In Re Clifton
In this case we hold the juvenile court erred in refusing to hear live witness testimony at the hearing on appellant‘s petition for modification pursuant to
Appellant Ajah B. (“mother“) gave birth to Clifton V. in January 1995, when mother was 15 years old. Respondent Los Angeles County Department of Children and Family Services (“DCFS“) detained Clifton in January 1998, pursuant to a petition alleging Clifton‘s father‘s whereabouts were unknown and mother had a history of substance abuse, was homeless, and had failed to provide Clifton with the basic necessities of life. The petition also alleged mother had failed to obtain treatment for a medical condition from which Clifton suffered.
Clifton was detained at the home of his maternal grandmother from January 27, 1998 to October 8, 1998. During this time, mother participated in court-ordered counseling and rehabilitation programs, and was granted supervised visitation. Her relationship with Clifton was described as bonded and loving; however, an April 23, 1998, psychological assessment of Clifton stated “Cliff sees his mother approximately twice per month, although the courts have allowed her to visit 3 times per week for 3 hours per visit.” On October 19, 1998, Clifton was placed with his paternal grandmother, Ethlyn M. (“grandmother“), because his social worker believed he was being inadequately supervised at his maternal grandmother‘s home. DCFS reported grandmother provided excellent care for Clifton.
On April 12, 1999, the court terminated the father‘s reunification services, but extended mother‘s reunification services for six months. By October 12, 1999, mother was visiting Clifton only once or twice a month, despite the social worker‘s encouragement to visit more often. Clifton showed attachment to mother, but was very happy in his placement and was “spoiled” by his relatives. The court terminated reunification services for mother and selected long-term foster care as Clifton‘s permanent plan.
By October 10, 2000, mother was visiting infrequently and grandmother was ready to assume legal guardianship over Clifton. Accordingly, the court set a
On February 1, 2001, mother filed a petition for modification under
The verified petition included a copy of a status review hearing report dated October 12, 1999, which stated in part “Mother has complied with all court orders. Mother has shown a lot of progress and remain [sic] free of drugs and alcohol. However, based upon mother [sic] lack of visitation with Clifton, DCFS must recommend termination of family reunification and of a permanent plan.” Because mother‘s lack of visitation was the key factor in DCFS‘s recommendation, mother‘s
DCFS filed an opposition to the petition on February 7, 2001. On February 22, 2001, DCFS filed a supplemental opposition in which it argued, inter alia, mother had very little contact with Clifton during the previous four years. The supplemental opposition included a declaration from grandmother, in which she directly contradicted the claims made in mother‘s petition. Grandmother‘s declaration stated in part: “It is not true that Ajah [B.] has visited Clifton on a regular or frequent basis. It is not true that Ms. [B.] has visited Clifton regularly two to three times a week. It is not true that Ms. [B.] has telephoned Clifton four to five times a week. [¶] 3. Since Clifton has been in my care Ms. [B.] has visited him two times a week on only two or three occasions. The rest of the time she has visited, at most, one time a month but sometimes goes several months without visiting at all. Ms. [B.] telephones Clifton, at the most, once or twice a month. These telephone calls do become more frequent a few weeks before a court date but go back to once or twice monthly after the court date.... 7. It is not true that Ms. [B.] helps Clifton with his homework. It is not true that she cooks for him. When she does visit, I cook for them both so they can share a meal together.... 10. I have not observed a
Mother‘s petition was heard on February 23, 2001. The court relied solely on the parties’ documents and declarations, and refused mother‘s request to permit live testimony and to cross-examine witnesses. After hearing arguments of counsel, the court determined there had been no change in circumstances since 1998, and it would not be in Clifton‘s interest to return him to mother or to extend mother‘s visitation. Accordingly, it denied the petition.
After the hearing on the
DISCUSSION
I. THE JUVENILE COURT DENIED MOTHER‘S RIGHT TO DUE PROCESS WHEN IT REFUSED TO HEAR LIVE TESTIMONY IN CONNECTION WITH HER SECTION 388 PETITION.
Rule 1432, subdivision (f) of the California Rules of Court provides for a live hearing on a
In Matthew P., the court held the juvenile court erred in refusing to hear live testimony in a contested hearing under
The court in Matthew P. rejected the respondent‘s argument “the discretion given to the juvenile court by rule 1432(f) overrides the ... due process right to confront and cross-examine witnesses.”9 In so holding, it relied in part on rule 1412,
In this case, as in Matthew P., the juvenile court‘s exercise of discretion under Rule 1432, subdivision (f), deprived mother of her right to due process. There was a clear credibility contest between mother and the paternal grandmother, which the juvenile court resolved adversely to mother based solely on the parties’ written submissions and argument of counsel. Under such circumstances, the court should have received mother‘s oral testimony, and should have permitted her to cross-examine Clifton‘s grandmother and the social worker who prepared the report upon which the juvenile court relied. Its failure to do so constituted an abuse of discretion.
II. THE JUVENILE COURT‘S ERROR WAS NOT HARMLESS.
We cannot agree with DCFS‘s contention the juvenile court‘s error was harmless under the applicable standard of “harmless beyond a reasonable doubt.”12 The parties’ declarations were in direct conflict with one another, raising the inference either mother or grandmother was lying. Without the benefit of live testimony and cross-examination, the juvenile court was at a great disadvantage in evaluating the parties’ credibility. We cannot say what the outcome of a live “swearing contest” would have been, thus we cannot say mother was not harmed by the lack of opportunity to present live testimony and to cross-examine adverse witnesses. This result would be the same even under the more lenient “reasonable probability” standard urged by DCFS.13 Therefore, we must reverse the order of the juvenile court and remand for a new hearing on mother‘s
III. THE ORDERS GRANTING GUARDIANSHIP AND TERMINATING JURISDICTION MUST BE VACATED IN LIGHT OF THE ERRONEOUS DENIAL OF MOTHER‘S SECTION 388 PETITION.
Mother argues the juvenile court‘s orders establishing guardianship and terminating jurisdiction must be vacated in light of the juvenile court‘s erroneous denial of her
DISPOSITION
The following orders of the juvenile court are vacated:
1. The order denying mother‘s petition under
section 388 ;
2. The order establishing legal guardianship; and
3. The order terminating jurisdiction.
The matter is remanded to the juvenile court with directions to hold a new hearing on mother‘s petition under
We concur: WOODS, J. and BOLAND, J.*