In Re Donald R.
SIMS, J.
In this case, we hold that a written social study containing relevant evidence was properly admitted in evidence over objection at a jurisdictional hearing on a petition brought under
In 1984, six children (four boys, two girls) of Mr. and Mrs. G. were made dependent children under
In January 1986, one of the children, Mr. G.‘s 14-year-old stepdaughter, R., reported to authorities that Mr. G. had sexually abused her on numerous occasions during the past six years. A medical examination was consistent with sexual activity. Mr. G. admitted to an investigating officer he had fondled and attempted intercourse with R. on approximately 10 occasions in the past two years.
In February 1986, the juvenile court ordered in pertinent part that “Said minors’ mother maintain a residence separate and apart from the minors’ father/stepfather, [Mr. G.]. [¶] Said minors’ mother allow no contact between the minors and their father/stepfather, [Mr. G.], until further Court Order.”
In April 1986, a supplemental petition was filed pursuant to
At the jurisdictional hearing, witness Edward Rapski, who had been the G.‘s neighbor for about a year, testified that on several occasions since R.‘s allegations of abuse in January 1986, he had seen Mr. G. arrive at the family home by car. Sometimes, Mrs. G. would back her car all the way up her driveway to the entryway of the house. Mr. G., who would arrive lying down in the rear seat, would then get out of the car and enter the house. Rapski also observed Mr. G. arrive at the house driving a van. On one occasion, Rapski observed Mr. G. at the residence‘s garage.
Witness Michael Johnston, another neighbor of the G.‘s, testified he had seen Mr. G. at the house removing his belongings from the garage, while the younger boys were present.
Sacramento Police Detective Joseph Sledge testified he interviewed Mr. G. following Mr. G.‘s arrest on charges he molested R. Mr. G. admitted to Sledge he had sexually molested R. on 10 different occasions.
County offered into evidence a social study report by social worker Craig Miles. Mr. G. objected to the study on grounds it contained multiple hearsay and denied him his right of confrontation as to statements of persons quoted in the study. The juvenile court admitted the study and Miles was called and examined by all counsel.
The social study contained statements of various individuals, including Mr. and Mrs. G., several of the children, neighbors Rapski, Johnston, Gonzales, Detective Sledge, probation officer Griggs and social worker Stratton. Of these individuals, only the children, neighbor Gonzales, probation officer Griggs, and social worker Stratton were not called to testify at the hearing.
Following the hearing, the juvenile court sustained both the
DISCUSSION
I
The Social Study Was Properly Admitted Into Evidence
A. Admission of the social study was authorized by sections 281 and 355 and by rule 1365 (d) of the California Rules of Court.
(1a) Mr. G. first contends the juvenile court‘s admission of the social study was reversible error.
Rule 1365 (d), of the California Rules of Court, applicable to
However, Mr. G. contends rule 1365 (d) is void because it conflicts with provisions in the Evidence Code precluding the admission of hearsay evidence. Mr. G. also contends the social study was incompetent evidence under In re Michael V. (1974) 10 Cal.3d 676 [111 Cal. Rptr. 681, 517 P.2d 1145]. We conclude there is no conflict between rule 1365 (d) and the Evidence Code and Michael V. applies only to
Under the Evidence Code, hearsay evidence is inadmissible “[e]xcept as provided by law.” (
Two statutes authorize the admission of relevant hearsay evidence in a social study at a jurisdictional hearing on a petition filed under
(2a) Enacted in 1976 (Stats. 1976, ch. 1068, § 5, p. 4755,),
(1c) A second statute also authorizes admission of relevant evidence in the social study.
We think “any matter or information,” includes hearsay, provided it is “relevant and material to the circumstances or acts which are alleged to bring [the minor] within the jurisdiction of the juvenile court.”4
We recognize that in In re Cheryl H. (1984) 153 Cal. App.3d 1098 [200 Cal. Rptr. 789] the court held hearsay evidence inadmissible at a jurisdictional hearing in a dependency case, concluding, “... at a dependency hearing, rulings on the admissibility of evidence must comply with the rules prescribed by the Evidence Code (W&IC, § 701).” (P. 1115, fn. omitted.)
Rule 1365 (d) replicates the requirement of
Mr. G. cites In re Michael V., supra, 10 Cal.3d 676 in support of his claim the social study was inadmissible. However, Michael V., like its predecessor In re Gladys R. (1970) 1 Cal.3d 855 [83 Cal. Rptr. 671, 464 P.2d 127], involves procedures applicable in
The juvenile court properly admitted the social study in evidence. (
B. Mr. G.‘s due process rights were adequately protected.
(4a) Mr. G.‘s objection below was founded not only on grounds of hearsay but also on grounds of lack of confrontation. (5) The federal constitutional right to confrontation is located in the Sixth Amendment and is confined to criminal cases. (In re Mary S. (1986) 186 Cal. App.3d 414, 419 [230 Cal. Rptr. 726].) Nevertheless, although dependency proceedings are civil, a party has a federal due process right under the Fifth and Fourteenth Amendments to confront and cross-examine witnesses. (Id., at pp. 419-420.) (4b) We believe Mr. G.‘s federal due process rights were adequately protected in this proceeding.
