D.T. v. Superior Court

Filed 8/31/09 D.T. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for writ of mandate. Marsha Slough, Judge. Petition denied.

Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real Party in Interest.

Law Offices of Burcham & Stern and Robin D. Edmond for Minors.

Petitioner D.T. (Father) filed a petition for writ of mandate pursuant to California Rules of Court, rule 8.452, challenging the juvenile courts order denying him reunification services as to his seven-year-old son, B.T., and two-year-old daughter, G.T., and setting a Welfare and Institutions Code section 366.26 hearing.^[1] Father contends the juvenile court erred when it found it would not be in the childrens best interest to offer him reunification services. He also contends that he was denied due process of law when the court refused Father a meaningful opportunity to cross-examine the mother at trial. For the reasons explained below, we reject these contentions and deny the petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

The children came to the attention of the San Bernardino County Children and Family Services (CFS)^[2]in May 2008, after it was reported that police were investigating the suspicious death of the childrens sibling, A.T. It was reported that the child, who was four years old, had died due to dehydration and malnourishment and that the childs mother (Mother) failed to seek medical attention. The childs life might have been saved had Mother sought medical attention. An autopsy later revealed the cause of death as [d]iabetic ketoascidosis, days, due to insulin-dependent diabetes mellitus, months. The contributing causes of death were severe malnutrition and possible autism.

Mother gave conflicting stories as to her seeking medical assistance for the child and appeared to have mental health issues. Mother failed to call 911 for over an hour after the initial time she believed her son had died. Father was not in the home; he was working in the Los Angeles area the week prior to A.T.s death. Father last saw A.T. alive on May 11, 2008, before he left for work. At that time, Father claimed, A.T. appeared fine. Around 12:00 a.m. on May 13, 2008, Mother had called Father and told him to immediately come home, without stating why. Father arrived home around 2:30 a.m. and was greeted by Mother at the front door. As he was entering the house and headed toward the bathroom, he noticed A.T. and knew his son was dead. At that point, he walked outside and was overcome with dry heaves. Father told Mother to call 911, but Mother stated that she wasnt ready for them to take her son away. When asked why he did not call 911, Father stated that he wanted to be on Mothers side and show her that he was there to comfort her. Father had prior knowledge that Mother had neglected the medical care of A.T., and he had failed to notice his child was extremely thin and emaciated before leaving for work.

Mother claimed there was ongoing domestic violence in the home and that she had sustained bruises from Father. In February 2008, Mother had filed a request for Order Domestic Violence Prevention. Father reluctantly acknowledged there was domestic violence in the home. Mother also reported that she felt isolated and overwhelmed with taking care of three children on her own. She stated that Father was hardly ever in the home. Mother had ongoing mental health issues that required immediate attention. Father knew Mother had mental health issues but still allowed the children to remain unsupervised in Mothers care.

A.T.s older brother, B.T., had witnessed the parents engage in domestic violence. B.T. also described how A.T. did not play much, but instead spent a lot of time on the couch sleeping, and he reported that A.T. had breathed funny, breathing in short quick gasping breaths with his tongue hanging out of his mouth sideways.

The family had prior CFS referrals in January and March 2006, which were found to be unfounded.

CFS initially determined that the children could remain in the home in the care of Father. However, Father later called a detective wanting to know when he would be able to return to work and that he was unable to remain indefinitely in the home as previously agreed. It was also reported that the deceased child had virtually no body fat at the time of his death. The parents ability to care for the surviving children was, therefore, believed to be questionable. Following an examination and interview of the family, Dr. Amy Young opined there was great concern for the safety of the children in the parents home and that both parents required psychiatric evaluations. B.T. and G.T. were taken into protective custody on May 16, 2008.

CFS was ordered to provide services to the parents pending the development of the case plan. On June 14, 2008, Father told the social worker that he was currently participating in therapy and on-line parenting classes. The parents had also been participating in visits.

An original section 300 petition on behalf of the children was filed on May 20, 2008. Subsequently, an amended, and later, second, third, and fourth amended petitions pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (f) (caused another childs death through abuse or neglect), (g) (no provision for support), and (j) (abuse of sibling) were filed on behalf of the children on May 29, June 9, August 1, and October 24, 2008, respectively.

In a jurisdictional/dispositional report dated June 11, 2008, the social worker recommended that no reunification services be offered to the parents pursuant to section 361.5, subdivision (b)(4), (6), and (7). In addendum reports, the same social worker continued to recommend that no services be offered to the parents.

