IN RE: AMANDA I. and Sara M., Persons Coming Under the Juvenile Court Law, WELFARE DEPARTMENT, Plaintiff and Respondent, v. DANNY I. and Christine I., Defendants and Appellants.
After a contested jurisdictional hearing the Superior Court of Sacramento County, sitting as a juvenile court, sustained petitions alleging that the minor children Sara M., and Amanda I., are dependent children within the meaning of Welfare and Institutions Code section 300, subdivision (d).1 The basis for both petitions was an allegation that Danny I., the natural father of Amanda and the stepfather of Sara, had committed lewd and lascivious acts upon the person of Sara. After a dispositional hearing the children were declared dependent children, and Amanda was returned to her mother's custody while Sara was placed in the custody of the welfare department for suitable foster care placement. The mother and father appeal. They contend that the trial court erred in admitting hearsay reports of the social worker into evidence, and that the evidence is insufficient. We reaffirm that the juvenile court, if due process standards are met, may receive into evidence and consider the hearsay reports of the social worker in a contested jurisdictional hearing in a dependent children proceeding under section 300. We further hold, however, that those reports do not constitute sufficient evidence to support a finding of dependency, and in the absence of other competent evidence such a finding cannot be sustained. Because the juvenile court based its dependency findings upon those hearsay reports rather than solely on “a preponderance of evidence, legally admissible in the trial of civil cases” as required by statute (§§ 355, 701), we shall reverse.
Sara was born on October 5, 1980, and was three years old at the time of the proceedings below. Amanda was born on March 24, 1983, and was less than one year old during those proceedings. Christine I., is the natural mother of both children. Danny I., is the natural father of Amanda and the stepfather of Sara.
On November 2, 1983, Christine took her daughter Sara to a school nurse. Christine told the nurse that she suspected that Sara had been sexually abused, and she asked the nurse to examine her. The nurse observed that Sara's vaginal area was red and swollen, and the area between her vagina and rectum was red streaked. Christine said she had been away for the weekend and had left Sara in the care of her sister-in-law, and she named several persons she thought might be responsible. The nurse felt that Sara might have been sexually abused, and she filed a suspected child abuse report the following day.
That same day Christine also took Sara to the medical center of the University of California, Davis. Sara was examined by Dr. Desai, who observed a yellowish discharge and a redness of the vagina. There were no bruises, and there were no tears in the hymen. Dr. Desai reported there was no clinical evidence of sexual abuse, but that it could not be ruled out.
On November 4, 1983, Christine again took Sara to the medical center because she had a fever. Dr. Cardeno examined Sara and noted a minimal discharge from the vagina. Tests revealed the presence of bacteria which normally originates in the anus region. Dr. Cardeno did not find any evidence of penetration, or any contusion or swelling. He testified that he always keeps the possibility of sexual molestation in the back of his mind, but he did not think he would put it as a possibility based upon his physical examination of Sara.
After an investigation a petition was filed alleging that Sara was a dependent child in that her stepfather had committed lewd and lascivious acts upon her during the last week of October 1983. This petition was eventually dismissed and a new petition was filed alleging that the lewd and lascivious acts occurred during the year before December 1, 1983. At a later date a separate petition was filed alleging that Amanda was a dependent child in that her father had committed lewd and lascivious acts upon the person of her sibling, Sara.
When the matter came on for a jurisdictional hearing the County called the social worker who had prepared the original investigative report and she authenticated it. The court admitted the report into evidence over appellants' hearsay objection. A second report, prepared by the same social worker, was also admitted into evidence over objection. The County indicated that it would submit the matter on the basis of the information in the reports. As a result, the County presented no evidence, other than the investigative reports, during its case-in-chief. All of the evidence taken during the jurisdictional hearing concerned appellants' efforts to rebut information in the reports, and surrebuttal by the County.
