In Re Heather H.

California Court of Appeal Apr 11, 1988 No. H002230Published

Before: Agliano

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Holding. The court held that a child's testimony in a dependency hearing is inadmissible if the child is not sworn in, and that expert testimony identifying a specific perpetrator of sexual abuse is inadmissible. Because the trial court relied on this inadmissible evidence to sustain the dependency petition, the order was reversed.

Issues

Whether a child witness in a juvenile dependency hearing must be sworn in to provide admissible testimony.
Whether expert opinion testimony identifying a specific person as the perpetrator of sexual abuse is admissible.
Whether the trial court's reliance on unsworn testimony and inadmissible expert opinion requires reversal.

Disposition. reversed

Quotations verified verbatim against the opinion

“Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law.”

“In the absence of a waiver, such as a failure to object or a stipulation, unsworn testimony does not constitute "evidence" within the meaning of the Evidence Code.”

“However, opinion identifying the molestor was not admissible.”

200 Cal.App.3d 91 (1988) 246 Cal. Rptr. 38 In re HEATHER H., a Person Coming Under the Juvenile Court Law.

PEDRO SILVA, as Chief Probation Officer, etc., Plaintiff and Respondent,

HEATHER H., Defendant and Appellant.

Docket No. H002230. Court of Appeals of California, Sixth District.

April 11, 1988. [93] COUNSEL

Ann Jory, under appointment by the Court of Appeal, for Defendant and Appellant.

Leo Himmelsbach, District Attorney, and Robert J. Masterson, Deputy District Attorney, for Plaintiff and Respondent.

OPINION

AGLIANO, P.J.

"Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law." (Evid. Code, § 710.) The trial court in this case placed substantial reliance for its decision on the testimony of a four-year-old witness who neither took an oath nor made any commitment to relate the truth prior to testifying. We are compelled, accordingly, to reverse.

The juvenile court in this child dependency hearing, held pursuant to Welfare and Institutions Code section 300, subdivision (a), declared Heather H., a 14-year-old minor, a dependent child of the court. The order was based on findings that Heather had no parent or guardian exercising proper and effective parental care in that Heather's father had sexually abused Heather's four-year-old brother.

Statement of Facts

In the fall of 1985, Heather's parents, Daniel and Marsha H., were involved in a dissolution proceeding involving custody of their two children and division of community property. In October 1985 the family court made a temporary order that Heather reside with her father and that her brother reside with her mother.

After Daniel made certain statements to his mother on November 26, 1986, Mrs. H. contacted her attorney. He in turn retained Anna Kuhl, a forensic psychologist, to examine Daniel and determine whether he had been molested by his father. Dr. Kuhl met with Mrs. H. and Daniel on November 29. She subsequently met with Daniel alone several times. On December 21, 1985, she talked with him "about good touches and bad touches." In response, he told her "Dad touches my pee-pee at night." He said it happened "when I sleep with him" and that he would pretend he was asleep. He stated that it felt good but that he did not like it. She testified

In Re Heather H.

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OPINION

AGLIANO, P.J.

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