On June 25, 2008, Father faxed 16 support letters to the social worker regarding Fathers integrity and his devotion and dedication to his children, including one from the maternal grandfather. Except for the letter from the maternal grandfather, the letters were from work associates who had described Fathers ability to perform his job well and how frequently Father spoke of his children, but none of the 15 had personally seen Father with his children.

On September 15, 2008, Father filed a motion to remove the social worker from the case for bias and prejudice. Besides claiming the social worker had demonstrated extreme bias and prejudice, Father asserted that the social worker had refused to provide him with a referral for a therapist and parenting classes, was less than adequate in managing the visitations, and had failed to adequately investigate the case. CFS subsequently filed an opposition.^[3]

The foster mother reported that the children had been struggling while in placement. The children were initially afraid of water and had banged their heads against the wall in fear of the water, climbing out of the tub screaming to the top of their lungs. G.T. had improved and was becoming cooperative. B.T., however, continued to have behavioral problems, including destruction of the foster parents possessions. B.T. also had problems at school and was being assessed for special education. B.T. was receiving counseling for his issues. The maternal grandparents had expressed a desire to have an ongoing relationship with the children but were not interested in adopting them.

In September 2008, Father asked the social worker and CFS to reconsider offering him services. On October 9, 2008, the social worker met with Father to discuss this issue. Father reported that he had begun his parenting classes and was sorry for not starting earlier, choosing instead to use on-line services. Father also reported that he had attended 14 sessions with a private therapist; however, Father did not provide any information that would allow CFS to contact the therapist. The social worker opined that even though Father had verbalized his intent to be cooperative with CFS, he had continued to be evasive as to his services.

On October 23, 2008, CFS filed its trial brief and opposition to Fathers motion to strike Mothers statements at trial.^[4]

The contested jurisdictional hearing was held on October 27, 2008. Both Mother and Father were present in court. Father waived his constitutional rights at that time, and the court found the allegations in the fourth amended petition true as amended. The children were maintained in their confidential foster home. Father was ordered to undergo a psychological evaluation. Supervised visitation between the parents and the children continued. The matter was thereafter continued to December 8, 2008.

Around November 28, 2008, Father supplied CFS with reports from his parenting program and individual therapy. He had been attending individual therapy since May 2008 and had completed 15 sessions. His therapist reported that he had no psychopathology; that he was a healthy adult, psychologically and emotionally; and that he will be an excellent parent to his two children.

The court-ordered psychological evaluation of Father was completed by Kenneth L. Meyer, Ph.D., on January 8, 2009. Following an examination of Father, Dr. Meyer opined that Father could benefit from psychotherapy with a licensed mental health professional regarding his passive and dependent personality issues. Dr. Meyer also concluded that services should be provided to Father and that Father would benefit from services, noting that he felt very strongly that there was no reason [Father] should not be allowed the opportunity to parent his children. Among other information, Dr. Meyers report noted Mothers controlling behavior toward Father, how Father had ceased his relationship with Mother following the death of their child, and how Father had exhibited dependent personality disorder.

Additionally, Father had completed 25 sessions of individual therapy and 15 sessions of a parental education and prevention program. Staff at Fathers parental program reported that her agency had family preservation classes that could be offered to the family if the children were placed with Father. These services would include a therapist going out to the home once a week and working with the family and continued parenting for Father. Father had also been consistently visiting with his children with no concerns, and a newly assigned social worker was in the process of transitioning them to unsupervised visitation for two hours at a time. Father was gainfully employed and residing in an apartment in Santa Monica.

Based on Father having taken the initiative, his cooperation with CFS, his bond with his children, and the positive court-ordered psychological evaluation, CFS and the social worker recommended that Father be offered services and that the case be transferred to Los Angeles County.

Meanwhile, on January 6, 2009, CFS received a referral stating that B.T. often came home from school to an empty foster home and that he went from neighbor to neighbor to see if someone would let him in. It was further reported that the foster home was a mess. An investigation revealed that the foster mother, Debbie P., had allowed the children to be supervised by a former foster parent who had recently had her license revoked; that Debbie had told B.T. he would never live with his mother again; that the home was messy and cluttered, with a foul odor from the animals in the home; that B.T. was sleeping in an unsafe loft area, which had no railing or protection to prevent a small child from falling straight down; and that Debbie had denied B.T. a visit with his father as a form of punishment. Debbie denied the allegations and claimed that B.T. had always misbehaved when he had a visit.

