.G. stated that after Father climbed off her, he “pulled up
[her] underwear really quick.” Then he put Vaseline on her legs
and lower back. He told her to “stop crying” and “calm down” so
13
she would not wake M.S. and M.S.’s paternal grandfather. She
continued to cry. M.S. woke up and started rubbing L.G.’s arm.
Then M.S. used either her hand, a napkin, or a wipe to rub L.G.’s
lower back. Father continued to put Vaseline on the back of
L.G.’s legs. M.S.’s paternal grandfather entered the room “and
asked what was wrong.” Father said something in Spanish that
L.G. could not recall. The paternal grandfather responded, “oh
ok,” and left the room, closing the door. Father told L.G. and
M.S. to get ready to leave. L.G. got dressed, helped M.S. get
dressed, and they went to the car. L.G. stated she was still
crying when they went to the car.
As L.G. was starting to tell the interviewer about their trip
to the bank, she stated: “Oh wait I missed a part that he told me.
We were still in the, we’re still in the room and I was still crying.
He kept telling me to look up at him and he said he was gonna
kill himself and that he didn’t need to do it because he was just
depressed over his brother’s death []. And he told me, he told me
that he was sorry a few times. He told me to look up at him a
bunch of times and told me he was gonna kill himself like five
9
times.”
9
We include this deviation in L.G.’s chronology of events
because Father highlights it in support of his argument that
counsel for L.G. and M.S. could not effectively represent M.S.
without challenging “conflicts” or “discrepancies” in L.G.’s
accounts of the events, which Father claims that counsel did not
do because she had an actual conflict of interest in representing
both children. As explained below, we conclude the juvenile court
did not err in concluding there was no actual conflict of interest
in counsel’s representation of L.G. and M.S.
14
L.G. resumed telling the interviewer about the trip to the
bank. She stated that when Father returned to the car after
going to the bank, he showed her and M.S. a document on his
phone, and he pointed to a number on it. He told them “all that
money that was there” was for her and M.S. to use when they
went to college. Then he asked them what they wanted to do.
L.G. did not answer. M.S. told him she wanted to go to
Disneyland. He said he would take them to Disneyland, but first
he took them to his brother’s grave. Thereafter, he took them to
Disneyland, “and he pretended like nothing ever happened that
day.” L.G. stated her body was still in pain when they went to
Disneyland. A few months later, she told her friend that Father
had raped her.
V. Jurisdiction/Disposition Report
As set forth in DCFS’s October 21, 2019
Jurisdiction/Disposition Report, during a September 30, 2019
interview with a DCFS dependency investigator, L.G. stated that
after Father sodomized her and put Vaseline on her, he gave M.S.
“a wet wipe” that M.S. used to wipe L.G.’s back. In the report,
DCFS characterized L.G.’s statements regarding Father’s sexual
abuse as “consistent.”
The dependency investigator also interviewed Mother on
September 30, 2019. DCFS wrote in the Jurisdiction/Disposition
Report: “Mother also indicated that M[.S.] told her once that her
‘daddy would put a “pica” on the back of L[.G.]’s legs.’ In Spanish
pica means bite or prick. M[.S.] also told her that she had taken
a wipe and wiped off something from L[.G.]’s leg. Mother stated
that M[.S.] told her this shortly after the incident where [Father]
allegedly abused L[.G.].”
15
On October 3, 2019, the dependency investigator
interviewed M.S.’s paternal grandfather, who stated he did not
believe the allegations against Father were true. He indicated
Father had always treated L.G. like a daughter. DCFS wrote in
the Jurisdiction/Disposition report: “He [the paternal
grandfather] did state that on the night in question he did come
into [F]ather’s room because their bathrooms were adjacent to
each other and he heard that [F]ather was awake. He stated that
he remembers [F]ather and M[.S.] were sleeping on the bed and
that L[.G.] was sleeping on the floor. He stated he does not
remember saying anything to [F]ather and does not believe L[.G.]
was crying at the time which is why he did not ask her any
questions.”
DCFS reported in the Jurisdiction/Disposition report that
Father’s visits with M.S., which were monitored by M.S.’s
maternal grandmother, were going well. DCFS recommended the
juvenile court order reunification services for Father.
VI. Pre-Trial Submissions and Motions
On October 18, 2019, Father filed written objections to
L.G.’s statements in DCFS’s reports, the police report, and the
10
school essay on hearsay grounds. (§ 355.)
In a Last Minute Information for the Court, dated
December 12, 2019, DCFS reported Father was arrested for the
10
Father also objected on the same grounds to witness
statements that we have not referenced in this opinion because
the juvenile court sustained the objections at the February 3,
2020 adjudication hearing.
16
11
sexual abuse of L.G., and he was currently out on bail. DCFS
also stated Father had completed a parenting class.
In an amended witness list for the adjudication hearing,
filed January 24, 2020, Father indicated he planned to call,
among other witnesses, two doctors who would testify about
L.G.’s positive test results for a sexually transmitted disease,
another doctor who would testify about Father’s negative test
results for a sexually transmitted disease, and L.G.’s school
counselor who would testify about L.G.’s statements regarding
12
the sexual abuse. Father had served subpoenas for attendance
at trial and for production of documents on the two doctors who
had treated L.G., seeking all medical records from January 1,
2018 to the present, and on the school counselor, seeking records
of all therapeutic services.
