Date: 02-16-2018

Case Style: J.H. v. The Superior Court of San Luis Obispo County, San Luis Obispo County Department of Social Service, Real Party in Interest

Case Number: B284802

Judge: Tangeman

Court: California Court of Appeals Second Appellate District Division Six on appeal from the Superior Court, San Luis Obispo County

Plaintiff's Attorney: Jennifer Fehlman

Defendant's Attorney: Meredeth Elise Ruston

Description: In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez),
our Supreme Court clarified the test for admitting expert opinion
testimony. Although Sanchez was a criminal case, its limitations
extend beyond the scope of criminal law: to proceedings under
the Sexually Violent Predator Act (People v. Burroughs (2016) 6
Cal.App.5th 378), to conservatorship proceedings
2
(Conservatorship of K.W. (2017) 13 Cal.App.5th 1274), to the
commitment of mentally disordered offenders (People v. Bona
(2017) 15 Cal.App.5th 511 (Bona)), and to public nuisance actions
(People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th
51). Here, we hold that Sanchez’s limitations do not render social
service reports inadmissible in status review hearings held
pursuant to the Welfare and Institutions Code.1
J.H. petitions for extraordinary writ review of the
juvenile court’s order terminating reunification services and
setting the matter for a permanency plan hearing. (§ 366.26,
subd. (l)(1).) He contends the court erred when it considered a
social services report in the absence of its primary author, and
thus prevented his cross-examination of her at the 12-month
status review hearing. We deny the petition.
FACTUAL AND PROCEDURAL HISTORY
The San Luis Obispo County Department of Social
Services (DSS) detained J.H.’s two daughters, R.H. and N.H.,
because their stepmother abused them. At the conclusion of the
jurisdiction and disposition hearing, the juvenile court took
custody of R.H. and N.H., ordered reunification services for J.H.,
and recommended anger management classes and therapy. The
court commented that it had “never seen anybody more angry in
the courtroom” than J.H.
The three-month report detailed domestic violence
between J.H. and his wife, recounted, in part, by R.H. J.H. said
R.H. was lying about the violence in the home. He also said he
was “not interested in cooperating with DSS.”

