IN RE: MIGUEL O.

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Court of Appeal, Sixth District, California.

IN RE: MIGUEL O., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF FAMILY & CHILDREN'S SERVICES, Plaintiff and Respondent, v. FIDELA M., Defendant and Appellant.

IN RE: MARIANO O., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF FAMILY & CHILDREN'S SERVICES, Plaintiff and Respondent, v. FIDELA M., Defendant and Appellant.

No. H015266.

Decided: February 04, 1997

Mara Carman, By Appointment of the Sixth District Appellate Program, for Defendant/ Appellant. George W. Kennedy, District Attorney, Robert J. Masterson, Deputy District Attorney, for Plaintiff/ Respondent. Steven M. Woodside, County Counsel, Jeffrey L. Bryson, Deputy County Counsel, for Respondent Santa Clara County Department of Family & Children's Services.

Fidela M. appeals from the jurisdiction and disposition orders of the juvenile court adjudging her children Miguel O. (born April 1990) and Mariano O. (born March 1993) dependent children and removing them from her custody.   She challenges only the placement order, whereby the court refused to place the children with her half-sister.

STATEMENT OF PROCEDURE

On March 16, 1995, Miguel and Mariano were taken into protective custody after their mother Fidela M. was arrested during a drug sale.   A petition was filed under Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and (g) [no provision for support], and on March 21, 1995, the court ordered the children detained and placed in emergency foster care.   On April 27, 1995, the petition was sustained in the absence of the parents, who were both in custody.   Reunification services were ordered, with parental and relative visitation allowed.   Relative visitation was later denied and the children were moved to an out-of-county placement when the Department of Family and Children's Services (DFCS) became concerned due to the on-going criminal investigation of the extended family and fears of abduction of the children.

On October 10, 1995, mother's petition pursuant to Welfare and Institutions Code section 388 for placement of the children with her half-sister Maria Angelica B. (aunt) was denied, and paternity was established for Angel O., who was also incarcerated on a drug conviction.   Reunification plans were prepared for the parents.

In November, by stipulation of the parties, the court set aside its jurisdiction and disposition orders and set the original petitions for a new trial.1  Visitation was ordered at the discretion of DFCS.

A contested jurisdiction/disposition hearing took place on February 1 and 13, 1996.   Several witnesses testified, including the supervising social worker Vivian Sanchez, mother, mother's cousin, aunt and Detective Michael Beal, a narcotics investigator with the Hayward Police Department.   Detective Beal invoked a governmental privilege in explaining the reasons he believed the children's physical safety would be at risk if they were placed with the aunt.   His testimony was taken in camera.   The trial court upheld the privilege, and concluded the children should not be placed with the aunt.

The court sustained the amended petitions,2 made the minors dependent children of the court, removed them from parental custody, ordered placement in suitable relative or foster home (but not aunt's home) and ordered family reunification services.   A review date of August 6, 1996, was set, with the 18-month reunification period to expire in September 1996.

STATEMENT OF FACTS

On March 16, 1995, mother was arrested in Hayward while selling seven pounds of methamphetamine to an undercover police officer.   Nine days earlier, mother had sold one-quarter pound of methamphetamine to the same officer.   During this sale, she was holding a young boy, believed to be Mariano.

After the arrest, the children were found in the Mountain View home of mother's cousin, when a search warrant was executed on that residence.   At trial, the cousin insisted mother had dropped the children off to stay with him in the afternoon.   The police report noted the cousin had found the children unattended at the mother's home and had taken them with him.   The children were taken into protective custody.

Father, Angel, had been arrested in February 1995 in Los Angeles with six gallons of methamphetamine oil and finishing equipment, which would have yielded 50-90 pounds of methamphetamine with a street value of $5,100 per pound.   Father later told a social worker he had been driving aunt's car and had been set up.   He was convicted of one count of transportation, sale and distribution of a controlled substance and sentenced to five years in state prison.   After his release in October 1997, he will be deported to Mexico by the Immigration and Naturalization Service (INS).

In June 1995, mother was convicted of one count of transportation, sale, and distribution of a controlled substance and sentenced to seven years in state prison.   After her release in December 1999, she will be deported to Mexico.   Mother has lived in the United States since 1988 without documentation.   The children were born in this country and thus are United States citizens.

Mother and father requested the children be placed with aunt in Los Angeles, but the Hayward Police Department recommended against this placement because of an on-going investigation into the extended families' involvement in a high-level drug manufacturing and selling enterprise.3  Aunt visited the children, but in June these visits were suspended because of fears of abduction, and in August the children were moved out of the county into a foster home.