On January 29, 2020, counsel for L.G. and M.S. filed on
behalf of L.G. a motion to quash the subpoenas directed to the
two doctors who had treated L.G., as well as the subpoena
directed to L.G.’s school counselor. Counsel argued in the motion
(1) that Father failed to properly serve the subpoenas on L.G.,
and (2) that the subpoenas sought records protected by the
physician-patient privilege.
In a Last Minute Information for the Court, dated
February 3, 2020, DCFS reported on statements M.S. made to
her therapist, about two weeks before her sixth birthday,
11
The outcome or status of Father’s criminal case is not
clear from the record.
12
All of these medical tests were conducted more than a
year after the last incident of sexual abuse occurred, according to
L.G.’s statements.
17
regarding the events of August 11, 2018 (the date of the reported
rape), when she was four and a half years old. DCFS stated in
the Last Minute Information for the Court: “[The social worker]
asked for [the therapist] to relay what happened during the
session. [The therapist] stated that she started talking with
M[.S.] about her missing her dad. [The therapist] explored if she
understands why she can’t see her dad every day. M[.S.]
reported that she understands her dad did something bad to her
sister. [The therapist] inquired as to what [F]ather did. M[.S.]
reported that she was visiting at her dad’s house and L[.G.] was
there. M[.S.] reported that she remembers that she was sleeping
and when she woke up she saw L[.G.] crying. M[.S.] stated that
she also saw ‘pica’ on L[.G.]’s back. [The therapist] was not able
to get clarification as to what ‘pica’ was. M[.S.] reported that she
helped L[.G.] by wiping it off her back. [The therapist] inquired
where [F]ather was at this time. M[.S.] reported that her dad
was in the room. M[.S.] reported that she saw her dad wearing
pajama shorts. M[.S.] stated that she didn’t see anything
physically happen to L[.G.] M[.S.] disclosed feeling scared. She
had no other concerns. M[.S.] has expressed being happy and
wants to sleep.”
VII. Adjudication
A. Evidentiary rulings
At the outset of the February 3, 2020 adjudication hearing,
the juvenile court overruled Father’s hearsay objections to L.G.’s
statements in DCFS’s reports, the police report, and the school
essay, as L.G. was present in court as a witness for DCFS and
available for cross-examination by Father’s counsel.
Thereafter, the juvenile court heard oral argument on
L.G.’s motion to quash the subpoenas directed to her two treating
18
physicians and to her school counselor. Father’s counsel argued
the juvenile court should deny the motion to quash as to the two
doctors because L.G. waived the physician-patient privilege by
failing to object when DCFS distributed to all parties its
Delivered Service Log or “Title XX’s,” which disclosed L.G. tested
positive for Chlamydia (a sexually transmitted disease) at a
medical evaluation conducted at a Medical Hub Clinic after
DCFS filed the dependency petition in this case (more than a
year after the last reported incident of sexual abuse). Father’s
counsel stated Father was “prepared as well to put [his] medical
records before the court to demonstrate that he does not have
Chlamydia, and he could not have given [L.G.] Chlamydia.”
Father’s counsel argued evidence of L.G.’s positive test
result for a sexually transmitted disease was relevant to these
proceedings because L.G. denied engaging in sexual activity with
anyone other than Father, as set forth in DCFS’s Delivered
Service Log, and her positive test result for a sexually
transmitted disease demonstrates “she’s being deceitful to the
Department [DCFS] and to her mother.” Counsel further argued,
if L.G. “has manifestations” of the infection, she “knew about the
Chlamydia. She maybe was even told by somebody else that they
had given her Chlamydia. This child had to find a scapegoat.
And the person that was most easily a scapegoat to her was a
person that her mother does not like at all. And that is a reason
for her to blame my client -- among other things -- but to blame
my client to get the focus off of her and how she has apparently
become sexually active and to blame somebody else for the reason
she got Chlamydia.”
The juvenile court granted L.G.’s motion to quash the
subpoenas seeking her medical records. The court concluded L.G.
19
did not waive her physician-patient privilege because she did not
put her medical condition at issue in these proceedings, so the
patient-litigant exception to the physician-patient privilege did
not apply. The court did not reach the other ground on which the
motion to quash was based—that service of the subpoenas on
L.G. was improper.
The juvenile court also excluded under Evidence Code
section 352 all evidence of L.G. testing positive for Chlamydia
(including witness testimony), as well as evidence Father sought
to admit that he “does not have Chlamydia, never had
Chlamydia, and has never been prescribed the medication that is
needed to treat Chlamydia.” The court found the “probative
value of [L.G.] testing positive for Chlamydia or not, the
probative value of her being sexually active with anyone but
[Father] or not[,] is of limited probative value,” and such evidence
“is substantially outweighed by the likelihood of undue
13
prejudice.”
13
The juvenile court deferred its ruling on L.G.’s motion to
quash the subpoena directed to L.G.’s school counselor (which
sought records of all therapeutic services provided to L.G.) until
the court had an opportunity to review the documents the
counselor brought to court in response to the subpoena. During
the second day of the adjudication hearing, on February 4, 2020,
the court admitted into evidence the Suspected Child Abuse
Report form the school counselor prepared (referenced above) and
excluded other documents the counselor brought to court in
response to the subpoena.
20
B. Witness testimony
1. L.G.
On February 3, 2019, the first day of the adjudication
hearing, L.G. and M.S.’s counsel called L.G. as a witness. L.G.
testified in chambers, with all counsel present. She discussed the
various incidents of sexual abuse she had disclosed before,
14
beginning with the rape. L.G. testified that when M.S. woke
after the incident and asked what was wrong with L.G., Father
told M.S. “he put pica stuff on [L.G.]’s back.” L.G.’s
understanding was that “pica stuff” meant something that
burned. M.S. climbed off the bed and went to get a wipe to clean
the stuff off L.G.’s back.
