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IN RE: ESTRELLA R.

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Court of Appeal, Sixth District, California.

IN RE: ESTRELLA R., Che R., Jerry R., and Frank A., Jr., Minors. Robert M. WEIGLE, Department of Social Services of Santa Clara County, Plaintiffs and Respondents, v. Rosemary RANGEL and Frank Ayala, Sr., Defendants and Appellants.

A026681.

Decided: April 30, 1985

Howard Jay Specter, San Francisco, Phil H. Penneypacker, Conflicts Admin., Gary V. Crooks, San Jose, for defendants and appellants. Leo Himmelsbach, Dist. Atty., Santa Clara County, Robert J. Masterson, Deputy Dist. Atty., San Jose, for plaintiffs and respondents.

This is an appeal of certain orders rendered by the trial court following proceedings pursuant to Welfare and Institutions Code, section 300 et seq.1

Background

On November 21, 1983, the San Jose Police Department investigated an anonymous referral of child abuse.   Upon arriving at the residence concerned, an apartment in San Jose, the officers encountered Mrs. Frances Ayala, the paternal grandmother of the minor child, Frank A., Jr.   The officers inquired if she knew an Esther R.   She denied knowledge of such a person.   The officers used the telephone to confirm the anonymous call and then asked for permission to search the apartment.   Mrs. Ayala consented and then left the apartment to search for minor Estrella R.   She was accompanied by Rosemary Rangel, an appellant herein, the mother of Estrella R.

The officers, during their search, encountered Frank Ayala, Sr., also an appellant, in the apartment and he departed in haste.   They found Estrella R. in a bedroom, hiding underneath a bed.   She was observed to have multiple injuries and was very dirty;  she was removed for medical treatment.   Two older minors, Che R. and Jerry R., appeared to be malnourished and dirty, although they bore no other signs of physical abuse or injury.   The youngest minor, Frank A., Jr., while dirty, had no signs of physical abuse, did not appear to be malnourished and was generally in good health.

Petitions filed under Welfare and Institutions Code, section 300, subdivisions (a) and (d) 2 on November 23, 1983, alleged that the minor child Estrella R. had been sexually molested by her mother's live-in boyfriend, Frank Ayala, Sr., that she had severe physical injuries, was suffering from malnutrition and hypothermia and that her mother, Rosemary Rangel, had no suitable place for her to live.

Additional petitions filed under section 300, subdivision (a) alleged that the minor children, Jerry R. and Che R., were taken into protective custody after the discovery of their sister's injuries, because they were suffering from malnutrition and their mother, Rosemary Rangel, had no suitable place of abode and was not exercising proper care and control.   A petition filed on behalf of Frank A., Jr. alleged he was taken into protective custody because of the discovery of the injuries to his half-sister, because his parents, Rosemary Rangel and Frank Ayala, Sr., who were not married, had no suitable place of abode and were not exercising proper care, custody, and control.

The petitions were heard for jurisdictional purposes on January 26, 1984.   Over objection the court allowed the probation report to be entered into evidence.   Thereafter on February 21, 1984, the court ruled that each of the minor children should be made a dependent of the court.   Estrella R., Jerry R., and Che R. were placed with their natural father.   Frank A., Jr. was put in foster placement.   The court adopted a reunification program and ordered the parents to engage in therapy.

Issues on Appeal

Appellant Frank Ayala, Sr. contends the trial court committed reversible error in using the probation report as evidence to sustain its jurisdictional finding.   Appellant Rosemary Rangel for her part posits reversible error in the court's removal of Frank A., Jr. from her custody.   We shall address the issues in the order presented.

Discussion

 In the instant case the trial court admitted the probation report into evidence at the jurisdictional hearing.   In addition, the trial court used the report to sustain, in part, a finding that Frank A., Jr. was a person described in section 300, subdivision (a).3  Appellant Frank Ayala, Sr. claims the actions of the trial court were clearly erroneous as section 355 4 provides that only evidence legally admissible in the trial of a civil action may be adduced to support a finding of dependency.   A probation report is hearsay.   Hearsay is inadmissible in the trial of civil cases.   Ergo, the probation report may not be used in any fashion to sustain a finding of dependency.   This is a tidy little argument.   It is, however, incorrect in law and must be rejected.

We begin our analysis with In re Biggs (1971) 17 Cal.App.3d 337, 94 Cal.Rptr. 519.   That case expressly holds that a report of the type admitted into evidence by the trial court here is both relevant and competent to a determination of dependency.5  The Biggs rule has been consistently upheld in subsequent cases arising under section 300.  (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, 181 Cal.Rptr. 843.)   Additionally, section 281 6 specifically authorizes the court to receive such reports, to consider them and the recommendations of the probation officer in determining such matters.   The language contained in section 281 has been judicially interpreted to create an exception to the hearsay rule.  (Dahl v. Dahl (1965) 237 Cal.App.2d 407, 46 Cal.Rptr. 881.)   That court stated:  “Counsel for Mrs. Dahl complains that the report contains hearsay which is inadmissible.   Of course, the report contains hearsay.   In fact, it is hearsay.   But it is hearsay authorized by the Legislature and is therefore an exception to the rule excluding hearsay.”   (Dahl v. Dahl, supra, at p. 413, 46 Cal.Rptr. 881, emphasis in original.)   This, in turn, is entirely consistent with the rule of evidence that except as provided by law, hearsay is inadmissible.  (Evid.Code, § 1200, subd. (b).)