The reports of the social worker are basically summaries of the investigation. The reports are, of course, hearsay. Further, all of the information in the reports was hearsay to the investigator who prepared the reports. In other words, the information would constitute hearsay evidence if the investigator were testifying to the information rather than submitting it through a report. In some cases the information had been relayed through multiple persons before being told to the investigator. Perhaps the most damaging information in the reports consisted of statements attributed to Sara in which she said her daddy, whom she identified as Danny, committed lewd and lascivious acts upon her. Sara was not called to testify at the hearing by either side.
The Juvenile Court Law is found at Chapter 2 of Part 1 of Division 2 of the Welfare and Institutions Code. (§ 200 et seq.) Chapter 2 contains several provisions dealing with matters which may be considered at a jurisdictional hearing in a section 300 proceeding. Article 5 of that chapter deals generally with probation officers and their duties. Section 281, a part of that article, provides: “The probation officer shall upon order of any court in any matter involving the custody, status or welfare of a minor or minors, make an investigation of appropriate facts and circumstances and prepare and file with the court written reports and written recommendations in reference to such matters. The court is authorized to receive and consider the reports and recommendations of the probation officer in determining any such matter.” In a section 300 proceeding the duties of the probation officer with respect to the report may be performed, as they were here, by the county welfare department. (§ 272; In re Biggs (1971) 17 Cal.App.3d 337, 344, 94 Cal.Rptr. 519.)
Article 9 of that chapter deals with hearings on dependent children petitions. Section 355, a part of article 9, reads: “At the hearing, the court shall first consider only the question whether the minor is a person described by Section 300, and for this purpose, any matter or information relevant and material to circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300. If the minor is not represented by counsel at the hearing, it shall be deemed that objections that could have been made to the evidence were made.”
Article 17 of the Juvenile Court Law deals with juvenile court hearings. Section 701 of that article provides: “At the hearing, the court shall first consider only the question whether the minor is a person described by Section 300, 601, or 602. The admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision. Proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602, and a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300 or 601․ If the minor is not represented by counsel at the hearing, it shall be deemed that objections that could have been made to the evidence were made.”
It can be seen that the Legislature has enacted different statutes purporting to control the same subject matter, with somewhat differing provisions. Section 281 provides that the juvenile court may receive and consider a report of a social worker. Section 355 directs that any matter or information which is relevant and material may be received into evidence. And finally, section 701 decrees that the admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision. Appellants contend that section 701 must be deemed controlling, and that pursuant to the rules of evidence established by the Evidence Code and judicial decisions the social worker's reports were not admissible.
We must reject appellants' contention. It is well established that a general statutory provision is controlled by a specific provision, the latter being regarded as an exception to the former. (Bailey v. Superior Court (1977) 19 Cal.3d 970, 976–977, fn. 8, 140 Cal.Rptr. 669, 568 P.2d 394; Rose v. State of California (1942) 19 Cal.2d 713, 723–724, 123 P.2d 505.) Section 701 is general in scope, providing the rules of evidence generally applicable in all juvenile proceedings. Section 281, on the other hand, is specific and must be regarded as an exception to the general rules of evidence which are otherwise applicable. Similarly, section 355, which authorizes the admission in section 300 proceedings of “any matter or information relevant and material to circumstances or acts” bringing the minor within the jurisdiction of the juvenile court, must be considered more specific than the general provision in section 701 governing the admissibility of evidence in all types of juvenile proceedings. Indeed, it appears that the inclusion in the Welfare and Institutions Code of different provisions relating to the same subject was accidental. Prior to 1976 the provisions of the code governing minors now called dependent children were contained in section 600. (See Stats.1961, ch. 1616, § 2, p. 3471.) That section and sections 601 (relating to children