Contra Costa County Social Service Department v. Sandra W.Contra Costa County Social Service Department v. Sandra W.
Opinion
— Appellant Sandra W. timely appeals from an order of the juvenile court sustaining a supplemental petition filed by respondent Contra Costa Social Service Department (the department) as to her granddaughters, Delleisha H. and Jonique W. The minors were originally declared dependents of the juvenile court after they were abandoned by their mother, appellant’s daughter, in May 1990 (
In this appeal, appellant contends that the court erred when it refused to allow her to present any evidence to contest the allegations of the supplemental petition. She further contends that the court’s findings were not supported by substantial evidence. We agree with both of these contentions. Accordingly, we reverse.
I. Factual and Procedural Background
Because of their mother’s inability and unwillingness to provide for their care and protection, Delleisha H. and Jonique W. were adjudged dependents of the juvenile court on May 25, 1990. At that time, Delleisha and Jonique were, respectively, three and a half years and five months of age. The children were formally placed with appellant, their maternal grandmother, with whom they had already spent most of their lives.
The minors’ parents were unable to reunify with their children during the statutory time period and, accordingly, the case was set for a permanency
In a status report for the September 4, 1992 court review, however, the social worker asserted that Delleisha had been examined over a month earlier and diagnosed as having venereal warts. Delleisha was six years old at the time of the report. The social worker further stated, “These warts are presumably transmitted to a child during sexual molestation. Transmission at birth is a valid assumption in a younger child. An exploratory sexual abuse interview with Delleisha did not reveal the identity of the molester. Delleisha has been referred to the Rape Crisis Center for counseling.” Despite this revelation, the court ordered no change in the permanent plan and the minors remained in appellant’s custody for three more months.
On December 14, 1992, the department filed supplemental petitions (§ 387), alleging that placement with appellant had been ineffective in protecting the minors in that appellant: (1) made an inappropriate child care plan for the minors, which resulted in sexual molestation of Delleisha; (2) failed to provide the department with all known information about the molestation; (3) failed to obtain medically prescribed treatment for Delleisha; and (4) kept Delleisha out of school from September 1991 through June 1992 without providing equivalent and effective home study during that period. In conjunction with the filing of the supplemental petition, both minors were removed from appellant’s custody and detained after a hearing pursuant to section 305 et seq.
The first hearing regarding the supplemental petition was held on December 30, 1992. At that hearing, appellant requested and was granted de facto parent status. Appellant also requested and was initially denied appointment of counsel by the referee. However, upon rehearing, the superior court appointed counsel for appellant on February 3, 1993.
Appellant also asked the court to set a “contested” hearing on the petition. The mother of the minors, appellant’s daughter, was willing to stipulate to the supplemental petition and opposed her mother’s request for a contested
On April 7, 1993, the court convened a combined six-month review and “jurisdiction/disposition” hearing on the supplemental petition. At that hearing, the court received and considered the social worker’s report and, solely on that basis, sustained the supplemental petition. Apparently, following the April 7 hearing, Delleisha was placed with her paternal grandmother, and Jonique was placed in a licensed foster home. This timely appeal followed.
II. Discussion
This appeal presents the issue whether the juvenile court erred in ruling that appellant, a relative who was also undisputedly the de facto parent of the dependent minors, lacked standing to contest the supplemental petition at the section 387 hearing held in this case. We conclude that it did, and hold that section 387, as implemented by the California Rules of Court 2 provides appellant with standing to participate as a party to the proceedings on the supplemental petition, and to present evidence to defend against the allegations about her conduct contained therein.
A. A Custodial Relative, Who Is Also a De Facto Parent, Is Entitled to Present Evidence at the “Jurisdictional” Phase of a Bifurcated Hearing on a Section 387 Petition to Defend Against Factual Allegations About His or Her Failure to Protect the Minor.
In relevant part, section 387 provides: “An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, . . . shall be made only after a noticed hearing upon a supplemental petition.” The supplemental petition must be filed in the original dependency action, and must “contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the minor.”
(Id.,
subd. (a).) A section 387 petition is ordinarily required when the petitioner (usually the relevant social services agency) seeks to modify a dispositional order by establishing the need for a “more restrictive level” of custody. (Rule 1430(c).) The clerk of
In proceedings on a supplemental petition, a bifurcated hearing is required.
(In re Fred J.
(1979)
Upon filing of a supplemental petition, the parents, guardians and the “present custodian” of the dependent child must be given notice of both the hearing and the contents of the supplemental petition. (Rules 1407(e), 1431(c); see also § 387.) These notice requirements are imposed “so that the parents and any other interested parties are apprised of the allegations they must be prepared to meet.”
(In re Neal D.
(1972)
As we have noted, the “jurisdictional” phase of the section 387 hearing is a factfinding proceeding to determine whether the allegations of the supplemental petition are true. (Rule 1431(e)(1); see also
In re Joel H.