L.G. testified that the wrestling incident at Father’s home
on August 10, 2018 happened on the bed in Father’s bedroom
(and not on the couch as she had stated in her forensic interview).
She added that the incident began when Father came to the bed,
where she was lying, and gave her a hug and then told her he
loved her. She stated she spent the night at Father’s home on
three occasions and a wrestling incident occurred on each of those
three occasions.
Father’s counsel asked L.G. if she tested positive for
Chlamydia, and the trial court sustained the other parties’
objections under Evidence Code section 352, consistent with the
court’s prior ruling.
14
We do not summarize here all of L.G.’s testimony about
the various incidents of sexual abuse, as we have described her
statements about these incidents above. We highlight here
additional or different information in L.G.’s testimony.
21
2. Mother
On February 4, 2019, the second day of the adjudication
hearing, L.G. and M.S.’s counsel called Mother as a witness.
During direct examination, Mother testified about the informal
custody arrangement regarding M.S. that she and Father
established around two years before the adjudication hearing.
Mother explained she and Father shared custody of M.S. during
the week and alternated weekends with her. When it was a
parent’s turn to have M.S. for the weekend, M.S. spent Friday
night at that parent’s home. The schedule was flexible, and
Mother and Father would deviate from the schedule to
accommodate each other.
During cross-examination by Father’s counsel, Mother
acknowledged that on occasion, Father picked up M.S. from
Mother at 5:00 a.m., due to Mother’s early work schedule.
Father’s counsel showed Mother a series of text messages
between Mother and Father, indicating Father either picked up
M.S. from Mother, or dropped off M.S. to Mother, at around 5:00
a.m. on various dates not connected with the events at issue in
this case. Mother authenticated these text messages, and the
juvenile court admitted them into evidence.
Father’s counsel also showed Mother a series of text
messages between Mother and Father, beginning on August 8,
2018, the Wednesday before the referral incident (the reported
rape). On Friday, August 10, 2018, at 3:22 p.m., Father texted
Mother: “I missed your call[.] What’s up? I’ve asked you
multiple times to please not curse at me in front of M[.S.] . . .”
Mother authenticated these text messages, and the juvenile court
admitted them into evidence.
22
The next page of text messages Father’s counsel showed
Mother did not show a date indicating when the text messages
were sent or received, but Father’s counsel argued the messages
were a continuation of the conversation that began at 3:22 p.m.
on August 10, 2018 (as set forth above). Father asserts these text
messages, which we quote below, demonstrate L.G. and M.S.
spent the night with Mother on August 10, 2018, and Father
picked them up at 5:00 a.m. on August 11, 2018, the day he took
them to Disneyland. Thus, he argues L.G. was lying when she
stated/testified that she and M.S. spent the night at Father’s
home the night before the reported rape.
Father texted Mother: “You telling me ‘Fu** [sic] you keep
you [sic] days’ isn’t cool to say to me in front of M[.S.]” Mother
responded with a text, stating: “Stop texting me . . . . . [sic] Pick
up M[.S.] at 5 am tomorrow at 5 a.m. on Monday tomorrow [sic]
at 5 a.m. on Monday morning tomorrow [sic] and 5 a.m. on
Monday morning.” Father then stated: “I just called you to
clarify the schedule because me picking up M[.S.] at 5am seems
like she’s very tired.” Mother responded: “Please stop texting
me[.] [I]t’s my day with M[.S.] and I want to spend my time with
her[,] not waste my time talking to you. . . . (Ellipses in original.)
Father replied: “So if I’m bothering you on your day with M[.S.]
by communicating with you about her schedule, please do the
same on my days with her. Thank you on the agreement.” The
next text message in the series showed a date of August 11, 2018,
and a time of 3:21 p.m. The message was from Father to Mother,
stating: “Would you like me to drop off the girls at your mom[’]s
house?” Then, at 6:32 p.m. on August 11, 2018, Father texted
Mother pictures of M.S. and L.G. at Disneyland. Based on
23
Mother’s testimony regarding these text messages, the juvenile
court admitted them into evidence.
During examination by her own counsel, Mother testified
Father never picked up M.S. from her at 5:00 a.m. on a weekend
day; he only picked up M.S. at 5:00 a.m. on weekdays when she
worked. She stated Father picked up M.S. and L.G. at night on
August 10, 2018, and the girls spent the night with him on
August 10, 2018 and went to Disneyland with him on August 11,
2018.
During examination by counsel for L.G. and M.S., Mother
stated she did not remember what she meant when she texted
Father: “Pick up M[.S.] at 5 am tomorrow at 5 a.m. on Monday
tomorrow [sic] at 5 a.m. on Monday morning tomorrow [sic] and 5
a.m. on Monday morning.” Her first interpretation was that she
was telling Father to pick up M.S. at 5:00 a.m. on Monday (not
Saturday, August 11, 2018). But then she stated she could not
remember.
3. Vanessa L.
On February 4, 2020, Father called his friend, Vanessa L.,
as a witness. She stated she and Father were together at a
friend’s home on the night of August 10, 2018. She testified she
had a time-stamped video reflecting she and Father were
together “[p]ast 11:00” p.m. on that night. Father’s counsel did
not present a video during (or at anytime after) the adjudication
hearing.
During cross-examination by DCFS’s counsel, Vanessa
testified she arrived at the friend’s house around 9:30 p.m., and
Father arrived at the friend’s house sometime thereafter.
