J.H. V. SUPERIOR COURT- DUE PROCESS RIGHTS AND RIGHT TO CONFRONTATION IN THE DEPENDENCY SETTING
Parents do not have a statutory right to cross examine the social worker who authored the status review report or a .26 report. The parents does have a right to confront and cross examine witnesses but this right does not allow the same accessibility to witnesses as does in the criminal court under the 6th Amendment Confrontation clause. The father at the review hearing, the .21 (f) hearing, set the matter for contest after the department had made the recommendation for TFR and setting the matter for a .26 hearing. On the day of the hearing, the worker who wrote the report was unavailable but the supervisor was available for testimony. The father submitted an extraordinary writ challenging the trial court’s decision to terminate services and set the .26 hearing, citing Sanchez in that he was deprived of his due process right to confrontation. The court of appeal rejected his writ citing that due to the nature of a dependency hearing, the father is indeed entitle to confrontation but not to the same extent of criminal court and therefore reliance on the statements of the supervisor did not violate his due process rights.
Father’s children came to the attention of the department for failure to protect. His children were abused by a relative. The court ordered that the father participate in anger management classes and that he comply with therapy. The father was to also follow a visitation schedule. At the .21 (e) hearing the department originally submitted a req for termination for services and the setting of a .26 hearing but the father had complied enough where that recommendation was eventually removed. At the next hearing .21 (f) however, the father had lapsed in many visits and not complied substantially with his court ordered case plan. The department submitted a recommendation to terminate services and set the .26.
Nine days before the review hearing, DSS informed J.H. that the author of the 12-month report, Karen Talbert, would not be available to testify because she no longer worked with DSS. Her former supervisor, Lori Spire, would be available instead. At a pretrial proceeding the day before the hearing, J.H.’s attorney said she had not subpoenaed Talbert. She nevertheless requested Talbert's presence in court.
At the hearing, the father was openly hostile. He opined that he did not learn anything from the department or his case plan. When the supervisor testified, she stated she has written part of the report, she had spoken with the father’s therapists, reviewed visitation logs, and discussed the case with the primary author of the report. She personally observed two of his visits. Two therapists opined that he did not seem to have DV issues and that his visits went well enough to warrant continuation of services.
The trial court found that the social worker’s evidence and the father’s lack of progress in redressing his issues was enough to terminate services and set the .26 hearing. The father filed a writ and opined that the trial court violated his due process rights when it relied on the supervisor’s report without permitting the to cross- examine the original author of the report.
Parents in a dependency proceeding has a due process right to confront and cross-examine witnesses. In re Josiah S. (2002) 102 Cal.App.4th 403, 412, 125 Cal.Rptr.2d 413. However, parents in a dependency case do not have the full right to “full-fledged cross-examination” afforded by the Confrontation clause. Because due process is a flexible concept, due process in the dependency realm must weigh “any possible hardship to the parent [against] the state's legitimate interest in providing an expedited proceeding” to satisfy the minor’s need for permanency and stability. The standard of review for this issue would be abuse of discretion in allowing the supervisor to testify in place of the writer.
Under Welf. & Inst. Code § 281, the juvenile court may “receive and consider social service reports in determining “any matter involving the custody, status, or welfare of a minor”. At the .21 (f) review hearing, the court shall review and consider those reports made admissible regardless of whether the authors are available for cross-examination.
The right to cross-examination based upon statute and court rule applies only to the jurisdictional hearing.
Counsel need remember that juvenile dependency is a closed universe. What applies in criminal and civil court do not necessarily translate to dependency. In dependency litigation, due process focuses on the right to notice and the right to be heard. Due process not perfect process. The father had been noticed that the social worker would not be available for the hearing and that the social worker’s supervisor would testify instead. Counsel had opportunity to challenge the report through subpoenas of lay witnesses and expert witnesses. Additionally, his counsel had not subpoenaed the social worker which the court weighed against a finding a due process violation.
In regards to father’s assertion regarding Sanchez the appellate court cited that Sanchez applies when any expert states to the jury (1) case-specific (2) out-of-court statements, and (3) treats the content of those statements as true and accurate as a basis for their expert opinion, then the court may treat such statements as hearsay unless a hearsay exception applies. Welfare and Institutions does provide an exception invalidating the Sanchez argument, Welf & I C § 358, subd. (b)(1):
(b)(1) Before determining the appropriate disposition, the court shall receive in evidence the social study of the child made by the social worker, any study or evaluation made by a child advocate appointed by the court, and other relevant and material evidence as may be offered, including, but not limited to, the willingness of the caregiver to provide legal permanency for the child if reunification is unsuccessful. In any judgment and order of disposition, the court shall specifically state that the social study made by the social worker and the study or evaluation made by the child advocate appointed by the court, if there be any, has been read and considered by the court in arriving at its judgment and order of disposition.
Father also cites to Sanchez which holds that when an expert seeks to rely on testimonial hearsay it violates the confrontation clause unless (1) there is proof the declarant is unavailable, and (2) the [parent] had a prior opportunity for cross-examination. However, counsel needs to understand that this section does not extend to dependency.
Although parties in civil proceedings have a right to confrontation under the due process clause, the Sixth Amendment and due process confrontation rights are not coextensive [one in the same].
Simply put due process in civil proceedings and special proceedings are limited. Within dependency law the courts have found that parents contesting termination of parental rights are not similarly situated to a criminal facing detention. By definition, criminal defendants face punishment. Parents do not. In re Sade C. (1996) 13 Cal.4th 952, 991, 55 Cal.Rptr.2d 771, 920 P.2d 716.
Based on this, the appellate court denied the writ.
The SUPERIOR COURT of San Luis Obispo County, Respondent; San Luis Obispo County Department of Social Services, Real Party in Interest.
2d Juv. No. B284802 Filed 2/15/2018
Background: Father filed petition for extraordinary writ review of the order of the Superior Court, San Luis Obispo County, No. 16JD00154, Linda D. Hurst, J., terminating reunification services in dependency proceeding regarding father's two children and setting matter for permanency plan hearing.
Holdings: The Court of Appeal, Tangeman, J., held that:
1 substantial evidence supported finding that termination of reunification services was warranted, and
2 testimony of social worker's former supervisor, rather than unavailable social worker, did not violate due process.
Juvenile Dependency and