(1993)
For purposes of a section 387 petition, however, rule 1449 must be read in light of rule 1431 to include a “relative or friend” who has physical custody of the minor, at least where that person’s conduct precipitated the filing of the supplemental petition. (See § 387; rule 1431(c), (e).) It is only such a person who can effectively admit or plead no contest to the allegations of the petition. This is perforce true with a permanent plan of long-term foster care, under which it is unlikely that any parent or guardian would have personal knowledge of the “nature of the conduct alleged in the petition.” (Rule 1449(f)(4).) Such a custodial “relative or friend” may also suffer adverse consequences from an admission that the factual allegations are true. (Ibid.)
Similarly, when applied to a section 387 petition, the contested hearing procedures of rule 1450 must be construed as applying not only to the “parent or guardian” mentioned on the face of that rule, but also to the custodial “relative or friend” who is in a position to deny factual allegations about a failure adequately to protect the child while in his or her custody. (§ 387; rule 1431(c), (e).) Thus, if the relevant “parent, guardian, relative or friend” denies the allegations of the supplemental petition, the court must conduct a contested hearing to resolve factual disputes and determine whether the allegations of the petition are true. (Rule 1450(a).) At the contested hearing on a supplemental petition, a report filed by the responsible social worker is admissible if the author is made available for cross-examination on the contents of the report. (Rule 1450(c).) Opposing parties must also be allowed to subpoena and examine the person(s) whose hearsay
Under this analysis, we conclude that section 387, as implemented by the foregoing California Rules of Court, provides a custodial relative with standing to contest a supplemental petition in the hearing required by that provision, at least where the relative’s conduct and the removal of the minor(s) from the relative’s physical custody are at issue. The juvenile court erred by refusing to recognize appellant’s standing to contest the supplemental petition in this case.
That conclusion does not end our inquiry. As the parties note, unlike a “de facto parent” who is generally entitled to “present evidence” at a dependency hearing (rule 1412(e)(3)), a “relative” ordinarily has only the more limited right to “address the court” (rule 1412(f)(2)). Thus, it is arguable that, even if he or she can demand a contested hearing, the Rules of Court do not permit full participation by a mere “relative” in the presentation of evidence and other aspects of adversarial dependency proceedings.
In this case, there is an obvious response to the foregoing argument: Appellant in this case was
both
a custodial relative and the undisputed de facto parent of the minors. On that basis, she was entitled to “present evidence” (rule 1412(e)(3)), and otherwise to participate as a full party to the contested hearing.
(In re Kieshia E.
(1993)
This case is closely analogous to
Katzoff, supra,
In opposition to the request for a change of placement, the Katzoffs’ attorney offered their denial of the department’s allegations. The attorney also offered the testimony of Mrs. Katzoff and submitted letters from medical and psychological experts who supported the Katzoffs’ contention that placing the child in another foster home pending further proceedings would not be in the child’s best interests. The juvenile court, however, refused to allow the Katzoffs to present any evidence to contest the department’s allegations, and ordered the child removed from their custody. (Katzoff, supra, 54 Cal.App.3d at pp. 1082-1083.)
The Court of Appeal concluded that this was reversible error, holding that the Katzoffs had been denied their rights as de facto parents.
(Katzoff, supra,
The same is true here. Although the juvenile court recognized that appellant was the de facto parent of the minors, it refused to allow her to present any evidence to contest the department’s allegations about her conduct or otherwise to provide the court with relevant information about the girls’ best interests. This was error.
(Katzoff, supra,
Even more importantly, however, Delleisha and Jonique stood to lose the care and nurturance of their primary caretaker, the only blood relative with
We reject the department’s arguments that
In re Kieshia E., supra,
which was decided after the juvenile court sustained the supplemental petition, requires that appellant be excluded from the “jurisdictional” phase of a section 387 hearing. Although the court stated that “the de facto parenthood doctrine never contemplated a nonparent’s participation in that capacity at the
jurisdictional
stage of a dependency proceeding,” it is clear in context that the court was referring to the original hearing on a
At oral argument, the department voiced concern that a de facto parent should not be able to override the decision of a natural parent who chooses not to contest a supplemental petition alleging misconduct by the nonparent. To do so, according to the department, would be to “elevate the rights of the de facto parent over and above those of the natural parent.” The department relies on language in
In re Kieshia
£.,
supra,
where our Supreme Court said, “[A]t bottom, it is the parent, not the outsider, who retains the essential and basic right to decide how to respond to the state’s intervention.” (
The department’s arguments — and the Supreme Court’s observation— presuppose a natural parent who is on the scene, actively involved in the
Respondent also implies that, under the rule of
In re Kieshia E,
the juvenile court erred from the outset by finding that appellant was the de facto parent of the minors. Any argument based on the holding of
In re Kieshia E.