Father also had concerns about the foster home and reported that B.T. had called him to notify him that B.T. was babysitting his little sister. Father also reported that Debbie had told the children to call her mom and that B.T. had told him that what happens at Debbies stays at Debbies. Debbie had received a sanction from CFS for her noncompliance with the rules and regulations. She had also been given [a] strong warning about the violation of [B.T.s] personal rights and about sabotaging the service plan.

The contested dispositional hearing was held on March 10 and 12, 2009. At that hearing, the juvenile court considered and admitted into evidence the relevant reports and also heard testimony from the social worker, Dr. Meyer, Father, Margaret Evanow (an investigator for minors), the maternal grandparents, and Mother. In pertinent part, the social worker testified that CFS was recommending services to Father and that it would be in the childrens best interest to offer services to Father. She also stated that Father would benefit from services and that the children had a positive bond with Father. She explained that Father had benefitted from the services he had received thus far and was willing to continue any services that may be recommended by the court or any therapist. She noted that B.T. genuinely loves his father and enjoys spending time with his father and that Father appeared to have a positive influence over B.T. She gave an example about a classmate who had been bothering B.T. She also asserted that the children were excited to see Father and that the children and Father had exhibited mutual affection for each other. Indeed, she opined that it would be detrimental for the court to terminate the childrens contact with Father. In addition, she stated that she had never received any negative report from Fathers parenting program or from his therapist and that he had been cooperative with CFS. She further noted that the children had been moved from Debbies home due to her failure to comply with CFS rules.

Dr. Meyer testified that Father did not suffer from any psychological dysfunction or disorders but was slightly elevated into the critical range on the dependent personality. Dr. Meyer had no concerns that Father would ever place his children in a position where their health, safety or welfare would be in danger, based on Father being a person professionals had noted was interested in improving himself, improving his parenting, learning the skills that are necessary. Dr. Meyer explained that Father had taken responsibility for his role in his childs death, noting [t]he responsibility he took was an understanding that he should have not been so reliant on his partner for making decisions, but that he should have stepped in and taken some charge here and made other decisions. Dr. Meyer believed that Father had learned his lesson and that the children would not be in danger. Father had tellingly expressed his desire to maintain full custody of the children and obtain a restraining order to keep Mother away from the children and him. In conclusion, Dr. Meyer opined Father would benefit from services.

In summary, Father testified as to what services he had been receiving, how those services had been beneficial to him, how Mother was controlling and would not allow him to see his children at times, how he took responsibility for A.T.s death, how he could have done more, the bond between him and the surviving children, and why he should receive services. The cross-examination of Father by minors counsel focused on the circumstances of A.T.s death and why Father had not been more active in preventing the childs death. Father claimed that he was under a tremendous amount of stress, his life was chaotic, and Mother would not allow him to come home during that time. Father repeatedly acknowledged that he should have been more aware of A.T.s medical condition and that a reasonable parent would have taken him to the hospital.

Investigator Evanow testified that she had witnessed a visit between Father and his children, and that the visit was appropriate. Father had appropriately engaged in playful activities with G.T. and B.T.

The maternal grandparents both testified that Father should receive services; that reunification services are in the best interest of the children; that Father is a loving parent; and that there was a loving bond between Father and his children. The maternal grandmother also stated Mother was controlling and would not allow Father to see his children.

Following arguments from counsel,^[5]the juvenile court denied services to Father and Mother pursuant to section 361.5, subdivision (b)(4). The children were declared dependents of the court and a section 366.26 hearing was set. The court found clear and convincing evidence that the parents had caused the death of another child through abuse or neglect.

II

DISCUSSION

A. Denial of Reunification Services

Father contends that the juvenile court erred by denying him reunification services. We disagree.

As a general rule, when a child is removed from a parents custody, the juvenile court must order reunification services. ( 361.5, subd. (a).) However, there is an exception to this rule if the court finds, by clear and convincing evidence, that any one of the 15 situations set forth in section 361.5, subdivision (b), exists. That subdivision reads in pertinent part: (b) Reunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [] . . . [] (4) That the parent . . . of the child has caused the death of another child through abuse or neglect.

Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) One appellate court has noted that when a parent causes the death of a child, the situation is simply too shocking to ignore in considering whether that parent should be offered reunification services with respect to a surviving child. (In re Alexis M. (1997) 54 Cal.App.4th 848, 850-851.) The fact of a death and a subsequent petition . . . arising out of that death simply obliterates almost any possibility of reunification. (Id. at p. 851, fn. 2.)