(6) If a petition under
(7a) In Long v. Long (1967) 251 Cal. App.2d 732 [59 Cal. Rptr. 790], a proceeding in which a parent faced the loss of custody of her child, the parent challenged the trial court‘s consideration of a probation report prepared under former section 582 (now 281). The Court of Appeal concluded, “Due process of law requires that each party (a) receive a copy of the report, (b) be given an opportunity to cross-examine the investigative officer and to subpoena and examine persons whose hearsay statements are contained in the report, and (c) be permitted to introduce evidence by way of rebuttal.” (Id., at p. 736.)
Long‘s test was later adopted in In re George G., supra, 68 Cal. App.3d at pages 156-157, where the court established due process requirements for the receipt of probation reports mandated by
Since under Angelia P. the due process protections established in Long are adequate to allow admission of a probation report in a proceeding where parental rights may be forever severed, a fortiori the procedures are adequate where a lesser loss of custody is at stake.5
(4c) Mr. G.‘s federal due process rights were adequately protected in this proceeding. First, counsel for both parents were obviously familiar with the contents of the social study; we thus infer that copies were made available to them in advance of the hearing. Second, as the trial court noted, both parents had the opportunity to call any person quoted in the report to testify at the hearing. In fact, each of the essential witnesses against Mr. G. — Detective Sledge, neighbors Rapski and Johnston — was called and cross-examined. The statements of neighbor Gonzales and probation officer Griggs, who were not called, were merely cumulative evidence of Mr. G.‘s presence at the G. home following R.‘s report of molestation. Similarly, the statement of Sara Stratton, who was not called, did not pertain to Mr. G.‘s conduct. Finally, there is no indication on this record that either parent was
(8) The requirements of due process under the California Constitution are not always the same as those under the federal Constitution. (
(7b) When we weigh these considerations, we conclude the requirements of federal due process, set out in Long v. Long, supra, 251 Cal. App.2d 732, also satisfy state due process. We perceive no violation of state due process in this case.
(10) We note that article I, section 15 of the California Constitution also contains a clause allowing a defendant to confront witnesses against him. However, like the federal clause, the state clause is by its terms limited to criminal proceedings.
(4d) We therefore conclude admission of the social study in this case violated none of Mr. G.‘s federal or state constitutional rights.
II
The Evidence Was Sufficient To Sustain the Petitions
(11a) Mr. G. contends the evidence was insufficient to sustain the petitions.
(12a) While authorizing the admission in evidence of “any matter or information relevant and material to circumstances or acts” at issue,
Of course, as we have noted, a dependency proceeding is a specie of civil case. (In re Mary S., supra, 186 Cal. App.3d at p. 418.) Nonetheless, we think it clear the Legislature did not intend to include dependency proceedings within the definition of “civil cases” referred to in
(12b) Rather, we think
(11b) Mr. G. contends that, with inadmissible hearsay in the social study excluded from consideration, insufficient evidence remains to support a finding Mrs. G. knew of Mr. G.‘s molestation of R. and nevertheless permitted contact between him and the children. Mr. G. errs. Ample independent admissible evidence was adduced at the hearing to support each of the juvenile court‘s findings.
(14) On appeal we must indulge in all reasonable inferences to support the findings of the juvenile court and must view the record in the light most favorable to the juvenile court‘s orders. (In re Tanya P. (1981) 120 Cal. App.3d 66, 71 [174 Cal. Rptr. 533]; In re Luwanna S. (1973) 31 Cal. App.3d 112, 114 [107 Cal. Rptr. 62].) It is solely the function of the juvenile court to weigh inconsistencies and determine the credibility of witnesses. (Tanya P., supra, at p. 71.)
Contrary to Mr. G.‘s argument, the petitions were premised on the time period following January 1986 after R. made known she had been molested and the court had entered an order barring Mr. G. from the home. During that time period, Mrs. G.‘s knowledge of Mr. G.‘s molestations was established beyond dispute. The testimony of witnesses Rapski and Johnston established that Mr. G. was present at the minors’ residence on numerous occasions. Johnston testified the younger boys were present with Mr. G. and it can be reasonably inferred the other minors were present at their residence during Mr. G.‘s clandestine visits. (In re Tanya P., supra, 120 Cal. App.3d at p. 71.) The juvenile court‘s findings are adequately supported by substantial evidence admissible in the trial of civil cases.6 (Ibid.;
DISPOSITION
As to each minor, the judgment (order) is affirmed.
Evans, Acting P.J., and Carr, J., concurred.