L.A.
Court
Filed 6/25/12 L.A. v. Superior Court CA4/3
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opinion has not been certified for publication or ordered published for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 THREE
L.A.,
Petitioner,
v.
THE SUPERIOR
COURT OF ORANGE
COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES AGENCY et al.,
Real
Parties in Interest.
G046688
(Super. Ct. Nos. DP014119,
DP014120, DP019327,
DP019328)
O P I
N I O N
Original proceedings;
petition for a writ of mandate to
challenge an order of the Superior Court of Orange County, Jane Shade,
Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Petition denied.
Frank Ospino, Public
Defender, Michael Hill, Assistant Public Defender, Christine Johnson and Dennis
M. Nolan, Deputy Public Defenders, for Petitioner.
No appearance for
Respondent.
Nicholas S. Chrisos, County
Counsel, Karen L. Christensen and
Jeannie Su, Deputy County Counsel, for Real Party in Interest Orange County
Social Services Agency.
Law Office of Harold
LaFlamme and Yana Kennedy for the Minors.
* * *
Petitioner, the mother,
L.A., requests this court issue a peremptory writ of mandate directing the
juvenile court to vacate the orders it made on March 20, 2012, remand the
matter for a retrial of the combined 6-, 12-, and 18-month review, order
(SSA) to supplement its reports, reinstate family reuinifaction services and
vacate the hearing under section Welfare and Institutions Code 366.26 presently
scheduled for July 18, 2012. (All
statutory references are to the Welfare and Institutions Code.)
Petitioner’s argument
that she was denied her due process rights
when she was not permitted to cross-examine a social worker who worked on the case
at an earlier time, and whose notes and observations were included in the
social worker’s reports, fails. Her
other arguments lack merit as well and her petition is denied.
I
FACTS
We filed our
nonpublished opinion (In re J.G.
(June 9, 2011, G044689) in an appeal in this matter wherein we affirmed the
juvenile court’s dispositional order to the extent the oldest of four children,
who was then 11 years old, was placed apart from his three siblings. We stated the following facts in that
opinion:
“Mother has four children: son J.G. (born in 1999); son B.A. (born in
2005); daughter J.A. (born in 2007); and son C.A. (born in 2008). The children have three different fathers,
but for purposes of this case we shall refer to J.H. as ‘father’ because he is the
presumed father of the two youngest children and is involved in the underlying
facts of this dependency action.
“In
January 2010, SSA began investigating allegations of physical abuse reported by
J.G.’s elementary school. In response to
questioning, J.G. claimed father abused him by throwing objects at J.G. (such
as shoes and, on one occasion, a bowl of ice cream). J.G. had 19 bruises on his body; J.G. claimed
14 of the bruises were caused by father.
“All
four of the children were detained and placed in a foster care facility on January
8, 2010. SSA filed a juvenile dependency petition on January
11, 2010. On January 12, 2010, the court approved of the detention of the
children from their parents’ physical custody, and further approved their
placement at a suitable facility or with a suitable foster parent.
“On
January 21, 2010, J.G. was removed from his initial foster facility placement
(separating him from his three siblings).
The foster mother ‘requested the child be removed due to the child inflicting
injury to his four year old brother . . . causing [his brother] to have a
bloody nose, kicking the foster mother; and the foster mother was overwhelmed
with the care and attention the child required.’
“In
a February 1, 2010 interview, B.A. (then four years old) described various physical abuse
suffered by himself and J.G. at the hands of father and mother. B.A. claimed J.G. had threatened to get a
knife and kill B.A. B.A. also said
children at school hit J.G. and made J.G. mad.
“On
February 3, 2010, J.G.’s foster parent reported that J.G. ‘had been suspended from
school for one day for kicking the teacher . . . .’ On March 22, 2010, J.G. swung at an Orangewood staff member
three times, connecting once. On another
occasion at his foster home, J.G. threw a lamp at his foster parent. SSA could not find a foster home willing to
accept J.G. due to his behavioral issues.
