Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV320138
Reardon, J.
In this first of two companion cases, mother Iris P. and Patrick P.—the stepfather of minor D.W. and the father of minors K.P. and J.P.—each challenge the juvenile court’s findings of jurisdiction over the minors and its disposition order refusing to return the children to their custody. (See Welf. & Inst. Code, § 300, subds. (b), (d), (j).) In their appeals, Iris and Patrick challenge the jurisdiction findings on various grounds, including violations of due process. As we find that these findings were made in a manner that was inconsistent with due process rights, we reverse the subsequent disposition order.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS
A. Family History
In March 1992, D.W. was born to appellant Iris P. and Wayne W. Iris and Wayne divorced in 1998. In March 1997, Iris gave birth to H.S., who has cerebral palsy. Since March 1999, respondent Lake County Department of Social Services (department) received multiple referrals about this family involving allegations of sexual, physical and emotional abuse as well as general neglect. The reports centered on Iris, her partner appellant Patrick P. and D.W. Investigations were inconclusive. By February 2001, Patrick and Iris were married. Their children K.P. and J.P. were born in May 2000 and December 2001, respectively.
In the summer of 2005, Iris and Patrick separated and dissolution proceedings began. Each parent wanted the other to move out of the family home and each sought custody of K.P. and J.P. By the spring and summer of 2006, restraining orders had issued compelling Iris and Patrick to stay away from each other, ordering Iris to move out of the family home, and awarding temporary custody of D.W., K.P. and J.P. to Patrick.
All subsequent dates refer to the 2006 calendar year unless otherwise indicated.
Even members of the extended family were at odds during the custody disputes. To complicate matters, because D.W. was the step grandchild of a sitting Lake County judge, other members of the Lake County bench disqualified themselves from all contested hearings. (See Code Civ. Proc., § 170.1.) Ultimately, the marriage was dissolved and Patrick was awarded full physical custody of D.W., K.P. and J.P., with Iris having the right to supervised visitation.
On August 17, D.W. reported to the Lake County Sheriff that Patrick had molested her several days earlier. She later recanted her allegation, saying that she had lied because she was angry with Patrick. The sheriff dismissed the report as unfounded.
By August 21, D.W. had run away from home. Her paternal grandmother Charlotte Martin called the Lake County Sheriff that day saying that D.W. had told her that she had been molested. D.W. had told Martin that her recantation had been a lie, after she learned that she might be parted from her siblings if she pressed her complaint.
On August 24, D.W. was interviewed and gave Lake County officials a taped statement about repeated incidents of molestation—that Patrick had fondled her breasts and digitally penetrated her vagina. She told authorities that she was sexually active, that she had a current boyfriend, and that her former boyfriend had—with her consent—touched her breasts and digitally penetrated her vagina.
On August 25, K.P. and J.P. were detained and placed in foster care after having been found in Iris’s custody in violation of the family court orders. D.W. was not detained, because she was living with her paternal grandparents. Iris was homeless, living part time with relatives and part time at the family home while Patrick stayed in Ukiah. Patrick denied D.W.’s molestation allegations and Iris did not believe them.
B. Juvenile Dependency
On August 29, a juvenile dependency petition was filed, alleging that all three minors were dependent children. (See § 300, subds. (b), (d), (j).) It alleged that K.P. and J.P.’s parents had failed to provide for them, noting that Iris did not have adequate housing. It noted the family court order precluding Iris from having custody of these two minors. It also alleged that the minors were at risk of serious physical harm due to a history of domestic violence between Iris and Patrick. (See § 300, subd. (b).) The petition alleged that D.W. was at a risk of sexual abuse from Patrick. It also alleged that K.P. and J.P. were at risk of abuse based on the allegation that their half-sister had been sexually abused. (See § 300, subds. (d), (j).) A detention hearing was held on August 30 and the juvenile court approved the detention of all three children.