According to Vanessa, Father left the friend’s house sometime
after 11:00 p.m. on August 10, 2018.
24
4. Evelyn S.
On February 4, 2020, Father called his sister, Evelyn S. as
a witness. She testified she made a phone call to Father between
10:00 and 11:00 p.m. on August 10, 2018. He told her he was at
his friend Vanessa’s house. She asked Father during the call:
“Why are you out so late? Aren’t you going to take the girls to
Disneyland the next day?” Father responded he was “just
hanging out with friends,” and he “was going to go home later
on.” According to Evelyn, Father explained during the call that
he was originally supposed to pick up M.S. and L.G. from Mother
at 8:00 a.m. on August 11, 2018, but he and Mother “had
switched it to 5:00 a.m.”
5. Jose S.
On February 4, 2020, Father called M.S.’s paternal
grandfather, Jose S., as a witness. He testified with the
assistance of a Spanish language interpreter. He stated during
direct examination that on the morning of August 11, 2018—the
date of the reported rape—he woke at 6:00 a.m., as he always did
on Saturday mornings. As he walked to the bathroom, he noticed
the door to Father’s bedroom was open, as it usually was. When
he exited the bathroom, he looked into Father’s bedroom and
observed Father lying on the floor with M.S.; L.G. was lying in
the bed. No one was crying, and he had not heard anyone crying
that morning. No one in Father’s bedroom was asleep. The
paternal grandfather recalled that when he looked into Father’s
bedroom that morning, he said something to M.S. in Spanish, as
he was trying to teach her to speak Spanish.
The paternal grandfather also testified during direct
examination that Mother was not “allowed to come up” to
Father’s apartment because she “had bad communication with
25
[Father] all the time.” He further testified that he had observed
Mother yelling at Father “in a rage” in front of L.G. “[m]any
times.”
Also during direct examination, the paternal grandfather
stated the social worker who interviewed him in preparation of
the Jurisdiction/Disposition Report, interviewed him in English
and did not review his statement with him. On cross-
examination by Mother’s counsel, the paternal grandfather
reiterated he saw Father, L.G., and M.S. in Father’s bedroom on
the morning of August 11, 2018, even though the
Jurisdiction/Disposition Report indicates he saw the trio in
Father’s bedroom at night.
C. Jurisdictional Findings
On February 4, 2019, the second day of the adjudication
hearing, after the close of evidence, the juvenile court heard oral
argument on jurisdiction. Counsel for L.G. and M.S. urged the
court to sustain allegations b-1, d-1, and j-1 regarding Father’s
sexual abuse of L.G. and the resulting risk of harm to M.S.,
arguing:
“I think this comes down to an evaluation of credibility. On
the one hand we have L[.G.] giving vivid, consistent descriptions
of a rape and molestation. They were consistent to her
statements to the social worker, her essay, her forensic interview.
We all saw her in-camera testimony.
“On the other hand, we have testimony from Father’s
friend, Father’s sister, Father’s father with oddly specific
recollections of a date that occurred 17 months ago. The text
messages, which were admitted into evidence, . . . I will point out
that all of the text communications describing a 5:00 a.m. pick up
or drop off of M[.S.] occurred on a weekday, save for Father’s
26
[exhibit] 15 [the undated page of text messages referenced above],
in which we have garbled run-on sentences from Mother, [that] to
me, read like continuation of an ongoing argument.
“It’s clear that they [Mother and Father] had a fairly good
relationship, actually, based on the tenor of these text
message[s]. It’s notable that the parents have an informal
parenting agreement. I think we have all seen, if their
relationship was so contentious, that it would cause L[.G.] to
manufacture a rape and molestation allegation to vindicate her
mother, there would have been a paternity order involved.
“I think L[.G.]’s in-camera testimony was very descriptive
15
and should provide the basis for the allegation[s].”
16
Father’s counsel argued next. His argument was lengthy.
He did not assert there was a potential or an actual conflict of
interest in counsel for L.S. and M.S. representing both children—
one of his contentions now on appeal—and he had not yet made
15
We do not address the parties’ arguments regarding
allegation b-2 regarding Father’s alcohol use because the juvenile
court dismissed that allegation at the conclusion of the
adjudication hearing, and the allegation is not at issue on appeal.
16
Father’s counsel requested a continuance of the
adjudication hearing, so he could prepare for argument, stating:
“I wanted to play a few of the parts of the taped video recording
[from L.G.’s forensic interview], and I wanted to have this
prepared to show the court, and I don’t. And I was hoping to
have an opportunity to go through all the testimony and do the
compare and contrast and represent my client effectively.” The
juvenile court denied Father’s request, stating it had watched the
video recording, reviewed the documentary evidence, and heard
the testimony. Father does not challenge the ruling on appeal.
27
such an assertion up to this point in the dependency proceedings
below. At the beginning of his argument, Father’s counsel noted
L.G. is “a young girl who doesn’t have a father, who sees her
sister who has a very active father.” Counsel also described L.G.
as “a troubled girl,” who may be “jealous of her sister.” Counsel
described L.G.’s “story” as “ridiculous,” stating the incidents of
molestation sounded like something that would occur between
high school or junior high school kids. He argued at length that
L.G.’s various accounts of the sexual abuse—to the police officers
and social worker, the forensic interviewer, and during her trial
testimony—were inconsistent, asserting, “[t]here’s three separate
stories about what happened.” Next, Father’s counsel argued the
evidence Father presented (the text messages and witness
testimony from his friend, sister, and father) demonstrated L.G.
and M.S. did not spend the night at Father’s home on August 10,
2018, so L.G.’s “story” about a rape at his home in the early
morning on August 11, 2018, “doesn’t make sense.” He concluded
his argument by stating: “It didn’t happen. This man [Father]
loves M[.S.] to death. He has a fantastic relationship with her,
and the worst thing that can happen for M[.S.] is for that
relationship to be impaired by a lie. And the court should protect
M[.S.]”