In November 1995, the children had a visit with mother at the jail.   Mother promised to take the children to live in Mexico.   After this visit, the foster mother reported significant regressive behavioral problems from both children, who were previously well adjusted and thriving in the Spanish-speaking foster home.4  The social worker opined that further visitation with the mother would be detrimental.

In the report prepared for the jurisdiction/disposition hearing, the social worker described the children as happy, healthy, thriving physically and emotionally, and well bonded to the foster family.   The social worker had also investigated aunt as a possible placement and reported that she was a nine-year employee of a packing company, had no criminal history and had recently moved to a more suitable two-bedroom apartment with a roommate.   However, family members including aunt were still under investigation by the Hayward Police Department, and Detective Beal recommended against placement with aunt.   The social worker also emphasized that the children had no sustained relationship with aunt and that “the underlying fact remains that these children are not in need of a placement.  [¶] The ․ current placement ․ has been positive and the children have adjusted well․   Removing them at this juncture would be severely detrimental to their emotional well-being and would cause both children to regress developmentally and emotionally.”

DISCUSSION

 Mother contends her due process right to cross-examine witnesses against her was violated by the trial court's conclusion that the police investigator's testimony was privileged.   She insists she was thus not able to refute the evidence against aunt that the children would be unsafe with her.   Detective Beal testified that he believed the children's physical safety would be at risk if they were placed with aunt, and that revealing the details or source of his information would compromise an on-going extensive police investigation.   He claimed the information was privileged under Evidence Code sections 1040 and 1041 5 .  Over the parents' objections, the trial court then heard the testimony in camera pursuant to Evidence Code section 915, subdivision (b) 6 , and concluded the evidence was privileged.7  However, the trial court also stated it would exercise independent judgment on the question of risk to the children.

Mother acknowledges that an express constitutional right of confrontation is limited to criminal prosecutions (U.S. Const. 6th Amend.;   Cal. Const., art.   I, § 15), but asserts a statutory right to confrontation in juvenile dependency hearings.  (Welf. & Inst.Code, § 311.)   DFCS maintains this general statutory right is limited by the exceptions of governmental privilege expressed in the Evidence Code.

 Regardless of the correctness of DFCS's position however, the question of due process remains.   In In re Malinda S. (1990) 51 Cal.3d 368, 383, footnote 16, 272 Cal.Rptr. 787, 795 P.2d 1244, our Supreme Court has noted a due process right to cross-examine and confront witnesses in civil proceedings.   This arises from the federal right to due process encompassed in the Fifth and Fourteenth Amendments and has been applied in child dependency cases.  (In re Mary S. (1986) 186 Cal.App.3d 414, 419-420, 230 Cal.Rptr. 726.)   But as noted recently in In re Sade C. (1996) 13 Cal.4th 952, 992, 55 Cal.Rptr.2d 771, 920 P.2d 716, parents in dependency proceedings are not entitled to full confrontation and cross-examination.   Thus, due process requires a balance.

 In Malinda S., the Supreme Court explained the factors to be balanced in deciding what process is due:  “This flexible balancing standard considers (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”  (In re Malinda S., supra, 51 Cal.3d at p. 383, 272 Cal.Rptr. 787, 795 P.2d 1244 [internal citations and quotation marks omitted].)  But the Supreme Court also reminded that in dependency cases, “the paramount concern is the child's welfare.”  (Id. at p. 384, 272 Cal.Rptr. 787, 795 P.2d 1244.)

 In this case, mother's interest in the placement of her children with relatives is important, but it does not rise to the same level of important fundamental interest as her right to contest the charges against her in the removal of the children from her custody.   She received notification of the charges against her and a full and fair hearing on the truth of the charges.  Welfare and Institutions Code section 361.3 gives relatives priority in consideration for placement, but it by no means requires placement with relatives, nor gives the parent the right to determine placement.  (See Welf. & Inst.Code, § 361.3, subds. (a), (c).)

Similarly, mother's own dignity interest was protected in her ability to know and respond to the information received against her and her ability to testify.   Although she was not allowed to cross-examine the police officer, she was aware that his information concerned aunt's involvement in family drug-dealing and concerns for the children's physical safety due to the involvement of other family members and violence against them.