1 All further statutory references are to the Welfare and
Institutions Code.
3
J.H. exercised visitation during the subsequent
review period, but made minimal progress toward the goals
outlined in his case plan. His behavior was “unpredictable” and
he was often angry and aggressive toward DSS staff.
The six-month report initially recommended
terminating reunification services because J.H. refused to
cooperate with DSS and had little insight into the reasons
underlying the dependency proceedings. But because he
complied with his case plan, a revised report recommended
continuing services for another six months. The juvenile court
agreed. The new case plan required J.H. to address his anger
issues and to act appropriately with DSS staff.
The 12-month report recommended terminating
reunification services. J.H. had minimal compliance with his
case plan. His visitation attendance declined. His volatile
behavior continued. He realized little benefit from the services
provided.
Nine days before the review hearing, DSS informed
J.H. that the author of the 12-month report, Karen Talbert,
would not be available to testify because she no longer worked
with DSS. Her former supervisor, Lori Spire, would be available
instead. At a pretrial proceeding the day before the hearing,
J.H.’s attorney said she had not subpoenaed Talbert. She
nevertheless requested Talbert’s presence in court.
J.H. was openly hostile during the review hearing.
He denied the behavior and statements attributed to him. He
admitted he was provoked whenever DSS staff members spoke.
He said he did not know what improvements, if any, he had made
in his interactions with DSS.
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When DSS called Spire to testify, J.H. objected, citing
Sanchez. The juvenile court ruled that Spire could testify
pursuant to the Welfare and Institutions Code and the California
Rules of Court. It concluded that Sanchez was inapplicable at the
hearing.
Spire testified she authored portions of Talbert’s
report. She spoke with J.H.’s therapists, reviewed visitation logs,
and discussed the case with Talbert and other social workers.
She personally observed two of J.H.’s visits with his daughters.
Spire opined there was not a substantial probability
that R.H. and N.H. would be returned to J.H. within the next six
months and that the girls ran a substantial risk of detriment if
returned to him. She said counselors told her they did not believe
they could help J.H. further with domestic violence issues.
A family therapist testified she did not see evidence
of domestic violence between J.H. and his wife. She said J.H.’s
visits with his daughters went well. She recommended
unsupervised visits for J.H. and continued reunification services.
Another therapist concurred.
The juvenile court determined that there was not a
substantial probability R.H. and N.H. would be returned to J.H.
within the next six months and that there was a substantial risk
of detriment to the girls if returned to J.H.’s care. It referred to
J.H.’s history of domestic violence, aggression toward DSS
workers, and significant levels of depression and anxiety. He was
disrespectful in court, and failed to meet the objectives in his case
plan. The court terminated reunification services and set the
matter for a permanency plan hearing.
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DISCUSSION
Termination of reunification services
J.H. contends the juvenile court erred when it found
there was not a substantial probability his daughters would be
returned to him within the next six months and terminated
reunification services. We disagree.
At the conclusion of a 12-month review hearing, the
juvenile court shall continue the case for up to six months if there
is a “substantial probability” a child will be returned to a parent’s
custody. (§ 366.21, subd. (g)(1).) A “substantial probability” of
reunification requires the court to find that the parent: regularly
contacted and visited the child; “made significant progress in
resolving problems that led to the child’s removal from the
home”; and “demonstrated the capacity and ability both to
complete the objectives of [the] treatment plan and to provide for
the child’s safety, protection, physical and emotional well-being,
and special needs.” (Ibid.) We uphold the court’s findings if
supported by substantial evidence. (James B. v. Superior Court
(1995) 35 Cal.App.4th 1014, 1020.) We resolve all conflicts in
favor of the court’s determinations, and indulge all legitimate
inferences to uphold its findings. (In re Kristin H. (1996) 46
Cal.App.4th 1635, 1649.)
Substantial evidence supports the juvenile court’s
findings that J.H. neither made significant progress in resolving
the problems that led to his daughters’ removal from the home
nor demonstrated his capacity to complete the objectives of the
case plan. His compliance with the case plan was minimal. He
was hostile toward DSS workers and did not intend to continue to
work with them. He had a history of domestic violence, but
denied that he needed therapy to address these issues. These
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factors support the court’s decision to terminate reunification
services. (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483-1484
[minimal progress toward addressing anger issues]; Fabian L. v.
Superior Court (2013) 214 Cal.App.4th 1018, 1029-1030 [failure
to address domestic violence issues]; In re Alanna A. (2005) 135
Cal.App.4th 555, 566 [marginal participation in reunification
services]; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758,
763-764 [failure to attend therapy, lack of insight, and denial of
problems].)
Right to cross-examination
J.H. contends the juvenile court violated his due
process right to cross-examine witnesses when it considered the
report Talbert authored without permitting him to cross-examine
her. We again disagree.
A parent in a dependency proceeding has a due
process right to confront and cross-examine witnesses. (In re
Josiah S. (2002) 102 Cal.App.4th 403, 412.) But due process does
not require “full-fledged cross-examination.” (In re Jeanette V.
(1998) 68 Cal.App.4th 811, 817.) Rather, all that is required is
“‘“‘that the procedure adopted comport with fundamental
principles of fairness and decency.’”’” (Bona, supra, 15
Cal.App.5th at p. 520 [standard in civil proceedings].) Due
process is a flexible concept that weighs “any possible hardship to
the parent [against] the state’s legitimate interest in providing an
expedited proceeding to resolve the child’s status without further
delay.” (In re Malinda S. (1990) 51 Cal.3d 368, 384, superseded
by statute on another ground as stated in People v. Otto (2001) 26
Cal.4th 200, 207.) We review for abuse of discretion the juvenile
court’s decision to permit Spire to testify in lieu of Talbert. (In re
Josiah S., at p. 412.)
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There was no abuse of discretion. Section 281
permits the juvenile court to “receive and consider social service
reports in determining ‘any matter involving the custody, status,
or welfare of a minor.’” (In re Keyonie R. (1996) 42 Cal.App.4th
1569, 1572, italics omitted.) At the 12-month review hearing, the
court “shall review and consider” those reports. (§ 366.21, subd.
(f)(1)(C).) The reports are admissible regardless of whether the
authors are available for cross-examination. (§ 358, subd. (b)(1);
see In re Vincent G. (2008) 162 Cal.App.4th 238, 243-244 [“‘we see
no reason to construe section 358, subdivision (b) to require the
preparer to testify as a prerequisite to admitting the report’”]; In
re Jeanette V., supra, 68 Cal.App.4th at p. 816 [“The right to
cross-examination based upon statute and court rule applies only
to the jurisdictional hearing”]; Andrea L. v. Superior Court (1998)
64 Cal.App.4th 1377, 1387, fn. 3 [“once jurisdiction over a minor
has been established, the admissibility of such reports is no
longer conditioned on the availability of the author for crossexamination”].)