beyond the control of their parents), and 602 (dealing with children who have committed acts which would be crimes if they were adults), were grouped together in Article 5 under the title “Jurisdiction.” (Ibid.) In 1976 the Legislature determined to separate dependent children from children governed by sections 601 and 602, and this latter group is now referred to as “wards.” As a result, former section 600 was repealed and section 300 was enacted to govern dependent children. (Stats.1976, ch. 1068, §§ 6, 20, pp. 4759, 4782.) At the same time sections 281 and 355 were enacted. (Id., §§ 5, 9, pp. 4758–4759, 4771.) Section 281 is a substantial reenactment of former section 582 which was repealed, and section 355 is likewise a substantial restatement of the provisions of former section 701 as they applied to children formerly governed by section 600. (See Stats.1961, ch. 1616, § 2, pp. 3471, 3482.) In making these changes, the Legislature declared: “It is the intent of the Legislature in enacting this act to completely separate the statutory references in Section 600 through 800 of the Welfare and Institutions Code to, respectively, dependent children and wards of the juvenile court, by nonsubstantive amendments.” (Stats.1976, ch. 1068, § 82, p. 4799.) Also in 1976 the Legislature passed a bill to modify the procedure in juvenile court hearings by amending section 701 to provide, as it now does, that the rules of evidence in the Evidence Code and in judicial decisions govern the proceedings. (Stats.1976, ch. 1071, § 27, p. 4825.) The section continued to refer to proceedings to determine whether the minor is a child described by “Sections 600, 601, or 602,” although, as we have seen, section 600 had been repealed and replaced by section 300. In 1977 the Legislature enacted a bill “relating to maintenance of the codes.” (Stats.1977, ch. 579.) The measure amended, repealed and/or renumbered provisions in numerous codes. In this measure section 701 of the Welfare and Institutions Code was amended so that the reference to section 600 was changed to section 300. (Id., § 196, p. 1922.) This history rebuts that any contention that the amendment of section 701 in 1977 was intended to effect a substantive change in the law relating to dependent children or to repeal by implication section 355. Chapter 579 of the Statutes of 1977 was simply a clean-up bill enacted to maintain the codes. Indeed, a single bill could not, consistent with the single subject restriction, effect substantive changes in so many numerous and diverse statutory provisions as were amended, repealed or renumbered by that measure. (See Cal. Const., art. IV, § 9.) Accordingly, section 355, with its more specific application to dependent children proceedings, continues to govern the procedure at such hearings.
In any event, the Legislature mandated in section 701 that the admission and exclusion of evidence at the hearings shall be pursuant to the rules of evidence established in the Evidence Code and “by judicial decision.” At the time of the hearing the admissibility of the social worker's report had long been established by judicial decision. (In re Biggs, supra, 17 Cal.App.3d at pp. 344–345, 94 Cal.Rptr. 519.) As the Biggs court noted, “[t]he juvenile court, in considering the social study report, was following the dictates of section 582 [now 281].” (Id., at p. 344, 94 Cal.Rptr. 519, citations omitted.) The decision in Biggs has been recently reaffirmed in two Court of Appeal decisions. (In re Courtney S. (1982) 130 Cal.App.3d 567, 575, 181 Cal.Rptr. 843; In re La Shonda B. (1979) 95 Cal.App.3d 593, 601, 157 Cal.Rptr. 280.) In short, the reports were admissible over hearsay objection because sections 281 and 355 and judicial decisions construing them establish a valid exception to the hearsay rule in juvenile hearings involving the welfare of children. Hearsay evidence, it must be recalled, is inadmissible “[e]xcept as provided by law.” (Evid.Code, § 1200, subd. (b).) As Justice Jefferson noted, “[i]n declaring that hearsay evidence is inadmissible except as provided by law, Evid C § 1200(b) makes it clear that any statutory provision or judicial decision that provides for admission into evidence of a declarant's hearsay statement, whether in trial, in a pretrial, or post-trial proceeding, or in a special proceeding, thereby creates a valid exception to the hearsay rule. Thus, although the well-known exceptions to the hearsay rule are found in the Evidence Code, a few are found in other codes and in the decisional law although they may not be labelled as exceptions to the hearsay rule. Evidence Code § 1200(b) constitutes specific legislative authority and recognition for the creation of new and additional hearsay exceptions either by statute or by judicial decision.” (1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 18.8, p. 437; emphasis in original.) Sections 281 and 355 create such an exception to the hearsay rule.
Moreover, hearsay reports made admissible by statute or judicial decision are not excludable because they may contain multiple hearsay. As the Court of Appeal noted in the context of proceeding to declare a child free of parental custody under Civil Code section 232, “[a] probation report is itself hearsay evidence as it constitutes the hearsay statements of the probation officer. To the extent that it relates statements made by others to the probation officer, it constitutes double and sometimes multiple hearsay. Civil Code section 233 [nevertheless] makes a probation report admissible in proceedings related to the welfare of children because of the necessity of providing the court with a coherent picture of the child's situation.” (In re Rose G. (1976) 57 Cal.App.3d 406, 426, 129 Cal.Rptr. 338; see also In re George G. (1977) 68 Cal.App.3d 146, 155–156, 137 Cal.Rptr. 201.) In light of these authorities, we are satisfied that a social worker's report may be admitted over a hearsay objection at a contested jurisdictional hearing on a section 300 petition.
But hearsay is not the only hurdle to be overcome before the reports were admissible in evidence over objection; due process standards must also be met. Appellants argue that those due process standards require that the social worker's reports be excluded. As the Supreme Court noted in a proceeding to free a child from the custody of her parents under Civil Code section 232, “[i]t has been held that ‘the written report mandated by the statute is admissible over a general hearsay objection so long as a meaningful opportunity to cross-examine and to controvert the content of the report is afforded.’ (Citations.).” (In re Angelia P. (1981) 28 Cal.3d 908, 926, 171 Cal.Rptr. 637, 623 P.2d 198.) We agree with the County that the due process rights of parents in dependency hearings are analogous to those accorded them in proceedings brought under Civil Code section 232. In both cases the parents' fundamental custodial rights are at risk. “In most dependency matters the focus is against the parent and the prospect faced is the drastic result of loss of his child. Although legal scholars may deemphasize the adversary nature of dependency proceedings and characterize the removal of the child from parental custody as non-punitive action in the best interests of the child, most parents would view the loss of custody as dire punishment․ [T]he section  petition is in a sense brought against the parents to deprive them of a valued right.” (Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 901, 97 Cal.Rptr. 158.) Since the parental right to the custody of children is included among the fundamental liberties protected by the due process clause, that right cannot be infringed except by a proceeding which accords the parents the essential ingredients of due process. (Id., at pp. 901–902, 97 Cal.Rptr. 158.) Thus when hearsay investigative reports are offered into evidence at a contested jurisdictional hearing, due process mandates “ ‘that each party (a) receive a copy of the report, (b) be given an opportunity to cross-examine the investigative officer and to subpoena and examine persons whose hearsay statements are contained in the report, and (c) be permitted to introduce evidence by way of rebuttal.’ ” (In re George G., supra, 68 Cal.App.3d at pp. 156–157, 137 Cal.Rptr. 201, quoting Long v. Long (1967) 251 Cal.App.2d 732, 736, 59 Cal.Rptr. 790. Accord, In re Gary U. (1982) 136 Cal.App.3d 494, 501, 186 Cal.Rptr. 316; see also, McLaughlin v. Superior Court (1983) 140 Cal.App.3d 473, 189 Cal.Rptr. 479.) This due process requirement has been adopted in part in California Rules of Court, rule 1365(d). That rule provides: “A probation or social worker's report, including any social study, containing information relevant and material to the jurisdiction hearing is admissible if, on request of the parent or guardian, the probation officer or social worker is made available to be cross-examined regarding the contents of the report.”
We further agree with the County that those due process requirements were met here. Appellants were furnished copies of the reports and had an opportunity to, and did, cross-examine the social worker who prepared the reports. Appellants were further given the opportunity to subpoena and examine the persons whose hearsay statements were contained in the reports. Finally, appellants were permitted to introduce evidence by way of rebuttal. The trial court, consequently, properly admitted the reports into evidence.2
Our conclusion that the social worker's reports were properly be admitted into evidence does not end the matter. What is admissible and what will sustain a finding are horses of a different color. “The mere admissibility of evidence does not necessarily confer the status of ‘sufficiency’ to support a finding absent other competent evidence.” (Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 538, fn. 3, 189 Cal.Rptr. 512, 658 P.2d 1313.) In providing that the report of the social worker may be received and considered, the Legislature did not intend to create a system of trial by social worker, or trial by report. A finding under section 300 must be supported by a preponderance of evidence, legally admissible in the trial of civil cases. (§§ 355, 701; Cal.Rules of Court, rule 1365(b).) As the Court of Appeal for the Second District recently confirmed, a “determination that a minor is a dependent child of the court must be established by proof which is legally admissible in civil trials (W & IC, § 355).” (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1115, 200 Cal.Rptr. 789, fn. omitted.) The statutory phrase “legally admissible in the trial of civil cases”, contained in both sections 355 and 701, necessarily refers to evidence which would be admissible in an ordinary civil proceeding without the special statutes governing the admission of evidence in juvenile court hearings. In this case nothing in the reports of the social worker would have been admissible in the trial of an ordinary civil action. This would be so whether the social worker was called to testify as to that information or the proponent simply introduced it by report.3
Our conclusion that the reports did not constitute evidence which would be admissible in an ordinary civil case is not changed by In re Halamuda (1948) 85 Cal.App.2d 219, 192 P.2d 781. Halamuda held that in a proceeding to free a child from the custody of its parents, the statutory report of the probation officer, although hearsay, was legal evidence on which the court could decide the case because the report was an official and judicial record. The precedential value of Halamuda was undermined in Daniels v. Department of Motor Vehicles, supra, 33 Cal.3d 532, 189 Cal.Rptr. 512, 658 P.2d 1313. There the high court held that a statute authorizing the Department of Motor Vehicles to “consider its official records” did not constitute legislative authorization to use a hearsay report filed with the department as the sole basis for a license suspension. (Id., at p. 538, 189 Cal.Rptr. 512, 658 P.2d 1313.) Moreover, unlike the special statutes admitting probation officer's reports in cases involving the welfare of children, as was the case in Halamuda and here, a hearsay investigative report is not admissible in an ordinary civil case. Both the business records and official records exceptions to the hearsay rule require that “[t]he writing was made at or near the time of the act, condition, or event,” and that “[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid.Code, §§ 1271, subds. (b) and (d); 1280, subds. (b) and (c).) Thus while that portion of the social worker's report containing statistical facts relating to the minor's age may qualify as a business record (see In re James H. (1981) 121 Cal.App.3d 268, 271, 175 Cal.Rptr. 141), recorded third party descriptions and observations of criminal acts allegedly perpetrated upon a minor would not qualify as either under either the business record or official record exceptions to the hearsay rule. (People v. Baeske (1976) 58 Cal.App.3d 775, 780–781, 130 Cal.Rptr. 35; Behr v. County of Santa Cruz (1959) 172 Cal.App.2d 697, 704–705, 342 P.2d 987.) Jefferson correctly notes that “a public employee's writing which is based upon information obtained from persons who are not public employees, is generally excluded because the ‘sources of information’ are not ‘such as to indicate its trustworthiness' as required by Evid C § 1280.” (1 Jefferson, Cal.Evidence Benchbook, supra, § 5.1, p. 246.) He similarly notes as to business records that “[g]enerally, if the evidence in a particular case discloses that the entries in a written business record are not based upon the personal knowledge of the recorder or upon the personal knowledge of an informant-employee having a business duty to observe accurately and report his observations accurately to the recorder-employee, the business record involved is not considered trustworthy hearsay and is not admissible under the business-record exception to the hearsay rule.” (Id., § 4.1, p. 212; see also Witkin, Cal.Evidence (2d ed. 1966) The Hearsay Rule, § 585, pp. 557–558.) Since the reports in this case would not be admissible in the trial of a civil case, they were not competent evidence on which to base a finding under section 300.