As to the risk of an erroneous decision and the government's interest, both of these factors weigh heavily in favor of the procedure used.   DFCS describes the government's interest as overwhelming, in that both mother and father were arrested during separate large drug sales or possessions, various other family members were involved in drug activity, and the on-going investigation by the police involved several jurisdictions and important confidential information, while revelation of information could have seriously compromised large-scale police activity.

Most importantly, the risk of an erroneous decision seems small.   All parties acknowledge, and we emphasize, the trial court's duty to protect the children's best interests.   And the trial court here declared its concern and its independent assessment of both the information received and the placement decision.   Mother's assumption that cross-examination would have resulted in a different decision has no foundation.

This case is clearly not similar to the cases cited by mother where the parent was not allowed to question the social worker making the recommendation about the children or the children themselves in confidential settings.  (See, for example, In re Dolly D. (1995) 41 Cal.App.4th 440, 48 Cal.Rptr.2d 691;  In re Amy M. (1991) 232 Cal.App.3d 849, 283 Cal.Rptr. 788.)

 Even were we to find error in the procedure, we would find it harmless beyond a reasonable doubt.  (See In re Dolly D., supra, 41 Cal.App.4th at p. 446, 48 Cal.Rptr.2d 691.)   At this point in the process, the children had been out of the mother's custody for nearly a year, and had been in a permanent home setting for nearly seven months.   The children were thriving, and the social worker's professional opinion was that any change of placement would have been extremely disruptive, even permanently damaging to the children.   There was no evidence of the children's strong or important relationship with aunt.   And the other questions concerning extended family drug trafficking involvement and violent activity, even if the aunt herself was completely excluded, weighed against the children's safety in a relative placement.   We have no doubt the trial court would have made the same placement decision in any event.   Although the loss of control over the placement of one's children may be an unforeseen, and even unfortunate, consequence of criminal activity, the dependency statutes exist to protect children from the effects of their parents' behavior and ultimately have the children's best interests as their goal.

DISPOSITION

The jurisdiction and disposition orders appealed from are affirmed.

FOOTNOTES

1.   Apparently the parents had not been properly notified or provided representation at the earlier proceedings.

2.   The allegations found true included:  “On 3/7/95, the minor's mother sold 1/4 pound of methamphetamine to a narcotics detective while holding a two-year-old child;  ․ further, on 3/16/95, the minor's mother was arrested by the Hayward Police Department Narcotics Bureau for selling an undercover officer 7 lbs. of methamphetamines for $35,700;  ․ further, on 3/16/95, the minors were found in their home unattended by a family relative who took them home and shortly thereafter the relatives home was served a search warrant by the Hayward Narcotics Bureau and the minors placed in protective custody;  ․ further the minor's father was arrested by Los Angeles Police Department with 6 gallons of meth. oil which would have yielded 50-90 lbs. of methamphetamines worth between $25,000 to $45,000;  ․ furthe[r], the minor's mother told police that she and the minor's father had been selling methamphetamines together for approximately seven years, and that other family members helped them conduct their ‘business;’ ․ further, in 1992 the father's brother was shot by an unknown assailant in his apartment which was located in the same apartment complex in which Miguel and his parents lived;  ․ further, the Mt. View Police Department is continuing an on-going investigation that has implicated other family members;  ․ further, that the minor's father was convicted on one count of transportation, sale, distribution of a controlled substance and sentenced on May 19, 1995 to five years in State Prison with a release date of 10/11/97 at which time he will be deported by the INS to Mexico;  ․ further the minor's mother was convicted on one count of transportation sale, distribution of a controlled substance and sentenced on 6/16/95 to seven years in State Prison with a release date of 12/21/99 at which time she will be deported by [the] INS to Mexico.”

3.   Detective Beal had reported that in 1992 father's brother was shot by unknown assailants who attempted to break in to his Hayward apartment in the same complex as father and mother lived.   The assailants shot through a partially-open door and seriously wounded the brother, paralyzing him.   The police believed that this was a drug-related shooting.

4.   There was some concern over Miguel's inappropriate sexual knowledge and behavior.

5.   Evidence Code section 1040 provides in relevant part:  “(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:  [¶] (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice․”Evidence Code section 1041 provides in relevant part:  “(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and:  [¶] (2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice․”

6.   Evidence Code section 915 provides in relevant part:  “(b) When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer) ․ and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other person as the person authorized to claim the privilege, is willing to have present.   If the judge determines that the information is privileged, neither he nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.”

7.   The social worker also testified in camera in part, concerning information she received from Detective Beal.

WUNDERLICH, Associate Justice.

PREMO, Acting P.J., and ELIA, J., concur.

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