Mother’s counsel urged the juvenile court to sustain the
sexual abuse allegations against Father, stating Mother “fully
believes her daughter [L.G.]” Mother’s counsel highlighted M.S.’s
statement that she helped L.G. wipe something off L.G.’s back as
evidence corroborating L.G.’s account of the rape. Mother’s
counsel also asserted Father’s argument—that a rape could not
have happened the morning of August 11, 2018 because L.G. and
M.S. did not spend the night at Father’s home on August 10,
28
2018—fails because (1) M.S.’s paternal grandfather told the social
worker he saw the girls in Father’s room “on the night in
question,” as set forth in the Jurisdiction/Disposition Report, and
(2) even if the girls did not sleep at Father’s home on August 10,
2018, the rape could have happened the morning of August 11,
2018, based on the paternal grandfather’s trial testimony that he
saw Father, L.G., and M.S. lying down in Father’s bedroom in the
early morning on August 11, 2018.
DCFS’s counsel joined in the arguments of counsel for L.G.
and M.S., and argued L.G. was “consistent in her statements,”
and L.G.’s testimony was “more credible than the contrary
statements.” In addressing the risk of harm to M.S., DCFS’s
counsel noted (1) some of the incidents of sexual abuse occurred
while M.S. was present in the same room, and (2) Father “always
treated [L.G.] like a daughter,” according to M.S.’s paternal
grandfather.
The juvenile court dismissed allegation b-2 regarding
Father’s alcohol use and sustained allegations b-1, d-1, and j-1 as
follows: “On numerous prior occasions, . . . [Father] sexually
abused the child L[.G.], between the ages of ten through fourteen.
On a prior occasion [Father] raped the child L[.G.], while the
child M[.S.] was in the same bed. On prior occasions, [Father]
penetrated the child’s anus with [his] penis, resulting in the child
feeling pain. On prior occasions, [Father] forced the child to slap
[him]. On prior occasions, [Father] pulled the child’s hair. On
prior occasions, [Father] ejaculated on the child’s legs. On prior
occasions, [Father] rubbed [his] penis against the child. [Father]
forced the child to sit on [his] penis while applying pressure on
the child’s buttocks. On prior occasions, [Father] wrestled with
the child and pressed [his] erect penis against the child’s body.
29
On prior occasions, [Father] pressed against the child’s buttocks
with [his] penis, rubbed [his] penis against the child’s vagina and
grabbed the child’s buttocks with [his] hands. On a prior
occasion, [Father] forcefully removed the child’s clothing,
masturbated in the presence of the child and placed [his] erect
penis on the child’s legs. [Father] threatened to kill himself if the
child disclosed the sexual abuse. Such sexual abuse of the child
L[.G.] by [Father] endangers the child’s physical health, safety
and well-being and places child and the child’s sibling M[.S.] at
risk of serious physical harm, damage, danger and sexual abuse.”
In sustaining the allegations, the juvenile court
commented: “I think L[.G.]’s statements are credible. I found her
testimony credible in chambers. She testified with an affect that
demonstrates to the court that she was telling the truth about
the sexual assault, about the sexual molestation. And I believe
her. I found her credible. And her statements overall to law
enforcement, to the social worker, to the court[,] during the
forensic interview, all had themes and strands that were entirely
consistent. [¶] Now, it’s certainly true that there were some
discrepancies, but I don’t think that takes away from her
credibility, after the court had the opportunity to view her and
observe her while she testified.”
Addressing the risk of harm to M[.S.] the juvenile court
stated: “L[.G.] testified that the molestation began when she was
nine, and she was in fifth grade. She made a point that it began
to escalate when she started to develop breasts, which means
that she was prepubescent. M[.S.] is prepubescent. Also
[Father]’s father testified that [Father] always treated L[.G.] like
a daughter. Thereby, putting M[.S.] at risk because M[.S.] is
[Father]’s biological daughter. [¶] Also, the court finds true that
30
some of the sexual abuse, including the most recent episode or
incident that L[.G.] described, occurred in the presence of M[.S.]
as well. Thereby placing her at risk as well.”
The juvenile court continued the matter to February 13,
2020 for disposition.
VIII. Post-Adjudication Motions and Report
On February 11, 2020, a week after the adjudication
hearing and two days before the disposition hearing, Father filed
a section 388 petition, requesting the juvenile court “rescind” its
jurisdictional findings. In his memorandum of points and
authorities supporting the petition, Father asserted new
“evidence now proves Father’s factual innocence” and
“demonstrates unequivocally that [Father] could not have
sexually abused minor L[.G.], because L[.G.] and M[.S.] did not
sleep at Father’s residence on the relevant date of August 10 to
August 11, 2018.” Father attached the new evidence—his cell
phone bill for the period of July 15, 2018 through August 14,
2018—to his declaration in support of the petition. According to
Father’s declaration, he called Mother’s cell phone on August 11,
2018 at 4:43 a.m., and again at 5:00 a.m. “to advise that [he] was
outside waiting for the girls,” and Mother returned his call at
5:07 a.m. He pointed to the page of his cell phone bill reflecting
these calls. Father also stated in his declaration that the call his
sister testified she made to him on the night of August 10, 2018 is
reflected on his cell phone bill as an 11:16 p.m. call from “Blocked
NBR – incoming,” because his sister called him from her son’s
phone “which was issued to him by the County of Los Angeles
which comes up as a blocked number when placing a call.”