Iris is a member of a Native American tribe, so all four of her children are Indian children within the meaning of the Indian Child Welfare Act. (See 25 U.S.C. §§ 1901-1963.) As we do not address any ICWA issues raised in this appeal, our summary of the pertinent facts do not include these aspects of the proceedings.
By September, Patrick and Iris were reconciling their marriage in an attempt to regain custody of the children. On September 18, an initial attempt at a jurisdiction hearing was made before a Lake County judicial officer. He ultimately disqualified himself, but before doing so, he ruled that D.W. could not be called as a witness to testify about the molestation allegations. (See Code Civ. Proc., § 170.1.) On September 25, an amended petition was filed, purporting to extend the failure to protect allegations of the original petition to D.W. as well as the younger minors. (See § 300, subd. (b).)
On September 26, a jurisdiction hearing was held on the amended petition before a replacement judge. The juvenile court took judicial notice of the family law case file. Patrick and Iris submitted the matter on the department’s report and the other documentary evidence. The juvenile court found that all three minors came within its jurisdiction based on the allegations of the amended petition. (See § 300, subds. (b), (d), (j).) Also on September 26, the family court dissolved its restraining order limiting Iris’s contact with the minors to supervised visitation.
After the six-month review hearing in April 2007, jurisdiction over the three minors was continued. In the companion appeal, Patrick and Iris challenge that order. (In re D.W. (Apr. 9, 2008, A117379) [nonpub. opn.].) At the 12-month review hearing in September 2007, continued jurisdiction over the minors was ordered, but K.P. and J.P. were returned to Iris and Patrick’s shared custody. D.W. remained in a group home.
II. DUE PROCESS
A. Advisement of Rights
Iris and Patrick challenge the September jurisdiction order on various due process grounds. First, they contend that the juvenile court violated their due process rights by failing to properly advise them of their rights at the jurisdiction hearing. (See U.S. Const. 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) The California Rules of Court require the juvenile court to advise the parents at the jurisdiction hearing of the right to assert a privilege against self-incrimination; the right to confront and cross-examine persons who prepared reports or documents submitted to the court by the department and the witnesses called to testify at the hearing; the right to use the court’s process to bring in witnesses; the right to present evidence to the court; and the right to have the minors returned to them within two days if the minors do not come within the jurisdiction of the juvenile court. (See former rules 1412(j) [now rule 5.534(k)(1)], 1449(b) [now rule 5.682(b)]; see also §§ 311, subd. (b) [rights at detention hearing], 316 [detention hearing admonishments], 353 [right to counsel].)
All subsequent references to rules are to the California Rules of Court.
The department asserts that both Iris and Patrick were advised of these rights before the September 26 jurisdiction hearing—specifically, at the August 30 detention hearing. (See §§ 311, 316.) At the detention hearing, the juvenile court asked whether the parents had received the petition and gave them time to read it. The juvenile court outlined the nature of the proceedings and the hearings that could occur. It explained that if the allegations were not proven at the jurisdiction hearing, the case would be over and the family would return to the status it held before the case was filed. It cautioned the parents that because the proceedings were so serious, Patrick and Iris had many of the same rights as they would in a criminal proceeding—the right to counsel, the right to subpena witnesses and documents, the right to contest the charges, the right to testify and to present evidence at a hearing, the right to exercise the privilege against self-incrimination, and the right to receive department reports and other documents filed with the court. It appointed counsel for Patrick and Iris at that early stage of the juvenile court proceedings.
Iris and Patrick were present at the second jurisdiction hearing that was conducted by the replacement judge. After the department submitted on the issues in the amended petition on the basis of the record before the juvenile court, Patrick’s counsel stated that his client would enter a no contest plea. In anticipation of this plea, his attorney went over Patrick’s rights on the record, in order to elicit waivers from him. Patrick was advised by his attorney and by the juvenile court of his right to put on evidence contradicting that contained in the record. Patrick seemed uncertain, so the proposed plea was abandoned. In the end, all parties submitted the case on the record rather than put on any evidence at the hearing.