Subdivision (b)(4) of section 361.5 evidences the Legislatures recognition that some situations are so extreme as to require extraordinary caution in recognizing and giving weight to the usually desirable objective of family preservation. (In re Ethan N. (2004) 122 Cal.App.4th 55, 65 (Ethan N.).) Thus, when a juvenile court finds a basis for denying reunification services under section 361.5, subdivision (b)(4), it is prohibited from ordering reunification services unless it finds by clear and convincing evidence that reunification would serve the childs best interest. ( 361.5, subd. (c).)

The parent responsible for the previous death of another child bears the burden of affirmatively showing at the dispositional hearing that reunification would be in the best interest of the surviving child. (Ethan N., at p. 66.) On appeal, we review a juvenile courts decision as to a childs best interest for an abuse of discretion. (Id. at pp. 64-65.)

In Ethan N. the appellate court noted the enormity of the parents burden to establish best interest where that parent was responsible for the death of another child and observed that a successful showing would be rare. However, the court noted that a finding under section 361.5, subdivision (b)(4) could be overcome and suggested the following factors as most determinative of a childs best interest: the gravity of the problem necessitating dependency; the parent/child bond; and, most importantly, the childs need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-69.)

In examining the juvenile courts reasoning in denying services to Father, it appears the juvenile court here found Father had caused A.T.s death by neglect because Father stayed in a chronically chaotic relationship with Mother and was aware of Mothers pattern of abuse and did not take steps to protect the child. The court also pointed out how Father always let Mother win, how Father kept knocking on the door coming back to Mother, and how Father and Mother sought out resources and schooling for their normal son, B.T., while not affording the same opportunity to their developmentally challenged son, A.T. There is no doubt here that the gravity of the problem that led to the surviving childrens dependency could hardly be higher.

In Ethan N., the court found the mothers active participation or neglect caused the infants death and on that basis denied her reunification services. (Ethan N., supra, 122 Cal.App.4th at p. 62.) The victim was a 39-day-old infant who died as a result of a golf ball-sized wad of paper lodged deep in his esophagus. (Id. at p. 61.) The infant also suffered severe injuries to his rectum and anus, 12 broken ribs in various stages of healing, injuries to his face, and other wounds. Such injuries would have been obvious. The mother did not seek medical care for her infant. (Ibid.)

In Patricia O. v. Superior Court (1999) 69 Cal.App.4th 933 (Patricia O.), the court found the mothers failure to protect the baby rose to the level of criminal neglect. (Id. at pp. 940, 942.) The mothers boyfriend physically abused her baby, inflicting chronic injuries that would have caused obvious pain and symptoms. (Id. at pp. 938-939.) The babys injuries included a four-to-six-week-old spinal fracture, a mature healing fracture of the right humerus, another injury to the humerus approximately one to three weeks old, and other injuries and bruises of varying ages. (Id. at pp. 936, 938.) The conclusion the mother knew the abuse was ongoing and permitted it to continue was supported by the nature of the injuries to the baby, who was in his mothers care, and because the mother saw her boyfriend hit one of her children and was informed of his abuse a 1000 times. (Id. at p. 937.)

Here, at the contested dispositional hearing, Father stated that in retrospect a reasonable parent should have noticed A.T. needed medical attention based on the childs emaciation. However, Father explained that he did not notice or recognize his son was emaciated. He also stated that he did not know how to identify dehydration and that he was not aware of A.T.s excessive thirst or urinating until after A.T.s death, when Mother told him. Father also clarified that his life was in a constant state of chaos with very limited access to his children. The forensic pediatrician, Dr. Young, opined that [i]t is disturbing to think of what adults may have had contact with [A.T.] and not have noticed his poor health. He also stated, While an underlying medical condition seems to have played a part, there is an issue of medical neglect. Hence, the evidence suggests that a reasonable parent should have been aware of A.T.s malnutrition prior to his death. Though all of Fathers witnesses at the contested jurisdictional hearing gave favorable reports and recommended reunification services, there is no doubt Fathers omission was negligent, and his parenting history, knowing Mother was mentally disturbed, is dismal. Father chose to take a submissive position to all of Mothers aggressive and dangerous behavior. The history between the parents shows that Fathers coping mechanisms in these circumstances was to turn a blind eye and remove himself from the situation to the detriment of the children.