Adoption of appellant's suggested interpretation of section 355 would lead to some curious results.   Logically, one could say that while such evidence may not be used to support a finding of dependency, it might be used to support a finding of nondependency.   This seems a strange rule indeed.   Moreover, the trial judge, under appellant's theory, is required to disregard evidence he or she has previously heard and considered.   While we recognize the judicial mind is purportedly capable of such mental gymnastics, we are not keen to the idea of needlessly increasing the daily mental battering already inflicted upon trial court judges.

Appellant Frank Ayala, Sr. cannot, in justice, complain of such a rule either.   The probation officer who authored the report was present at the hearing and was extensively cross-examined.   Appellant had full use of the subpoena power of the court to compel attendance of any persons he desired to cross-examine.   A section 300 action is civil, not criminal, in nature (Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 97 Cal.Rptr. 158.)   His due process rights were adequately protected.

We are aware of the recent decision of the Third Appellate District in a case dealing with issues similar to those raised on this appeal.7  That decision agrees with our conclusion that the probation report is admissible as an exception to the hearsay rule.   It also confirms our assessment that Frank Ayala, Sr.'s due process rights were adequately protected through his opportunity to cross-examine at length the author of the report and resort to the subpoena power of the court to compel attendance of witnesses he wished to cross-examine.

 At this juncture we part company with our brethren in the Third District.   That court reached the conclusion that although the probation report is admissible, information contained in the report may not be used to sustain a finding of dependency.   We disagree.   Relevant statutory and case law, as previously noted, specifically provide that the information contained in a probation report is both relevant and competent as regards a dependency determination.   This rule of law, the Biggs rule, has been consistently followed until now.   We are not satisfied there is any justification to depart from that long established precedent until specifically directed to by our highest court.

Having disposed of Frank Ayala, Sr.'s objection, we now focus on that of appellant Rosemary Rangel.   She takes a somewhat different approach.   She does not contest the admissibility of the probation report nor the findings of dependency relating to three of her children.   Instead, her sole claim of error is the trial court unlawfully removed the custody of Frank A., Jr. from her.   This claim may be divided into two parts.

 She initially asserts the trial court failed to find any detriment to the minor from her continued custody.   While she is correct in her statement the court must find detriment to the minor from continued parental custody before custody may be awarded to a nonparent she is incorrect in her statement the trial court made no finding on the issue.   At the conclusion of the hearing the trial judge stated:  “․ I find the welfare of the child requires that his physical custody must be taken from the mother as there is a substantial danger to the physical health of the minor or would be if the minor were returned home and there is no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's mother's physical custody ․”  This would appear to us to be as specific a finding of detriment as the English language is capable of conveying.

There is substantial evidence in the record to support this finding.   Although the minor was seemingly in good health when he was taken into protective custody, the other children of this appellant had been properly treated.   Estrella had been physically beaten, sexually molested, and was malnourished.   Che and Jerry were malnourished and lacking of adequate dental care.

 Courts are not required to sit idly by, awaiting actual physical injury to be individually inflicted upon each minor member of a family before declaring dependency of those minors.   A court may reasonably infer a healthy minor will inevitably suffer the same debilities inflicted upon older siblings if the situation were allowed to continue.  (In re Jeannie Q. (1973) 32 Cal.App.3d 288, 107 Cal.Rptr. 646.)

 Rosemary Rangel lastly complains the reunification plan adopted by the trial court was defective in part and inadequate as a whole.   We find this contention most disturbing for it is meritless and approaches the frivolous.   The plan is said to be defective because the probation officer modified the recommendation regarding custody when criminal charges were filed against Rosemary Rangel.   Appellant contends it is improper to modify a recommendation upon discovery of the pendency of criminal charges, citing In re Jeremy C. (1980) 109 Cal.App.3d 384, 167 Cal.Rptr. 283.   This is nonsense.   In Jeremy C. there was no reunification plan at all.   The court there held it was improper, even though criminal charges were pending, not to prepare some reunification plan.   The case is hardly authority for appellant's proposition.   The idea that a recommendation cannot and should not be changed upon discovery of new and pertinent information borders on insanity.   We reject it.

 The reunification plan presented by the probation officer was precise, detailed and flexible.   It covered and provided for the eventualities of appellant's continued relationship with Frank Ayala, Sr. and the discontinuance of that relationship.   Appellant was apprised of the specific steps she must take to regain custody of her child.   In view of the overall circumstances of the case, it was as much of a plan as was justified.  (See In re Courtney S., supra, 130 Cal.App.3d 567, 181 Cal.Rptr. 843.)

Disposition

The orders of the trial court are hereby affirmed.

FOOTNOTES

FOOTNOTE.  

1.   There are in fact two appeals, one filed on behalf of Rosemary Rangel and one on behalf of Frank Ayala, Sr.   The notices were originally filed in the First Appellate District.   That court, on December 11, 1984, ordered the matters consolidated.   Thereafter, they were transferred to this court for disposition.

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

3.   Section 300, subdivision (a) provides in 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 and control․”

4.   Section 355 provides:  “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 ․”

5.   This rule of law has been embodied in California Rules of Court, rule 1365(d) which 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.”

6.   Section 281 provides in part:  “The probation officer shall upon order of any court in any matter involving the custody, status, or welfare of a minor ․ make an investigation of the 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.”

7.   In re Amanda I. and Sara M. (1985), 166 Cal.App.3d 248, 212 Cal.Rptr. 317.

FOLEY, Associate Justice *. FN* Under assignment by the Chairperson of the Judicial Council.

PANELLI, P.J., and AGLIANO, J., concur.

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