IN RE: LOIS P. et al.

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Court of Appeal, First District, Division 2, California.

IN RE: LOIS P. et al., Persons Coming Under the Juvenile Court Law. Robert M. WEIGLE, as Chief Probation Officer, etc., Plaintiff and Respondent, v. JOANNE P., Defendant and Appellant.

A029105.

Decided: December 17, 1985

Victor J. Wahl, Sunnyvale, for defendant and appellant. Leo Himmelsbach, Dist. Atty., Santa Clara County, Robert J. Masterson, Deputy Dist. Atty., San Jose, for minors. John K. Van de Kamp, Atty. Gen., for plaintiff and respondent.

Joanne P. appeals from orders of the superior court sustaining petitions alleging that her minor children, Lois P., Stephen C., Keith C. and Roland P., are dependent children within the meaning of Welfare and Institutions Code section 300, and directing that the minors be placed in foster care under the supervision of the Santa Clara County Department of Social Services.1  She contends that the orders were based solely upon the hearsay report of the social worker, and that such evidence is legally insufficient to sustain a determination that a minor is a dependent child under section 300.   We agree and accordingly reverse.

Lois, Stephen and Keith were first made dependents of the court below, pursuant to section 300, subdivision (a),2 on March 15, 1983, when they were one, three and four years of age, respectively.   The bases for the petitions included abusive behavior by the father, lack of a suitable place of abode, bruises to the children as a result of excessive discipline, and the dirty and disheveled condition of the home.   On March 30, 1983, the children were returned to the custody of their mother with orders that she participate in counseling and parenting classes.

On May 6, 1983, the court granted Joanne permission to return to New Hampshire, her original home state, with the three children.   It appears, however, that she did not do so at that time.

Roland was born on July 12, 1983.   On July 28, 1983, a petition was filed alleging that he was a dependent child under section 300, subdivision (a), because he had suffered an unexplained excessive weight loss and because his siblings had been previously abused and neglected.   On August 12, 1983, Roland was made a dependent child of the court and returned to his parents with orders regarding counseling and cooperation with health and social services personnel.

On January 20, 1984, the parents appeared at a semi-annual review hearing and were given permission by the court to move to Arizona.   They did not, however, move to Arizona.   Rather, in approximately March 1984, they moved with the children to New Hampshire.   The court approved this move on March 20, 1984, and ordered that the children remain dependents of the court until the annual review hearing scheduled for June 1984.

On April 27, 1984, petitions were filed alleging that Stephen, Keith and Roland were dependent children under section 300, subdivision (d),3 because they had been placed in protective custody in New Hampshire when they were found to have bruises resulting from excessive physical discipline, and because they resided in a home which was unfit by reason of neglect, cruelty and depravity.   A petition was also filed at that time alleging that Lois was a dependent child under section 300, subdivision (a), as she had been taken into protective custody in New Hampshire because her siblings had been found to suffer from excessive physical discipline, and she had no parent exercising proper and effective parental care and control.4

The jurisdictional hearings on the new petitions were scheduled to coincide with a review hearing on May 25, 1984.   After two continuances, the hearings were held on June 28, 1984.

At the hearing the trial court admitted into evidence, at the request of the district attorney and over the objection of Joanne's counsel, the report of James Eddy, the social worker assigned to the case by the Department of Social Services.5  Joanne's counsel objected on the grounds that the report was inadmissible hearsay;  that sections 355 and 701 require that evidence which is legally admissible in a civil case be produced in order to sustain the petitions;  and that admission of the hearsay report violated Joanne's right to due process of law.   The report of the social worker was the only evidence introduced by the district attorney.

Joanne's counsel called James Eddy as a witness.   He testified that he obtained the information which led to the petitions being filed exclusively from what other people told him.   In particular he relied upon conversations with Barbara Larsen, the New Hampshire social services worker assigned to Joanne's case.   Larsen, in turn, had relied in part upon a police report from Manchester, New Hampshire, and a New Hamshire hospital report.   She sent Eddy a copy of the police report and a copy of a report she had written.   Eddy also testified that no attempts had been made to produce witnesses from New Hampshire.