A.T.s death is no less shocking than the childrens deaths in Ethan N. and Patricia O. The medical neglect leading to A.T.s death will not be ignored by the courts. It is difficult to imagine any problem more grave than the previous death of another child caused by abuse or neglect. (In re Ethan N., supra, 122 Cal.App.4th at p. 66.) The culpability of Mother is being addressed in criminal proceedings.^[6]

Under these sad circumstances, we find that denying services to Father would be in the childrens best interest. Even though there is evidence in the record to suggest that the surviving children and Father had a relatively strong bond and that the visits between them were appropriate, there was no evidence of any visits where Father took on major parenting activities. There was no evidence that Father had ever parented the children on his own or for any significant period of time. In fact, the social worker testified that there had not been any observations of Father actually taking on a parental role with the children because all the visits were in social settings, and in the past Father had removed himself from the parenting role, which he had left to Mother. Additionally, there was evidence in the record to suggest that during visits Father had relied on others to help supervise the children.

Aside from the fact that Father had regularly attended visitation with his children and that the children loved him and wished to spend time with him, Father has not demonstrated by clear and convincing evidence that it would be in the childrens best interests to offer him reunification services. Father had consistently minimized his role in the death of A.T. and, after almost a year following the detention hearing, still had not confronted the issues leading to the dependency. The childrens need for stability and continuity also supports a finding that Father should not be offered reunification services. Though the record reveals that the children had no relative placement options and the first foster mother was inappropriate, the children appeared to be comfortable and thriving in their current foster home. B.T. is currently seven years old and G.T. is almost three years old. Their need for stability and continuity is paramount.

We agree with the juvenile court that this was a difficult case. However, after a thorough review of the record on appeal, we cannot conclude the juvenile court erred in denying reunification services to Father. The juvenile court had meticulously reviewed the case, and its statement of reasons were accurate.

[R]eunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. (In re Baby Boy H., supra, 63 Cal.App.4th at p. 478.) Given the circumstances here, this is a case where it would be fruitless to provide reunification services. (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.) In this case, we do believe that offering services would be an unwise use of governmental resources. (Baby Boy H.,at p. 478.)

Section 361.5, subdivision (c) prohibits the court from ordering reunification for a parent who, like [Father], falls within one of the enumerated exceptions of subdivision (b), unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1123; see also Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 107.) In other words, the court may still order reunification services be provided if the court finds, by clear and convincing evidence, that reunification is in the best interests of the child. [Citation.] [Citation.] (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 745.) The burden of affirmatively demonstrating that reunification is in the best interests of the children is upon the parent. (Ethan N., supra, 122 Cal.App.4th at p. 66.) As set out above, we find that the record reveals Father has not met his burden. Accordingly, we find that the juvenile court did not abuse its discretion in denying services to Father.

B. Cross-Examination of Mother

At the contested dispositional hearing, Mother was called as a witness by County Counsel on behalf of CFS. Prior to questioning, the court advised Mother of her Fifth Amendment rights. Direct examination of Mother was very brief and limited in scope, relating solely to Mothers recollection of the last time she knew Father had changed A.T.s diaper prior to the childs death in May 2008.

On cross-examination, counsel for Father sought to attack Mothers credibility and show her motives to lie by questioning her about the prior unsubstantiated allegations of abuse she made against Father. The juvenile court sustained appropriate objections and overruled Fathers objection to Mother invoking her Fifth Amendment right. Fathers motion to strike all of Mothers testimony on the basis that it had prevented Father from having a meaningful opportunity to cross-examine the witness was also denied. In addition, the court sustained Mothers objection to questioning outside of the scope of direct examination and allowed Mother to invoke her Fifth Amendment right. In this regard, Fathers Fourteenth and Sixth Amendment right objections to Mothers assertion of her Fifth Amendment right were overruled. The juvenile court explained that Fathers presentation of his case was not significantly impacted and the issues being questioned were collateral.

Father contends that he was denied due process of law when the juvenile court refused Father a meaningful opportunity to cross-examine Mother at the dispositional hearing related to her prior statements after she asserted her Fifth Amendment right. We reject this contention.

Initially, we note that Father, though he had an opportunity to do so, did not call Mother as a witness. Instead, Father agreed to the admission of all reports and documents at the contested disposition with the exception of his objection to reports by the former social worker. Many of the other reports and documents, including police reports, were replete with Mothers statements.

Second, it is important from the outset to recognize that juvenile dependency hearings are special proceedings. These proceedings are distinct from criminal proceedings and are exempt from the constitutional constraints that apply in criminal cases. Dependency is civil in nature and focuses on the protection of the child, not the guilt of the criminal defendant. (In re Carmen O. (1994) 28 Cal.App.4th 908, 922, fn. 7.)