On February 13, 2020, the day of the disposition hearing,
Father filed a “Motion in Limine for Disqualification of Minors’
31
Counsel,” pursuant to California Rules of Court, rule 5.660,
which sets forth “[c]onflict of interest guidelines for attorneys
representing siblings” in dependency proceedings. (Cal. Rules of
Court, rule 5.660(c).) In the motion, Father stated: “In this
matter, there is reason to believe that [counsel for L.G. and M.S.]
has an existing and continuing conflict in her representation of
minor M[.S.] because of her representation of minor L[.G.] On
February 7, 2020, Father’s counsel sent minors’ counsel a letter
setting forth the basis for the conflict and requesting that minors’
counsel recuse herself. . . . The conflict is especially germane to
the upcoming disposition hearing in that minors’ counsel
indicated that [she] will be requesting that the case terminate
with Mother being given full legal and physical custody. Due to
the distinct and persuasive evidence bearing significantly on the
credibility of L[.G.], counsel cannot at the same time objectively
evaluate L[.G.]’s credibility and advocate against M[.S.]’s
relationship with her father. In addition, due to the new
evidence presented to the Court in Father’s . . . § 388 petition,
this information is also new to M[.S.]’s counsel, for which M[.S.]
should also be filing a . . . § 388 petition, but for it would be a
conflict to the representation of L[.G.] Conflict is inescapable and
[m]inors’ counsel must be recused.” Father attached to this
motion the February 7, 2020 letter his counsel sent to counsel for
L.G. and M.S. The letter attached Father’s cell phone bill for the
period of July 15, 2018 through August 14, 2018.
On February 13, 2020, the day of the disposition hearing,
DCFS filed a Last Minute Information for the Court,
recommending L.G. and M.S. “remain in the home of [Mother]
and that jurisdiction be terminated for these children” and that
Father “be given monitored visitation with the child M[.S.] and
32
no visitation with the child L[.G.]” DCFS also reported in the
Last Information for the Court that M.S. spontaneously told the
social worker during a home visit on January 14, 2020 that she
“had a funny story about her dad.” M.S. stated that on an
17
occasion when she was four years old, Father was wearing
underwear with a hole in the right upper thigh. He pulled the
underwear off and put on another pair, which also had a hole.
M.S. indicated she saw Father’s buttocks, but not his penis, on
that occasion. The social worker asked M.S. if she had ever seen
Father’s penis. M.S. stated she took a shower with Father when
she was four years old, and she saw his penis then. The social
worker “believe[d] that M[.S.] might be making small disclosures
to test adult reactions.” Mother agreed to address any additional
such disclosures with the social worker and M.S.’s therapist.
IX. Disposition
At the outset of the February 13, 2020 disposition hearing,
the juvenile court stated it was denying Father’s section 388
petition without a hearing, explaining: “The court has already
made credibility findings as to the minor L[.G.]’s statements.
And the documents proffered in support of the 388 [petition] are
insufficient to warrant a hearing on the 388 [petition].”
Next, the juvenile court addressed Father’s motion to
disqualify counsel for L.G. and M.S. The court asked the
children’s counsel: “Do you believe there is a conflict of interest
between your clients that prevents you from adequately
representing both of your clients?” The children’s counsel
responded negatively, and the court denied the motion. Father’s
17
M.S. was nearly six years old at the time of this home
visit.
33
counsel did not make any arguments in support of his motion or
ask to do so.
The juvenile court declared L.G. and M.S. dependents of
the court, removed M.S. from Father, ordered both children to
remain in Mother’s home, and terminated dependency
jurisdiction over L.G. As to M.S., the court stated: “I do
understand that M[.S.] has a bond with [Father], and I don’t
think it would be to her benefit to close the case today.” Counsel
for L.G. and M.S. agreed with the court’s decision to maintain
jurisdiction over M.S. Father’s counsel requested the court order
conjoint counseling for Father and M.S., explaining he had
discussed the matter with counsel for L.G. and M.S., who
expressed no objection. The court ordered conjoint counseling for
Father and M.S., if recommended by M.S.’s therapist. The court
also ordered monitored visitation between Father and M.S.
Finally, the court ordered Father and Mother to complete case
plans comprised of case-related services.
Father appealed, challenging the jurisdictional findings
and the disposition order regarding M.S. Counsel for M.S.
(appointed by this court), filed a respondent’s brief on appeal.
DCFS filed a letter, stating it joined in the arguments made by
M.S.’s counsel in the brief.
DISCUSSION
I. Exclusion of Evidence of L.G.’s Medical Records and
Medical Condition
Father contends the juvenile court erred (1) in granting
L.G.’s motion to quash the subpoenas Father served on two of her
treating physicians at the Medical Hub Clinic on the ground the
medical records Father sought were protected from disclosure by
the physician-patient privilege; and (2) in excluding, under
34
Evidence Code section 352, evidence Father sought to introduce
at the adjudication hearing that L.G. tested positive for
Chlamydia. We begin with the latter contention.