“A
July 8, 2010,
psychological evaluation of J.G. included the following assessment: ‘[J.G.]’s impulsivity with respect to outbursts
of aggression and anger appear to be due to confusion about how to respond and
act appropriately. At the age of 11,
[J.G.] has yet to experience a consistent home where he has learned about
appropriate responses to adversity.’
“The
jurisdictional and dispositional hearing was continued on multiple
occasions. The hearing finally proceeded
on October 27, 2010. Mother and father
stipulated to an amended factual basis for the dependency action, and the court
found the
children to be
dependents under Welfare and Institutions Code section 300, subdivision (b).
court released all of the children to mother’s custody under certain
‘C.R.I.S.P.-like conditions.’
Included among the conditions were requirements that father not live
with the family and any visits by father had to be monitored.
“The children were
detained at Orangewood on November 22, 2010. SSA filed an ex parte application
on December 6, 2010, informing the court of an alleged violation of the
condition that father not have unmonitored contact with the children. On the positive side, according to his
therapist in late December 2010, J.G. was ‘doing so much better since he has
been returned to Orangewood . . . . The
child . . . has not displayed any behavior problems.’
“Trial began on December
13, 2010 and continued through January 5, 2011, with regard to dispositional
issues. The court found by clear and
convincing evidence that section 361, subdivision (c)(1),
the physical custody of parents and ordered SSA to provide reunification
services to parents. The court approved
the three younger children’s placement, and approved of J.G.’s temporary placement
at Orangewood (but disapproved of Orangewood as a placement beyond the time
necessary to find a more appropriate placement). The court found SSA adequately explained why
it could not place all four siblings together, despite the importance of
maintaining sibling relationships.â€
Since we filed our last
opinion the juvenile court held a combined 6-, 12-, and 18-month trial. Social worker Brenda Dominguez testified on
January 23, 2012. She was assigned to
the case at the end of October 2011.
Dominguez recommended
the court terminate services. She
testified she did not feel it would be appropriate to return the children to
the mother’s care because of “new allegations of physical abuse that were
brought to the agency’s attention. And
the child has reported—the child [B.A.] has reported that he was physically
abused by the mother. So there are
concerns. And due to the trial visit
being failed because of the alleged physical abuse.†She added there were also “concerns that the
child [J.G.] has been demonstrating behavioral issues for quite some time now,
and the mother’s belief is that there are no behavioral issues with the
children. So that is a concern. [¶] The children do need—specifically, [J.G.]
does need services to assist him with physical aggression. If [J.G.] were to return to the mother, her belief
there are no behavioral issues would be a concern as to how she would handle
things when the child would demonstrate these behaviors.â€
In December 2011,
Dominguez provided the mother with information about where to obtain
testified that the mother informed her she had enrolled in an anger management
program. Prior to that date, the mother
completed parenting education, individual counseling and a personal empowerment
program.
The
mother’s counsel did not cross-examine Dominguez until March 5, 2012, about six
weeks after her direct examination. In
the interim, three of the four children had visitation with the mother in
February. Afterward B.A. made
allegations about the mother squeezing him during the visit. Over the course of time, Dominguez has had
concerns the children are not well behaved and the mother has difficulties
controlling them. On February 15, the
foster mother reported J.G. disclosed he had been hit by his stepfather.
With
regard to SSA reports written by Dominguez, the mother’s counsel unsuccessfully
objected at every opportunity to the admission of the reports into evidence
absent an opportunity to cross-examine a social worker whose notes Dominguez
included in the reports. An investigator
from the public defender’s office testified she tried to serve the other social
worker, Elizabeth Gomez, with a subpoena to appear at trial, but was told Gomez
was on leave. Six SSA reports were
admitted into evidence. They were dated
November 28, 2011, December 13, 2011, December 19, 2011, January 23, 2012,
February 6, 2012 and March 5, 12. The
four we find in the appellate record were all signed by Dominguez and her
supervisor Michael Waterhouse.
When
the court ruled at the end of the trial, it made all its findings by clear and
convincing evidence. The court found
“return of the children would create a substantial risk of detriment to the
safety, protection or physical or emotional well being of the children and . .