Criminal defendants and parents are not similarly situated. By definition, criminal defendants face punishment. Parents do not. [Citation.] Criminal defendants, as such, are expressly given protection in the United States Constitution itself. [Citation.] Parents are not. (In re Sade C. (1996) 13 Cal.4th 952, 991.)

Among the constitutional protections afforded solely to criminal defendants is the right to confront adverse witnesses. The Sixth Amendments confrontation clause provides, In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . . The Sixth Amendment right to confrontation does not extend to parents in a juvenile dependency procedure. (In re April C. (2005) 131 Cal.App.4th 599, 602.)

That is not to say, however, that parents in a dependency proceeding do not have constitutional rights and protections. The rights to due process and fundamental fairness embodied by the Fourteenth Amendment most definitely apply to dependency proceedings. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307 [The dependency scheme, when viewed as a whole, provides the parent due process and fundamental fairness while also accommodating the childs right to stability and permanency.].)

The essence of due process in the statutory dependency scheme is fairness in the procedure employed by the state to adjudicate a parents rights. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 412.) The due process attributes of a dependency hearing include proper notice of the hearing and the right to present evidence and cross-examine adversarial witnesses â€‘‑ that is, the right to be heard in a meaningful manner. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851; Crystal J., at pp. 412-413; see also In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16.) However, the due process guarantee of a meaningful opportunity to cross-examine is not synonymous with full-fledged cross-examination rights. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.)

Assuming, without deciding, that Father was denied his due process right, we are convinced beyond a reasonable doubt that any error was harmless in this case. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) Father complains that cross-examination of Mother was not a collateral issue but related to her credibility and bias. However, the court found Mothers testimony to be incredible. The court stated, Quite frankly, I dont believe [M]others testimony about the time of what she claims that [F]ather last changed [A.T.s] diaper. Accordingly, allowing Father to cross-examine Mother would not have aided Father. The juvenile court had before it numerous reports and documents concerning this case, including Mothers statements to police. Hence, cross-examining Mother in an attempt to discredit her credibility would have been to no avail to Father.

III

DISPOSITION

The petition is denied. The order staying the section 366.26 hearing is lifted.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

I concur:

MILLER

J.

GAUT, J., Dissenting:

I respectfully dissent. The evidence is clear that A.T. did not receive the care that his mother, and to a lesser extent his father, should have given him. The death of A.T. appears finally to make father recognize his responsibilities to his children. Like many other fathers he apparently worked away from the home, living in an apartment in Los Angeles, and was seldom available to take care of the children, particularly with the needs of A.T. In addition, there was domestic violence between the parents in the home.

The children were placed in protective custody after A.T.s death and the social worker recommended no reunification services. In May, father began a parenting program and individual therapy, apparently becoming aware, finally, of his obligations toward the children. The therapist concluded that father would be an excellent parent to his children. The court-ordered psychologist also concluded that father should be given the opportunity to parent his children, particularly since he had terminated his relationship with his wife. Father completed sessions of individual therapy and parental education and prevention programs. He visited with his children regularly.

San Bernardino County Children and Family Services (CFS) recommended father be offered services and the case be transferred to Los Angeles. The social worker testified that father benefitted from the services he received and that the children and father exhibited mutual affection for each other. That court-ordered psychologist, Dr. Meyer, testified that father had taken responsibility for his role in the death of A.T. The maternal grandparents testified that father should receive services, that reunification services were in the best interest of the children, and that father had a loving bond with the children.

The trial court denied father services based upon its finding that mother and father caused the death of A.T.

While the death of A.T. cannot be ignored, the evidence indicates that father acknowledged his failure to personally take the kind of care A.T. needs, but that he had acknowledged his error and undertook services to remedy his failure with the remaining children. Father and the children had mutual affection for each other and the respective grandparents indicated that the bond between father and the children was strong.

I believe that the best interests of the children requires father being granted reunification services. He has taken substantial steps to care for the children and to remedy his failures as a father. With the exception of the trial court, all relevant parties support such a decision.

s/Gaut

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

^[2] Formerly the San Bernardino County Department of Childrens Services.

^[3] The motion was never ruled on as that social worker was no longer employed with CFS. At the contested dispositional hearing on March 10, 2009, the juvenile court overruled Fathers objection to consider or admit that social workers reports into evidence.

^[4] Mother was arrested and charged with child endangerment (Pen. Code,  273a) in October 2008.

^[5] Minors counsel objected to CFSs recommendation to providing services to Father.

^[6] The prosecutor did not file any criminal charges against Father.