Under Evidence Code section 352, the “court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” “ ‘We will not overturn or disturb a trial
court’s exercise of its discretion under section 352 in the absence
of manifest abuse, upon a finding that its decision was palpably
arbitrary, capricious and patently absurd.’ ” (Butler v. LeBouef
(2016) 248 Cal.App.4th 198, 207.)
Evidence that L.G. tested positive for Chlamydia in October
2019 is not relevant to the issue of whether Father raped her
more than a year before in August 2018. Father was seeking to
use this evidence to challenge L.G.’s credibility at trial based on
his speculation (1) that L.G. knew she had Chlamydia in August
2019 when she wrote her school essay; and (2) that L.G.
concocted a plan to wrongfully accuse Father of rape so she could
blame him for giving her Chlamydia and hide from Mother that
she was sexually active. Any minimal probative value of this
evidence on L.G.’s credibility was substantially outweighed by
the probability that admission of the evidence would necessitate
undue consumption of time and create substantial danger of
undue prejudice and of confusing the issues. Although this case
involves a court trial, and not a jury trial, these considerations
still come into play. The juvenile court’s decision to protect L.G.
from attacks on her credibility with minimally probative and
highly personal information was not arbitrary. Father was not
35
prevented from otherwise challenging the credibility of L.G.’s
statements/testimony. In the absence of manifest abuse, we will
not disturb the juvenile court’s decision.
Because we conclude the juvenile court did not err in
excluding under Evidence Code section 352 all evidence of L.G.
testing positive for Chlamydia, we need not address Father’s
contention the juvenile court erred in granting L.G.’s motion to
quash the subpoena for L.G.’s medical records. Both below and
on appeal, Father made clear the medical records he sought by
the subpoenas were those demonstrating L.G. tested positive for
Chlamydia. Thus, the medical records were covered by the
juvenile court’s ruling excluding under Evidence Code section 352
all evidence of L.G. testing positive for Chlamydia.
II. Denial of Father’s Motion to Disqualify the
Children’s Counsel
Father contends the juvenile court erred in denying his
motion to disqualify the children’s counsel, made after the
adjudication hearing on grounds counsel had a conflict of interest
in representing both L.G. and M.S.
California Rules of Court, rule 5.660(c) sets forth “[c]onflict
of interest guidelines for attorneys representing siblings.” As set
forth in the rule, a juvenile court “may appoint a single attorney
to represent a group of siblings involved in the same dependency
proceeding.” (Rule 5.660(c)(1)(A).) “An attorney representing a
group of siblings has an ongoing duty to evaluate the interests of
each sibling and assess whether there is an actual conflict of
interest.” (Rule 5.660(c)(2)(A).) “If an attorney believes that an
actual conflict of interest existed at appointment or developed
during representation, the attorney must take any action
necessary to ensure that the siblings’ interests are not
36
prejudiced,” such as notifying the juvenile court of the conflict or
requesting to withdraw from representing some or all the
siblings. (Rule 5.660(c)(2)(D).) “If the court determines that an
actual conflict of interest exists, the court must relieve an
attorney from representation of some or all of the siblings.” (Rule
5.660(c)(2)(E).) The fact that “siblings have different parents,” by
itself, does “not necessarily demonstrate an actual conflict of
interest”; nor does the fact that “[t]here is a purely theoretical or
abstract conflict of interest among the siblings.” (Rule
5.660(c)(2)(B)(ii) & (iii).) “[U]nder rule 5.660(c), a conflict
becomes ‘actual’ when an attorney’s duties of loyalty,
confidentiality, and zealous advocacy require the attorney to take
or to refrain from taking some action to serve the ‘best interests’
of one minor client, but the attorney is unable to do so without
violating a duty owed by the attorney to another client; or when
the attorney is unable independently to evaluate the best
interests of each minor client because of the minors’ conflicting
interests.” (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1267,
1272 (Zamer G.).)
“ ‘Generally, a trial court’s decision on a disqualification
motion is reviewed for abuse of discretion. [Citations.] If the
trial court resolved disputed factual issues, the reviewing court
should not substitute its judgment for the trial court’s express or
implied findings supported by substantial evidence. [Citations.]
When substantial evidence supports the trial court’s factual
findings, the appellate court reviews the conclusions based on
those findings for abuse of discretion. [Citation.] However, the
trial court’s discretion is limited by the applicable legal
principles. [Citation.] Thus, where there are no material
disputed factual issues, the appellate court reviews the trial
37
court’s determination as a question of law. [Citation.] In any
event, a disqualification motion involves concerns that justify
careful review of the trial court’s exercise of discretion.’ ” (Zamer
G., supra, 153 Cal.App.4th at pp. 1262-1263.) “On appeal, we
must indulge ‘[a]ll intendments and presumptions . . . to support
[the lower court’s order] on matters as to which the record is
silent.’ ” (Id. at p. 1271.) A juvenile court’s error in not relieving
counsel from representing multiple siblings, where there is an
actual conflict in the representation, is subject to harmless error
analysis, and we reverse only if it is reasonably probable the
result would have been more favorable to appellant but for the
error. (In re Celine R. (2003) 31 Cal.4th 45, 50, 59-60.)
Father asserts on appeal: “Evidence developed at trial
which significantly undermined L[.G.]’s credibility. If L[.G.] was
lying, and no sexual abuse occurred, then it was against M[.S.]’s
best interest to have her relationship with [Father] undermined
by continued detention from him, only limited monitored
visitation, and the potential that jurisdiction could eventually be
terminated awarding Mother sole legal and physical custody and
[Father] only limited contact with her.”