. reasonable services have been provided . . . . [¶]
. . . the extent of the progress which has been made
toward alleviating or mitigating the causes necessitating placement by the
mother have been minimal . . . .†The court further found that placement of the
four children together was not appropriate and that SSA made reasonable efforts
to maintain J.G.’s relationships with others.
The court ordered reunification services terminated and set a hearing
under section 366.26.
The
reports contain the following notes:
“the children continue to be physically aggressive with each other and
adults in the homeâ€; B.A. “grabbed his male peer’s private area on a few
occasions at school, and continued to push and fight with other students in
schoolâ€; B.A. yelled to a child at school “I’m going to kill youâ€; when the
social worker observed two one-half inch scratches under both of C.A.’s eyes,
the foster mother explained “the children fight with one another constantlyâ€;
the foster mother reported that B.A. “picked fights constantly with his
siblings and was aggressive toward them and the adults in the home;†and that
C.A. behaves “aggressively.â€
Additionally, at a January 10, 2012 hearing county counsel informed the
court that “noting from some of the past 15-day reviews that the youngest
children in the past have been reported to bite each other.â€
II
DISCUSSION
Petitioner
argues “the testifying social worker’s efforts to verify the contents of
Gomez’s reports do not excuse the due process violation of precluding testimony
from Gomez.†In other words, one social
worker, Dominguez, the one who actually wrote the reports, testified. But social worker Elizabeth Gomez’s
observations and notes from earlier contacts were included in the reports
admitted into evidence. County counsel
argues there is no legal requirement that social workers who prepare reports be
available for cross-examination.
“It
is axiomatic that due process guarantees apply to dependency proceedings. [Citations.]
Parties to such proceedings have a due process right to confront and
cross-examine witnesses, at least at the jurisdictional phase. [Citations.]
The essence of due process is fairness in the procedure employed; a
meaningful hearing, one including the right to confront and cross-examine
witnesses, is an essential aspect of that procedure. [Citation.]
But due process also is a flexible concept, whose application depends on
the circumstances and the balancing of various factors. [Citations.]â€
(Ingrid E. v. Superior Court (1999)
75 Cal.App.4th 751, 756-757.)
A
decision adversely affecting child custody or parental status does not
implicate the same due process rights
afforded an indigent defendant in a criminal matter. (In re
Sade C. (1996) 13 Cal.4th 952, 991-992.)
“[A]t trial, criminal defendants have a general right under the
Fourteenth Amendment’s due process clause to . . . fully confront and
cross-examine witnesses under the Sixth Amendment as made applicable to the
states through the Fourteenth Amendment’s due process clause [citation]
. . . . Parents are not
so benefited.†(Ibid.)
In a noncriminal matter,
any right of confrontation is brought to bear not by the Sixth Amendment, but
by the due process clause of the Fourteenth Amendment. (People
v. Otto (2001) 26 Cal.4th 200, 214.)
A key difference between testimonial hearsay considered under the Sixth
Amendment and the same evidence considered under a due process analysis is that
while such evidence is inadmissible under the Sixth Amendment in a
reliability of the evidence (Crawford v.
Washington (2004) 541 U.S. 36, 61-64), reliable testimonial hearsay
admitted pursuant to the Evidence Code is not categorically inadmissible under
due process. (People v. Angulo (2005) 129 Cal.App.4th 1349, 1367-1368.)
The
California Rules of Court have a rule covering general provisions for all
proceedings. Rule 5.534(k)(1)(B)
states: “(k) Advisement of hearing
rights (§§ 301, 311, 341, 630, 702.5, 827)
parent and guardian in section 300 cases, and the child in section 601 or
section 602 cases, of the following rights:
[¶] (B) The right to confront and cross-examine the persons who prepared
reports or documents submitted to the court by the petitioner and the witnesses
called to testify at the hearing.â€
County
counsel neither argued nor laid a foundation the reports were official, public
or business records, but contended to the juvenile court and to us that “there
was no legal requirement that either Dominguez or Gomez be available for
cross-examination for the reports to be admitted, as this was not the
jurisdictional hearing.†To support its
argument county counsel cites In re
Jeanette V. (1998) 68 Cal.App.4th 811:
“The right to
cross-examination based upon statute and court rule applies only to the
‘Although written reports prepared by a county welfare department are
admissible at a jurisdictional hearing only where the preparer of the report is
available for cross-examination[,] once jurisdiction over a minor has been
established, the admissibility of such reports is no longer conditioned on the
availability of the author for cross-examination [citations].’ [Citation.]