The admonishments given at the detention hearing and the jurisdiction hearing covered most of the required admonishments that are required at the jurisdiction hearing. However, at neither hearing was there any explanation of the right to confront and cross-examine department officials who prepared the reports or documents submitted to the court or those witnesses called to testify at the hearing. (See former rules 1412(j)(2), 1449(b)(3).)
After making its jurisdiction findings, the juvenile court stated that “everybody has had an opportunity to cross-examine anyone else that was heard.” This statement does not address the question of whether Patrick and Iris understood that they had a right to cross-examine witnesses before they submitted the case on the record and before the jurisdiction findings were made. (See former rule 1449(f)(3).)
A parent’s fundamental right to care for and have custody of his or her child may not be affected without due process of law. (In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 17; In re Monique T. (1992) 2 Cal.App.4th 1372, 1377.) One of the due process rights to which parents are entitled in dependency matters is the right to confront and cross-examine witnesses. (In re Monique T., supra, 2 Cal.App.4th at p. 1377; see In re Malinda S., supra, 51 Cal.3d at pp. 383-384.) By adopting former rule 1449, the Judicial Council recognized that these rights are essential to a fair jurisdiction hearing. (In re Monique T., supra, 2 Cal.App.4th at p. 1377.) That rule mandated that the parents be advised of this right and that the juvenile court make a finding that the parents knowingly and intelligently waived them. (In re Monique T., supra, 2 Cal.App.4th at p. 1377; see former rule 1449(b)(3), (f)(3).)
The holding in In re Malinda S. has been partly codified and partly modified by the Legislature in amendments to section 355. (See In re Lucero L. (2000) 22 Cal.4th 1227, 1240.) Our decision applies the current version of section 355 and those principles of Malinda S. that are still applicable.
The Sixth Amendment right of a criminal defendant to confront and cross-examine witnesses does not apply to dependency proceedings, which are civil in nature. (See U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; In re Cindy L. (1997) 17 Cal.4th 15, 27; In re April C. (2005) 131 Cal.App.4th 599, 611; In re Angel W. (2001) 93 Cal.App.4th 1074, 1080, cert. den. sub nom. Barnes v. Department of Health and Human Services, Sacramento County (2002) 535 U.S. 1103-1104; see also pt. II.C., post.)
Neither Iris nor Patrick was advised of the due process right to cross-examine and confront witnesses against them. To paraphrase an earlier decision of this Division, a parent’s right to confront and cross-examine witnesses in a juvenile dependency case has little, if any value unless he or she is advised of that right. “Only with adequate advisement can one choose to appear or not, to prepare or not, and to defend or not.” (In re Stacy T. (1997) 52 Cal.App.4th 1415, 1424; see also former rule 1449(f)(3).) In this matter, the key witness to call, confront and cross-examine would have been D.W., whom Patrick sought to question in order to challenge the credibility of her sex abuse allegations.
B. Rights to Confront and Cross-examine D.W.
Patrick also contends that the juvenile court erred when it prohibited D.W. from testifying, thus violating his due process right to confront and cross-examine witnesses against him. Hearsay statements of D.W.’s molestation accusations were included in the department’s social study. Hearsay evidence that is included in a social study may typically be considered by the juvenile court when making its jurisdiction determination. (See § 355, subd. (c); In re Lucero L., supra, 22 Cal.4th at p. 1242 [plurality decision].) However, this evidence may be considered by a juvenile court as the sole basis of taking jurisdiction over a minor only if the evidence has sufficient indicia of reliability. (See § 355; see also In re April C., supra, 131 Cal.App.4th at p. 612.) If there were insufficient other indicia of reliability to support the juvenile court’s reliance on the hearsay statements in the department’s social study, then Patrick had a right to cross-examine D.W. about her allegations.