The conclusion we reach is well supported by decisions rendered in other comparable contexts. In In re Michael V., supra, 10 Cal.3d 676, 111 Cal.Rptr. 681, 517 P.2d 1145, a police report had been admitted into evidence at the minor's request at a jurisdictional hearing in a 602 proceeding. Noting that the former version of section 701 rendered admissible in jurisdictional proceedings “ ‘any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court,’ ” the court concluded that “incompetent evidence, such as hearsay, may be received in evidence.” (Id., at p. 684, 111 Cal.Rptr. 681, 517 P.2d 1145.) 4 But the court cautioned that, absent invited error on the minor's part, incompetent evidence may not be relied upon to support a judgment. The court said: “Thus, when the state introduces incompetent evidence, the juvenile court does have a duty to exclude consideration of it as a ground for its jurisdictional judgment, and it must do this on its own motion.” (Id., at pp. 684–685, 111 Cal.Rptr. 681, 517 P.2d 1145.)
As we have already noted, the Supreme Court also had occasion to consider the question in an analogous adjudicatory hearing in Daniels v. Department of Motor Vehicles, supra, 33 Cal.3d 532, 189 Cal.Rptr. 512, 658 P.2d 1313. There the Department had revoked a driver's license for the failure to file an accident report (Veh.Code, § 16000 et seq.), after an administrative hearing in which the sole evidence presented was a report filed by another driver. The Department contended that this procedure was justified since Vehicle Code section 14108 requires the Department to consider its official records at an administrative hearing, and the accident report was a part of those records. The court disagreed. The provision of Vehicle Code section 14108 which permitted the department to consider its records did not supersede the express provisions of Government Code section 11513, which permits hearsay evidence to be introduced to supplement or explain other evidence, but which provides that such evidence “shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (33 Cal.3d at p. 538, 189 Cal.Rptr. 512, 658 P.2d 1313.) In the absence of an expression of clear legislative intent, a provision permitting a trier of fact to consider information does not confer upon such information the status of sufficiency where legally admissible evidence is specifically required. (Ibid.)
Although the Supreme Court was concerned in Daniels with administrative hearings, the reasoning of that decision is equally applicable here. Section 281 permits the court to receive and consider the social worker's report in a section 300 proceeding. However, sections 355 and 701 specifically require proof by a preponderance of evidence which would be legally admissible in the trial of a civil action. It is clear from these sections that the County cannot evade its burden of proof and the rules of evidence through the expedient of putting otherwise inadmissible information into a social worker's report.
The County contends that even if the social worker's reports are disregarded the decision of the juvenile court should be affirmed because there was sufficient other evidence. We cannot agree with this contention. The County presented no evidence in its case-in-chief other than the social worker's reports and its surrebuttal. All the other evidence was presented by appellants in an attempt to rebut the information in those reports. If the social worker's reports were disregarded, the remaining evidence constituted at best a weak case. It was clear that the school nurse who first examined Sara formed the opinion that Sara may have been sexually abused based in part upon Christine's expressed fears. Although she could not rule it out, when Dr. Desai examined Sara she found no clinical evidence of sexual abuse. She later expressed the opinion that Sara had been abused sexually, but it was clear that this reevaluation was not due to reconsideration of the medical findings, but was instead based upon a reading of the investigative reports. Dr. Cardeno found no clinical evidence of molestation. Although he testified that Sara's condition could have been caused by molestation, he would have expected to find other indications had that been the case.5
The remaining evidence consisted of speculative inference and innuendo. It primarily consisted of various statements attributed to Christine. These statements, however, failed to establish that Christine had personal knowledge of any incident of sexual abuse of Sara. It is clear that Christine feared that Sara had been sexually abused. It is also clear that her suspicions enveloped a number of persons, including her husband. The County has attempted to isolate statements Christine made concerning her suspicion of her husband's involvement, and to utilize those statements as proof of his actions. However, in the absence of some showing of the facts which justified Christine's suspicions her statements regarding those suspicions cannot serve as competent evidence to establish Danny's actions. (See Sneed v. Marysville Gas etc. Co. (1906) 149 Cal. 704, 707, 87 P. 376; Harrigan v. Chaperon (1953) 118 Cal.App.2d 167, 168, 257 P.2d 716.) 6
We need not determine whether this evidence, standing alone, would be sufficient to support a finding under section 300. It is clear that the trial court intended to and did consider the information in the social worker's reports in reaching its decision. Based upon that information the court shifted the burden to appellants to disprove the allegations. In view of the general weakness of the remaining evidence, the court's consideration of the incompetent but highly prejudicial information in the social worker's reports in support of the allegations of the petition must be considered prejudicial. (See Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 525, 113 Cal.Rptr. 277; Wilson v. Manduca (1965) 233 Cal.App.2d 184, 189, 43 Cal.Rptr. 435.)