‘The statutes clearly indicate legislative intent to treat the two
phases of dependency proceedings differently.
Under section 355, more stringent evidentiary requirements must be met
at the jurisdictional hearing where the court initially intervenes and obtains
jurisdiction over the child.†(
jurisdictional hearing specifically states:
“The preparer of the social study shall be made available for
cross-examination upon a timely request by any party.†(§ 355, subd. (b)(2).)
841, which was written by another panel of this division: “We are aware of the recently filed opinion
from the Second District, In re Jeanette
V. (1998) 68 Cal.App.4th 811, which holds that parties have a statutory
right to cross-examination only at the jurisdictional hearing. This case confuses the right to
cross-examination, which applies to all hearings, with the admissibility of the
social study reports. At the
jurisdictional hearing, the social study reports are admissible
available for cross-examination. At
subsequent hearings, the reports are admissible without that condition. [Citation.]
The lesser requirement for admissibility of the reports
. . . does not compromise a party’s right to request the
presence of the preparer and cross-examine him or her.†(Id. at
p. 849, fn. 3.)
The
Matthew P. court reversed because the
juvenile court did not permit cross-examination of the social worker who
prepared the reports which were admitted into evidence, stating: “The parties to dependency proceedings have a
due process right, confirmed by court rule, to confront and cross-examine
witnesses.†(In re Matthew P., supra, 71
Cal.App.4th at pp. 845, 849.) However,
there was one significant difference in the factual setting in
worker who prepared the reports in Matthew
P. was new to the case, but the juvenile court would not permit
cross-examination of him about the reports he prepared. (Id. at
pp. 845, 847.) Thus, the analogous
connection would be there if the juvenile court had not permitted
cross-examination of Dominguez, which is not what happened. Dominguez was subjected to lengthy
cross-examination.
Petitioner
cites In re Stacy T. (1997) 52
Cal.App.4th 1415, involving the juvenile court’s denial of a parent’s request
to call the preparers of fact sheets appended to the social worker’s report
which contained “the crucial facts†leading up to removal. (Id.
at pp. 1424-1425.) However, since that
case concerned a settlement conference that transformed into an unnoticed
jurisdictional hearing, it is not helpful to us here.
As
seen in In re Jeanette V.,
contrary to the mother’s argument she was entitled to cross-examine Gomez. Even without that precedent under the overall
circumstances of this case, due process was given to her. She was permitted to cross-examine the social
worker assigned to the case, the person who prepared the reports. She made no offer of proof to demonstrate
what difference she expected the testimony of Gomez might make. She has not shown in her
petition she was prejudiced by
the juvenile court’s ruling. For all
these reasons, petitioner’s argument fails.
Separate Foster Homes
Petitioner
next argues: “The juvenile court erred
when it determined the social worker’s reports established a basis for placing
the children in three separate foster homes.â€
County counsel argues there was no error, and points out that “SSA faces
competing statutory directives regarding placement of siblings.†A juvenile court’s placement decision is
reviewed for abuse of discretion. (
318-319.)
“It is the
intent of the Legislature to maintain the continuity of the family unit, and
ensure the preservation and strengthening of the child’s family ties by
ensuring that when siblings have been removed from their home, either as a
group on one occurrence or individually on separate occurrences, the siblings
will be placed in foster care together, unless it has been determined that
placement together is contrary to the safety or well-being of any sibling. The Legislature recognizes that in order to
ensure the placement of a sibling group in the same foster care placement,
placement resources need to be expanded.â€
(§ 16002, subd. (a).)
“It is further the intent of the Legislature to reaffirm its
commitment to children who are in out-of-home placement to live in the least
restrictive, most familylike setting and to live as close to the child’s family
as possible . . . .â€
(§ 16000, subd. (a).)
