Thursday, July 18, 2019
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Court of Appeal:
Testimony of Young Children Properly Barred At Termination-of-Parental-Rights Hearing
By a MetNews Staff Writer
A Juvenile Court referee who terminated parental rights to the five youngest of a couple’s nine children did not violate the mother’s right to due process by denying her motion to have four of the minors testify, Div. Two of this district’s Court of Appeal held yesterday.
The unpublished opinion affirms an order by Los Angeles Superior Court Referee Steff R. Padilla. Acting Presiding Justice Judith Ashmann-Gerst quoted Padilla as saying:
“Well, I’m going to make my ruling and here it goes. I’m not even going to get to the issue of unavailability at first glance.
“These children are ten, eight, seven, and six. Their consent is not relevant. They are all under the age of twelve.”
Not Helpful
Padilla found that their testimony would “not assist the court in making the determination whether or not it’s in their best interest and/or whether or not it would be appropriate to terminate the parental rights.” She observed that the four older children, still in the parents’ custody, “are very upset because they believe their siblings…don’t want to be adopted” by their foster parents but remarked:
“Nothing they have said in any statement in any report indicates that, and it’s not relevant. They’re under the age of 12. That’s my determination.”
The jurist added:
“…I look at the trauma that would be imposed upon these children to have to testify either in chambers or out of chambers…balanced by the information that the court could possibly glean from these children.”
She said that concern over “undue trauma” preponderates.
C.A. Opinion
Ashmann-Gerst wrote:
“Here, mother’s due process rights were not violated when the juvenile court denied her request that the younger siblings testify at the…hearing.”
She noted that Padilla considered reports from the Los Angeles County Department of Children and Family Services (“DCFS”) and heard testimony from the biological mother, three of the older daughters, and the foster mother. Ashmann-Gerst said:
“[A]ppellants were given the opportunity to cross-examine and challenge all of this evidence. Under these circumstances, there was no need for the younger children to testify.”
Legal Error Alleged
The mother argued that Padilla misapplied the law. Although the children are under the age of 12, she maintained, it is still necessary to ascertain their wishes.
Ashmann-Gerst responded:
“We agree with mother that the younger children’s wishes were relevant. But, the juvenile court did not err in not requiring that they testify. The juvenile court was able to ascertain their wishes through evidence other than their testimony, such as statements that they made that were recorded in the DCFS reports, and through the testimony of key witnesses, including [the foster mother]. Based on that evidence, it does not appear that the children would have testified that they did not want to be adopted.”
Sibling Bond
She also rejected the mother’s contention that the testimony was necessary to gauge the strength sibling ties from the standpoint of the younger children. The author of the opinion said:
“But that could be done here with evidence other than live testimony from the younger children. The social worker’s reports were replete with statements by the children regarding their feelings for the four older siblings. And their feelings were confirmed by their trial counsel, who represented that the children wanted to be adopted.”
The case is In re Santiago R., B292308.
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