The jurisdictional decisions of the trial court in the above entitled matters are reversed and the cause is remanded for further proceedings not inconsistent with the views expressed in this opinion.
1. Welfare and Institutions Code section 300, subdivision (d) reads: “Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court: [¶] ․ (d) Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or physical abuse of either of his parents, or of his guardian or other person in whose custody or care he is.”All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
2. Questions relating to the admissibility of reports of probation officers or social workers in 300 proceedings are, of course, distinct from those arising in 602 proceedings where jurisdiction is based upon a criminal act by the minor. (In re Biggs (1971) 17 Cal.App.3d 337, 344–345, 94 Cal.Rptr. 519. See also In re Michael V. (1974) 10 Cal.3d 676, 683, 111 Cal.Rptr. 681, 517 P.2d 1145; In re Gladys R. (1970) 1 Cal.3d 855, 859–862, 83 Cal.Rptr. 671, 464 P.2d 127. Compare Cal.Rules of Court, rule 1365(d) with rule 1355(d).)
3. Both reports consisted of hearsay on hearsay, in some instances multiple layered hearsay. In cases of multiple hearsay in ordinary civil actions, each statement must be subject to an exception to the hearsay rule in order for the statements to be admissible. (Evid.Code, § 1201; People v. Lew (1968) 68 Cal.2d 774, 778, 69 Cal.Rptr. 102, 441 P.2d 942.) In this case even the statements which might otherwise be within an exception to the hearsay rule could not be proven through the testimony of the investigator, since they were hearsay to her.
4. As we have noted in the text, section 701 was rewritten in 1976 and the portion relating to dependent children was transferred to and enacted as section 355 in substantially identical language. (See Stats.1976, ch. 1068, § 9, p. 4771; Stats.1976, ch. 1071, § 27, p. 4825.)
5. In a proceeding under section 300, the County may rely upon the presumptions set forth in sections 355.1 through 355.4. Specifically, where the court finds, based upon competent professional evidence, that the minor's condition would ordinarily not be sustained except as the result of the abuse or neglect of the parent or guardian, then the burden of producing evidence shifts to the parent or guardian. (§§ 355.1–355.6.) The medical evidence in this case was manifestly insufficient to raise such a presumption. The experts simply testified that the condition of the minor was consistent with, and could have been caused by sexual abuse. No one testified that Sara's condition “would ordinarily not be sustained” except through sexual abuse.
6. One witness, Carolyn Samarin, testified that Christine told her that she had walked into the bathroom while Danny and Sara were in the shower, and that Sara was looking up and drinking the water that was running off Danny's penis. This testimony did establish the basis for the alleged statement. However, when Ms. Samarin was interviewed by a detective she had described the incident as the subject of a nightmare the child had while staying with her. No explanation was given for this change in the report.
SPARKS, Associate Justice.
CARR, Acting P.J., and SIMS, J., concur.