The juvenile court’s consideration of Talbert’s report
did not violate J.H.’s due process rights. “In juvenile dependency
litigation, due process focuses on the right to notice and the right
to be heard.” (In re Matthew P. (1999) 71 Cal.App.4th 841, 851.)
J.H. had notice that Talbert would not be available and that
Spire would testify instead. He extensively cross-examined
Spire—who authored portions of Talbert’s report, discussed the
case with her and other social workers, spoke with J.H.’s
therapists, and reviewed visitation logs—and had ample
opportunity to challenge the report. That is in stark contrast to
dependency cases in which courts have found due process
violations. (See, e.g., ibid. [denial of full evidentiary hearing]; In
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re Jonique W. (1994) 26 Cal.App.4th 685, 690-694 [de facto parent
not permitted to contest removal of dependent children from her
custody]; In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413
[failure to provide parents with social service reports]; Katzoff v.
Superior Court (1976) 54 Cal.App.3d 1079, 1084 [denial of de
facto parents’ request to present evidence contradicting social
services reports].) Moreover, when advised that Talbert would
not be available at the hearing, he did not subpoena her. That,
too, weighs against finding a due process violation. (In re
Malinda S., supra, 51 Cal.3d at pp. 384-385.)
Sanchez is not to the contrary. Sanchez holds that
“[w]hen any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true
and accurate to support the expert’s opinion, the statements are
hearsay.” (Sanchez, supra, 63 Cal.4th at p. 686.) Those
statements are inadmissible unless independently proven or
covered by a hearsay exception. (Ibid.) The Welfare and
Institutions Code creates exceptions to the hearsay rule. (See In
re Jeanette V., supra, 68 Cal.App.4th at p. 816 [section 358,
subdivision (b)(1) is exception to hearsay rule]; In re Keyonie R.,
supra, 42 Cal.App.4th at pp. 1571-1573 [section 281 is an
exception to the hearsay rule].) Talbert’s report was thus
admissible hearsay.
Sanchez also holds that when an “expert seeks to
relate testimonial hearsay, there is a confrontation clause
violation unless (1) there is a showing of unavailability and (2)
the defendant had a prior opportunity for cross-examination, or
forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th
at p. 686, original italics.) But that holding does not extend to
dependency proceedings: “Although parties in civil proceedings
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have a right to confrontation under the due process clause, ‘[t]he
Sixth Amendment and due process confrontation rights are not
coextensive. [Citation.] Due process in a civil proceeding “is not
measured by the rights accorded a defendant in criminal
proceedings, but by the standard applicable to civil proceedings.”
[Citation.]’ [Citation.]” (Bona, supra, 15 Cal.App.5th at p. 520.)
This is because “[c]riminal defendants and parents [in
dependency proceedings] are not similarly situated. By
definition, criminal defendants face punishment. Parents do not.
[Citation.]” (In re Sade C. (1996) 13 Cal.4th 952, 991, original
italics.) Sanchez’s holding regarding the Sixth Amendment’s
right to confrontation is inapplicable here. (In re April C. (2005)
131 Cal.App.4th 599, 611; see In re Malinda S., supra, 51 Cal.3d
at p. 383, fn. 16.)

Outcome: We deny the petition for extraordinary writ.

Plaintiff's Experts:

Defendant's Experts:

Comments: