Distinguishing In re Clifton V from J.H. v. Superior Court Right to Confrontation in Child Welfare CasesRead Now
Distinguishing In re Clifton V from J.H. v. Superior Court
Right to Confrontation in Child Welfare Cases
These two cases deal with the fact that dependency cases are special hearings where the state has a unique countervailing interest; the best interest of the dependent minor.
A parent in a dependency proceeding has a due process right to confront and cross-examine witnesses. (J.H. v. Superior Court (2018) 20 Cal.App.5th 530). However, dependency parents do not enjoy the full rights to confrontation as a criminal defendant accused of a crime. The due process afforded to parents does not require “full-fledged cross-examination”. All that is required in a dependency proceeding is that the procedures comport with fundamental principles of fairness and decency. Because the receive and consider social service reports in determining `any matter involving the custody, status, or welfare of a minor. The children’s best interest, stability and permanency, are the court’s foremost concern and generally outweighed any interests such as full confrontation rights.
The case of J.H. dealt with the issue of whether a parent has the right to call the social worker who authored the report. The reports are admissible regardless of whether the authors are available for cross-examination. Welf & I C § 358, subd. (b)(1). The legislative intent established that once jurisdiction over a minor has been established, the admissibility of social workers reports is no longer conditioned on the availability of the author for cross-examination”. In J.H. the parent was noticed of the change in who would be testifying. The social worker’s supervisor would take the stand as the social worker assigned to the case had left the department. This supervisor testifying had personal knowledge of the case as they had supervised the case, reviewed CWS/CMS records, and spoken to 730 evaluators and therapists. Additionally, parent had not raised any challenges to the credibility of the witness[es] or subpoena the original social worker. All of these factors, were considered by the appellate court who opined that the lack of the prior lead to a finding that parent’s due process rights were not violated.
Additionally, parent alleged that not allowing them to call the original social worker violated Sanchez but the appellate court cites to the language of Sanchez which reads in part
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. [Citation.] Due process in a civil proceeding “is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings”.
The main issue that the court in J.H. stressed was criminal defendants and parents in a dependency proceeding are not similarly situated. Criminal defendants face punishment and imprisonment whereas parents do not. Some could argue down the line that parents face the dependency law equivalent of the death penalty in a criminal case; termination of parental rights.
Now In re Clifton V came before J.H. but it had precedential value as a similar issue came up with whether parents have due process rights to confrontation where there is issue of credibility”. In re Clifton V., 93 Cal.App.4th 1400, 1405 (Cal. Ct. App. 2001).
In this case, the court denied mother the right to call and cross examine witnesses despite evidence that there was a clear credibility contest between the mother and the grandmother, which the juvenile court resolved only on the parties’ written submissions and argument of counsel”.
The appellate court states that due process in juvenile dependency litigation focuses on the right to notice and the right to be heard. This means that parents have a right to be notice and to have a meaningful hearing with an opportunity to examine evidence and cross-examination witnesses”. However, this right to a meaningful hearing is not just empty formality. Although due process is not synonymous with full-fledged cross-examination rights in the dependency realm, if the evidence presents in such a manner where there is a risk of prejudicial evidence, then the parent may exercise their right to cross examination of a witness.
The appellate court in its opinion stated that
“we cannot say mother was not harmed by the lack of opportunity to present live testimony and to cross-examine adverse witnesses. This result would be the same even under the more lenient "reasonable probability" standard urged by DCFS. Therefore, we must reverse the order of the juvenile court and remand for a new hearing on mother's section 388 petition, with the parties afforded the opportunity to present live testimony and cross-examine adverse witnesses”.
In this case, the two declarations were in direct conflict with one another, raising the inference either mother or grandmother was lying. Unlike the other case, should one party be found to have lied in their statements, this materially affected the case and in the absence of these statements, the outcome may have been different. The other case was contending that the social worker who authored the report was unavailable, but the record indicated that there were no serious material facts in dispute. In most cases, unavailable witnesses do not usually have something unique or contrasting information that cannot be gleaned from another available witness. So when counsel is arguing their case, they still need to adhere by the rule that Confrontation Clause does not extend to dependency proceedings and prepare to not have a social worker available on the day of trial.
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