Often, minors who make charges of sexual abuse are not called to testify at dependency hearings. California courts recognize a judicially created child dependency exception to the hearsay rule, permitting introduction and consideration of out-of-court statements by alleged victims of child sexual abuse during a jurisdiction hearing. (In re Cindy L., supra, 17 Cal.4th at pp. 18, 21-31; In re Carmen O. (1994) 28 Cal.App.4th 908, 915-922.) Typically, hearsay evidence is inadmissible because it is inherently unreliable. (In re Cindy L., supra, 17 Cal.4th at p. 27; see In re Lucero L., supra, 22 Cal.4th at p. 1248.) However, if the time, content and circumstances of the statement itself provide sufficient indicia of reliability or there is evidence corroborating the child’s statement, the juvenile court may properly rely on the hearsay evidence in the social study without any need for the minor to testify. (See In re Cindy L., supra, 17 Cal.4th at pp. 28-29.)
Factors considered relevant to the reliability of hearsay statements made by child witnesses in sexual abuse cases include spontaneity and consistent repetition; the declarant’s mental state; the use of terminology unexpected of a child of similar age; a lack of motive to fabricate; and the child’s ability to understand the duty to tell the truth and to distinguish between truth and falsity. (In re Cindy L., supra, 17 Cal.4th at pp. 29-30; see Idaho v. Wright (1990) 497 U.S. 805, 821-822 [criminal case].) Most of these factors assume that the reporting child is a preadolescent whose youth and lack of sexual experience may render the report more reliable. (See § 355, subd. (c)(1)(B) [minor under age 12].) D.W. is not such a young child, but a sexually active teenager who admits having engaged in the same types of sexual conduct with her former boyfriend that she described in her allegations of sexual molestation against Patrick. The evidence also suggests that D.W. may have had a motive to fabricate—she once admitted lying about these allegations because she was angry with Patrick. (See ibid. [deceit rendering statement unreliable].) As there was no physical evidence of sexual abuse that might corroborate the hearsay allegations, there were insufficient indicia of reliability to allow the juvenile court to rely on that evidence. We reject the department’s argument that, as a substitute for cross-examination, Patrick could have challenged D.W.’s statements that were contained in the social study. As Patrick was never advised that he had a right to cross-examine the department officials who prepared that report, we cannot find that he knew that this option was available to him. (See pt. II.A., ante.)
The fact that Patrick was informed that he was not entitled to call D.W. as a witness also weighs into our consideration. (See pt. II.D., post.)
The mere admission of hearsay evidence in a juvenile dependency matter is not a per se violation of a parent’s due process rights. (In re Lucero L., supra, 22 Cal.4th at pp. 1243-1244.) However, there are due process problems inherent in relying too heavily on the child’s hearsay statements to make jurisdictional findings without sufficient indicia of reliability to support the statement. (Id. at p. 1244; see § 355, subd. (c)(1)(B).) Unreliable hearsay cannot constitute substantial evidence to support a jurisdictional finding consistent with due process. (In re Lucero L., supra, 22 Cal.4th at pp. 1244-1245.) In this matter, the juvenile court relied heavily on D.W.’s allegations of molestation in order to make the jurisdictional findings for D.W. and for her siblings. (See § 300, subds. (d), (j).) The degree of this reliance bears on our analysis of whether this due process violation constituted prejudicial error, but before we reach that question, we must consider one more evidentiary issue.
C. Judicial Notice
The juvenile court also erred when it took judicial notice of statements in pleadings and declarations in the family court file in support of the jurisdictional findings. The department asked the juvenile court to take judicial notice of this file, particularly the family court order limiting Iris to supervised visitation. The judge granted this request, taking judicial notice of the contents of that file. He noted that the file contained notes from a family court judge that were not available to the department and that he had read those notes.
These notes are not included in the record on appeal.