“The
status of every dependent child in foster care shall be reviewed periodically
as determined by the court but no less frequently than once every six months,
as calculated from the date of the original dispositional hearing, until the
hearing described in Section 366.26 is completed. The court shall consider the safety of the
child and shall determine all of the following:
[¶] . . . [¶] (D)(i) Whether the child has other siblings
under the court’s jurisdiction, and, if any siblings exist, all of the
following: [¶]
The nature of the relationship between the child and his or her siblings. [¶]
developing or maintaining the sibling relationships pursuant to Section 16002. [¶]
together in the same home, why the siblings are not placed together and what
efforts are being made to place the siblings together, or why those efforts are
not appropriate. [¶]
together, the frequency and nature of the visits between siblings.
The impact of the sibling relationships on the child’s placement and planning
for legal permanence.
[¶] (VI) The continuing need to suspend
sibling interaction, if applicable, pursuant to subdivision (c) of Section
16002. [¶]
The factors the court may consider in making a determination regarding the
nature of the child’s sibling relationships may include, but are not limited
to, whether the siblings were raised together in the same home, whether the
siblings have shared significant common experiences or have existing close and
strong bonds, whether either sibling expresses a desire to visit or live with
his or her sibling, as applicable, and whether ongoing contact is in the
child’s best emotional interests.â€
(§ 366, subd. (a)(1)(D)(i), (ii).)
Without
addressing SSA’s arguments petitioner forfeited this claim by not raising it
earlier, this court has no jurisdiction to consider the issue because it should
have been raised in an appeal which was time-barred by the time this petition
was filed and that this court already ruled on the issue with regard to J.G. in
its June 9, 2011 opinion, we can quickly dispense with it. There is substantial evidence in the record
before us the children presented a danger to each other and that the juvenile
court was concerned about their safety.
Under these circumstances, we cannot find the juvenile court abused its
discretion.
Alleged Discovery
Violation by County Counsel
The
argument in the petition is unclear here.
Apparently, petitioner argued to the trial court that no discovery had
been received concerning an incident involving an injury to B.A.’s hurt “handâ€
when county counsel questioned B.A. about it on February 27, 2012. Later, on March 5, mother’s counsel argued
county counsel was “not neutral†because county counsel had actually received a
report of the incident and had not timely informed mother’s counsel about
it.
In
her petition, mother contends her “due process rights were offended by the
re-opening of SSA’s case following county counsel’s misconduct.†But she does not give us enough information
to follow her reasoning. Because she has
not supported her petition with sufficient argument on this point, we deem it
to be waived. (Cal. Rules of Court, rule
8.486(b).)
Section 366.1
Petitioner’s last argument is:
“The social worker and the juvenile court failed to identify persons
important to [J.G.] as required by statute.â€
County counsel contends Dominguez’s reports “discussed individuals who
were important to [J.G.], including Mother and his siblings.â€
“Each
supplemental report required to be filed pursuant to Section 366 shall include,
but not be limited to, a factual discussion of each of the following subjects: [¶] . . . [¶] (g) Whether a
child who is 10 years of age or older and who has been in an out-of-home
placement for six months or longer has relationships with individuals other
than the child’s siblings that are important to the child, consistent with the
child’s best interests, and actions taken to maintain those relationships. The social worker shall ask every child who
is 10 years of age or older and who has been in an out-of-home placement for
six months or longer to identify any individuals other than the child’s
siblings who are important to the child, consistent with the child’s best
interest. The social worker may ask any
other child to provide that information, as appropriate.†(§ 366.1, subd. (g).)
Dominguez’s
reports contain statements about how the children are excited to see the
mother, and how well the visits between the mother and J.G., specifically,
went. Court-appointed special advocates’
reports state J.G. “has expressed his desire to be reunited with his familyâ€
and “[J.G.] and his mother are very close.
[J.G.] misses his mother, and they show mutual love and respect for each
other.â€
It is
clear from Dominguez’s reports that his mother is a very important person to
him. We find no error.
III
DISPOSITION
The
petition is denied.
MOORE,
ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
and Institutions Code.
Intensive Supervision.