Father ignores M.S.’s statements to Mother and her
therapist that she remembered wiping something off L.G.’s back
as L.G. cried, while Father was present in pajama shorts. M.S.’s
statements corroborate L.G.’s account and support the children’s
counsel’s decision to advocate for dependency court jurisdiction
over M.S. and removal from Father. Other statements M.S.
made to Mother and the social worker—that Father had forced
her to take a little purple pill to go to sleep and that he had taken
off his underwear in front of her and showered with her—were
38
additional cause for concern about her safety with Father, in
light of her corroboration of some of L.G.’s statements.
The children’s counsel expressed at the disposition hearing
that she agreed with the juvenile court’s decision to keep the case
open to allow M.S. to reunify with Father, over DCFS’s
recommendation that the juvenile court terminate dependency
jurisdiction with a family law order granting Mother sole custody
and Father only monitored visitation. In fact, Father based his
motion to disqualify the children’s counsel in part on his belief
that the children’s counsel would join in DCFS’s recommendation
at disposition. Moreover, when Father requested conjoint
counseling with M.S., the children’s counsel did not object.
Taking these positions demonstrates counsel’s ability to evaluate
M.S.’s best interests independently from L.G.’s best interests.
Father argues that in order for the children’s counsel to
zealously advocate for M.S., counsel needed to attack L.G.’s
credibility at trial regarding the molestation and rape allegations
by (1) not objecting to the admission of evidence of L.G.’s positive
test results for Chlamydia; (2) exploring evidence Father
presented at trial to show L.G. and M.S. did not spend the night
at his home on August 10, 2018 (e.g., the text messages between
Mother and Father); and (3) challenging L.G. on a lengthy list
Father put together of purported inconsistencies between L.G.’s
statements to the police officers and the social worker, her
statements during her forensic interview, and her trial
18
testimony. Moreover, Father argues zealous advocacy of M.S.
18
For example, Father points out, among other things: (1)
L.G. did not mention the August 10, 2018 wrestling incident in
her statements prior to her forensic interview; (2) in the forensic
interview, L.G. stated the August 10, 2018 wrestling incident
39
required the children’s counsel to join in or, at a minimum,
investigate his section 388 petition, seeking to “rescind” the
jurisdictional findings based on new evidence—his cell phone
bills showing incoming and outgoing calls on August 10-11, 2018.
We already discussed above the reasons the trial court
properly excluded evidence of L.G.’s positive test results for
Chlamydia. M.S.’s best interests would not have been furthered
by attacking L.G.’s credibility with this minimally probative
information.
Father ignores the fact that, after considering all the
evidence presented at trial, the juvenile court made a finding that
L.G. was credible in her statements/testimony that Father
molested and raped her. It is not the province of this court to
reevaluate a witness’s credibility. Moreover, Father does not
suggest what M.S.’s counsel could have or should have done,
above and beyond what Father’s counsel did, to further explore
evidence he presented or to point out purported inconsistencies in
L.G.’s statements/testimony.
Regarding Father’s section 388 petition, the juvenile court
reviewed Father’s new evidence and denied the petition without a
hearing, based on its finding L.G. was credible. It is not
reasonably probable the result would have been more favorable to
Father if counsel for M.S. joined in the petition or conducted
additional investigation regarding Father’s new evidence.
happened on the couch, but at trial she testified the incident
happened on Father’s bed; and (3) in her forensic interview and
at trial, L.G. discussed portions of the events on August 11, 2018
out of chronological order, recalling later in her
statement/testimony something that came before in the
chronology.
40
Under either the abuse of discretion or de novo standard of
19
review, the juvenile court did not err in denying Father’s motion
to disqualify counsel for L.G. and M.S. based on an actual conflict
of interest. Counsel demonstrated she was able to independently
evaluate and zealously advocate for M.S.’s best interests. (Cf.
Zamer G., supra, 153 Cal.App.4th at p. 1272 [juvenile court did
not abuse its discretion in its pre-adjudication decision to
disqualify counsel, where substantial evidence supported juvenile
court’s finding of an actual conflict of interest in counsel’s
representation of four siblings/half siblings, where counsel “would
have to dispute the accuracy or reliability” of statements of abuse
made by two siblings in order to “advocate in favor of
reunification” between their abuser and their two half siblings,
and counsel “could not professionally and independently evaluate
20
each child’s best interests when faced with this dilemma”].)
19
Father asserts that in ruling on his motion, the juvenile
court did not make factual findings on material disputed issues,
so we should review the matter de novo. We need not reach the
issue because we would not disturb the juvenile court’s decision
under either standard of review, based on the reasons set forth
above.
20
Father’s reliance on Zamer G. in support of his
contention the juvenile court erred in denying his motion to
disqualify the children’s counsel is misplaced because Zamer G. is
distinguishable on its facts. The juvenile court in Zamer G.
disqualified counsel pre-adjudication. (Zamer G., supra, 153
Cal.App.4th at p. 1272.) Here, Father made his motion to
disqualify the children’s counsel post-adjudication, after the
juvenile court had already (1) made a finding that L.G.’s
statements regarding Father’s sexual abuse were credible and (2)
determined the new evidence Father submitted with his section
41
And, even assuming counsel had an actual conflict, Father cannot
show it is reasonably probable the outcome in this case would
have been more favorable to him if the juvenile court had
disqualified counsel from representing M.S. and appointed
separate counsel.
DISPOSITION
The jurisdictional findings and disposition order regarding
M.S. are affirmed as to Father.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
388 petition did not alter the court’s finding as to L.G.’s
credibility.
42