The superior court sustained the petitions as to all four children on June 28, 1984, and ordered that they remain in foster care in New Hampshire, with the New Hampshire department of social services to administer a reunification plan which had been prepared by the Santa Clara County Department of Social Services.   This timely appeal followed.

We first reject appellant's contention that due to its hearsay nature the probation officer's report was inadmissible.  Evidence Code section 1200, subdivision (b), provides that hearsay evidence is inadmissible “except as provided by law.”   A valid exception to the hearsay rule is created by sections 281, 355 and 701 of the Welfare and Institutions Code, authorizing admission of such a report despite its hearsay nature.

Section 281 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.”   Section 355 provides in relevant part:  “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 the 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.”  Section 701 provides in relevant part:  “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.”

 Section 281 expressly provides that the court may receive and consider reports of the probation officer.6  Section 355 provides that any matter or information relevant and material to jurisdiction is admissible.   A probation officer's report is relevant and material to a jurisdictional determination that a child is dependent within the meaning of section 300.  Section 701 provides that admission and exclusion of evidence shall be pursuant to the rules established by the Evidence Code and judicial decisions.   As we have indicated, sections 281 and 355 statutorily provide for the admission of a probation officer's hearsay report in a dependency proceeding, and such a report is therefore admissible in accordance with Evidence Code section 1200, subdivision (b).7  Other appellate court decisions have similarly concluded that a probation officer's hearsay report is so admissible.  (See In re Biggs (1971) 17 Cal.App.3d 337, 344–345, 94 Cal.Rptr. 519;  In re La Shonda B. (1979) 95 Cal.App.3d 593, 157 Cal.Rptr. 280;  In re Courtney S. (1982) 130 Cal.App.3d 567, 575, 181 Cal.Rptr. 843.)

We now turn to the question of whether a hearsay probation officer's report can alone constitute a sufficient basis upon which to sustain a petition in a dependency proceeding.   We conclude that it cannot.

 Although the statutory scheme makes a hearsay probation officer's report admissible, both sections 355 and 701 contain an express limitation upon the type of evidence which is sufficient to sustain a dependency petition under section 300.   Those sections require proof by “a preponderance of evidence, legally admissible in the trial of civil cases” to support a finding that a minor is a person described by section 300.   A hearsay (or, as in this case, multiple hearsay) probation officer's report would not be admissible in the trial of an ordinary civil case.8  Consequently it cannot constitute the sole basis for a determination of dependency pursuant to section 300.9

Respondent's reliance upon In re Richard E. (1978) 21 Cal.3d 349, 146 Cal.Rptr. 604, 579 P.2d 495 and In re Marcos S. (1977) 73 Cal.App.3d 768, 140 Cal.Rptr. 912 is misplaced.   First, those cases involved proceedings under Civil Code section 232 and did not involve statutes with provisions such as those contained in sections 355 and 701.   Second, while probation reports were admitted in those cases, other non-hearsay evidence was also admitted.   Third, our reading of those cases does not indicate that contentions were there made that determinations had improperly been based upon hearsay probation reports alone.

Respondent's reliance upon In re Richard E. (1978) 21 Cal.3d 349, 146 Cal.Rptr. 604, 579 P.2d 495 and In re Marcos S. (1977) 73 Cal.App.3d 768, 140 Cal.Rptr. 912, cases involving proceedings to declare minors free from parental custody and control, is misplaced.   While probation reports were admitted in those cases, pursuant to Civil Code section 233, other non-hearsay evidence was also admitted in each case.10  The appellant father testified himself in In re Richard E., conceding his criminal convictions resulting in a lengthy federal court sentence which persuaded the trial court that there was no reasonable probability that he would be released in time to embark upon a meaningful parental relationship with Richard.  (21 Cal.3d at pp. 355–356, 146 Cal.Rptr. 604, 579 P.2d 495.)   Six witnesses testified in In re Marcos S., and non-hearsay documentary evidence was introduced in addition to the probation report.  (73 Cal.App.3d at p. 773, 140 Cal.Rptr. 912.)   Additionally, in those cases no contentions were made that determinations had improperly been based on hearsay probation reports alone.