is premature. In that case the juvenile court weighed conflicting evidence and concluded that a man who was found to have sexually molested the daughter of his domestic partner was nevertheless the “psychological parent” of the minor and, thus, merited recognition as the child’s de facto parent for purposes of participating in the postjurisdictional stages of dependency proceedings. (
The Court of Appeal affirmed the juvenile court’s decision, but the minor sought and was granted review by the Supreme Court. After surveying the development of the de facto parenthood doctrine (In re Kieshia E., supra, 6 Cal.4th at pp. 75-78), the Supreme Court reversed, under the following limited holding: “All we decide today is that a nonparent who commits sexual or other serious physical abuse upon a child in his or her charge thereby abandons the function of care, affection, and psychological fulfillment essential to the role of a de facto parent. When a juvenile court has found that the nonparent committed such abuse, and has therefore deemed it necessary to make the victim a dependent of the court, the abuser is barred from intervening in the same proceeding under the de facto parent doctrine.” (Id. at pp. 79-80.) In re Kieshia E. thus stands for the proposition that a de facto parent loses that status, and may be excluded from further participation in a dependency proceeding, once there is an adjudication that the minor is within the jurisdiction of the juvenile court because of the nonparental caretaker’s harmful conduct. (Id. at p. 78.)
There was no such adjudication in this case, and there is no showing that appellant herself engaged in sexual or other serious physical abuse of her
B. On Remand the Department Must Establish by a Preponderance of Admissible Evidence That the Placement With Appellant Has Not Been Effective in the Protection of the Minors.
Having decided that the juvenile court erred in refusing to allow appellant to oppose the supplemental petition, we must decide whether the error was prejudicial. Although it may be a close case, we conclude that it was.
In this case, the juvenile court sustained the supplemental petition solely on the basis of “evidence” contained in the social worker’s report prepared for the April 7, 1993 hearing. In relevant part, that report consisted of the social worker’s vague references to hearsay statements by anonymous declarants:
“Reportedly,
Delleisha was sexually molested when her grandmother, Sandra W[.], left her and Jonique in the care of a single man named Frank, who lives in North Oakland or Berkeley. The sexual molestation was made [szc] by a man named Keith, the nephew of Frank. In 1991, Ms. W[.] suspected that Jonique had been molested while in the care of her friend, Frank. Sexual abuse of Delleisha was suspected after Dr. James Carpenter made a medical diagnosis of venereal warts on July 28, 1992. Ms. W[.] denied having any knowledge of the possible sexual molester when interviewed by the Social Service Department on July 30, 1992. The Social Service Department
later learned
that Delleisha told Ms. W[.] about the molestation the day after it occurred. Dr. Carpenter prescribed a topical ointment for the warts which Ms. W[.] did not obtain between July and November, 1992. [<J[] Jonique W[.] was removed from the care of Sandra W[.] after it
became known
that Ms. W[.] had not given the Social Service Department all information known about the sexual molestation of Delleisha [H.]. Jonique had been acting very sexual in her foster placement. On several occasions, she has assumed a coital position with her three-year-old foster
Generally speaking, the foregoing type of report is competent and admissible proof in a dependency proceeding
(In re Malinda S., supra,
In this case, the social worker’s report makes out a rather compelling prima facie showing that the placement with appellant was ineffective in protecting the minors. (§ 387.) However, that showing was not subjected to even the most minimal adversarial testing. The party whose conduct was at issue — appellant—was not given an opportunity to object to the contents of the social worker’s report, or to subpoena and examine the social worker or any of the other person(s) whose hearsay statements are contained therein. Indeed, subpoenaing the hearsay declarant(s) would have been extremely difficult since the source(s) of much of the critical information contained in the social worker’s report are unidentified. Although the report identifies the physician who allegedly diagnosed Delleisha’s venereal warts, the juvenile court’s order denying appellant’s request for a hearing effectively prevented her from subpoenaing the doctor or his records. The juvenile court also precluded appellant’s own testimony, and prevented her from presenting other witnesses or evidence to refute the department’s allegations. The one-sided presentation of evidence in this case was surely not the type of proceeding contemplated by section 387, or the California Rules of Court. We remand for a contested hearing in which the department must prove by a preponderance of admissible evidence that the factual allegations of the supplemental petition are true, and that the placement with appellant was not effective in the protection of the minors.
For the foregoing reasons, we reverse the order of the juvenile court sustaining the supplemental petition, and remand for further proceedings consistent with this opinion. At the hearing on the supplemental petition, appellant shall be allowed to appear with her court-appointed counsel and to present evidence relevant to the issues framed by the petition. Appellant shall also be permitted to subpoena and cross-examine any witnesses on which the department relies to support its petition.
Kline, P. J., and Smith, J., concurred.
Notes
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
A11 further references to rules are to the California Rules of Court.
Indeed, the Supreme Court in
In re Kieshia E.
specifically stated that it was not deciding what procedural rights should be accorded a de facto parent in a “jurisdictional” hearing in a case where no parent is “directly involved” in the life of the dependent child. (