The conclusion which we reach here is supported by decisions of the Supreme Court in different contexts.   In Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 189 Cal.Rptr. 512, 658 P.2d 1313, the court held that the provisions of Vehicle Code section 14108 which permit the department to consider its own records at any administrative hearing do not supersede the express provisions of Government Code section 11513, which permit hearsay evidence to be introduced to supplement or explain other evidence but provide 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.)  (Cf. Conservatorship of Manton (1985) 39 Cal.3d 645, 217 Cal.Rptr. 253, 703 P.2d 1147 [investigative officer's hearsay report, while admissible at hearing, not admissible at contested trial in conservatorship proceeding in absence of express statutory authorization].)

The orders sustaining the petitions are reversed and the matter is remanded to the superior court for further proceedings consistent with the views expressed in this opinion.11

FOOTNOTES

1.   All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.   Section 300, subdivision (a), provides in relevant part:  “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:  (a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control.”

3.   Section 300, subdivision (d) provides:  “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.”Section 364, subdivision (e), provides that when a parent has retained custody of a minor subject to supervision by a probation officer and that officer receives a report indicating that the minor is a person described in section 300, subdivision (d), the probation officer shall commence proceedings to have the minor removed from the care, custody and control of the parent.

4.   “The state may intervene to protect a minor, when the minor's sibling has been mistreated.”  (In re Dorothy I. (1984) 162 Cal.App.3d 1154, 1157, 209 Cal.Rptr. 5.)   A petition filed on this basis is commonly referred to as a “sibling petition.”  (Ibid.)

5.   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.)

6.   This provision is also contained in rule 1365(d) of the California Rules of Court, with the requirement that the probation officer or social worker be made available for cross-examination upon request of the parent or guardian:  “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.”

7.   Appellant does not pursue on appeal her contention that admission of the hearsay probation report denied her due process of law.   We therefore do not examine that issue in the context of this case.   We note, however, that admission of a California probation officer's hearsay report, which was based upon an Arizona probation report, has been upheld over a due process challenge in a proceeding to free a minor from parental custody and control pursuant to Civil Code section 232.  (In re Gary U. (1982) 136 Cal.App.3d 494, 501–502, 186 Cal.Rptr. 316 [Parent must have opportunity to cross-examine the investigative officer and the sources from which he obtained information inserted into the probation report.   “[Appellant] does not show how he was denied a meaningful opportunity to cross-examine the sources of this information.   While he correctly states there is no statutory means for him to subpoena the named out-of-state witnesses to personally appear in the California Court, he does not tell us why he was unable to examine these Arizona witnesses through depositions or interrogatories under the provisions of sections 2024 and 2018, subdivision (b) of the Code of Civil Procedure, which mandate the superior court to issue letters rogatory or appoint a commissioner for such purpose upon a showing of necessity.”  (Footnote omitted.) ].)

8.   Respondent has not suggested that such a report comes within any traditional exception to the hearsay rule.   While such a report is by statute admissible in a child dependency proceeding, it would not be admissible in the trial of a civil action.  (Cf. Conservatorship of Manton (1985) 39 Cal.3d 645, 649, 217 Cal.Rptr. 253, 703 P.2d 1147 [“Clearly, but for some exception to the hearsay rule, the report [of an investigative officer in a conservatorship proceeding] would be inadmissible as containing hearsay and even hearsay on hearsay (Evid.Code, § 1200.)”].)

9.   The report may, however, be used to supplement or explain other evidence and may be used in determining an appropriate disposition after a finding of dependency has been made.

10.   Respondent appears to suggest that a termination of parental rights under Civil Code section 232 could be based solely upon a hearsay probation report.   We know of no authority for that proposition.

11.   The record herein discloses that some attempts were made to have this matter resolved in New Hampshire rather that California.   The extent of those efforts, however, is unclear.   Both California and New Hampshire have adopted the Interstate Compact on the Placement of Children.  (Civ.Code, § 264 et seq.;  N.H.Rev.Stat.Ann. § 170–A:1 et seq.)   It appears that even at the time of the proceedings herein, it would have been desirable to have the matter resolved in New Hampshire.   Should the parties remain in New Hampshire at the time of remand, the desirability of having the matter resolved there will be obvious, and all efforts should be made, in accordance with the interstate compact, to bring about such a resolution.

SMITH, Associate Justice.

KLINE, P.J., and ROUSE, J., concur.