A trial court may properly take judicial notice of and consider the public records of other court proceedings if those records are relevant to the matter before it. (Evid. Code, § 452, subd. (d)(1); Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, cert. den. sub nom. R. J. Reynolds Tobacco Co. v. Mangini (1994) 513 U.S. 1016, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276, cert. den. sub nom. Daniels v. Philip Morris USA (Mar. 17, 2008, No. 07-740 [2008 WL 695638]). However, the underlying theory of judicial notice assumes that the matter being noticed is a law or fact that is not reasonably subject to dispute. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (Lockley).) Thus, a court has discretion to take judicial notice of a court record, but not of the truth of underlying hearsay statements that are included in the record. (Mangini v. R. J. Reynolds Tobacco Co., supra, 7 Cal.4th at p. 1063; Lockley, supra, 91 Cal.App.4th at p. 882; see, e.g., People v. Pantoja (2004) 122 Cal.App.4th 1, 12.) Allegations in affidavits and declarations contained in court records are not a proper subject of judicial notice, because such matters are reasonably subject to dispute and required formal proof. (See Lockley, supra, 91 Cal.App.4th at p. 882.) Applying this standard, the juvenile court could properly take judicial notice of the family court order precluding Iris from having custody of the minors, but erred by considering the notes that the family court left in the file or other statements that were made in supporting declarations and affidavits.
D. Prejudicial Error
1. Standard of Error
In this matter, Patrick and Iris suffered multiple due process violations. (See, e.g., In re Stacy T., supra, 52 Cal.App.4th at p. 1426.) Iris and Patrick each seek reversal of the jurisdiction order on the basis of these errors. Patrick and Iris disagree about the proper standard of prejudice to be applied—he argues that the error was not harmless beyond a reasonable doubt and she asserts that the error was reversible per se. We agree with Patrick that we cannot affirm the jurisdiction order before us unless we find that the juvenile court’s errors were harmless beyond a reasonable doubt. (See In re Stacy T., supra, 52 Cal.App.4th at p. 1426; In re Monique T., supra, 2 Cal.App.4th at p. 1377; see also Chapman v. California (1967) 386 U.S. 18, 24.)
2. Factors to Consider
When we consider the due process implications of the specific errors we have noted, we also consider several other key factors in this case. First, the juvenile court failed to make required findings that the parents had knowingly and intelligently waived their rights, including the right to confront and cross-examine adverse witnesses, when each submitted the case for decision on the record. (Former rule 1449(f)(3); see pt. II.B., ante.)
Second, Patrick was clearly confused about waiving his rights at the jurisdiction hearing before the replacement judge, prompting his attorney to shift from entering a no contest plea to submitting the case on the record.
Third, the evidence of molestation is grounded in reports from D.W. that are internally contradictory. After D.W. first made these allegations, she recanted. Later, she reasserted the truth of these allegations. Thus, her credibility is not clear.
Fourth, Patrick has consistently denied that he molested D.W. He has not wavered in his denial. The other minors have been returned to his and Iris’s custody home after a psychologist concluded that these minors were not at risk of sexual abuse from him. While his denial is not conclusive on the question of the truth or falsity of D.W.’s allegations of molestation, it stands in clear opposition to the social study’s hearsay evidence of sexual abuse.
Finally, the allegations of molestation form the most serious grounds of jurisdiction over D.W., K.P. and J.P. (See § 300, subds. (d), (j).) These key grounds of jurisdiction were based on hearsay evidence, and Patrick was not advised that he was entitled to challenge that evidence by questioning department officials. Further, he was affirmatively told he could not challenge that evidence by cross-examination of D.W.
3. Alternative Grounds of Jurisdiction
We must uphold the juvenile court’s dependency findings if they are supported by substantial evidence. (In re Lucero L., supra, 22 Cal.4th at p. 1249.) That court’s decision will be upheld if correct, even if the stated reasons for the decision are erroneous or incomplete. (Id. at pp. 1249-1250.) In this matter, the juvenile court took jurisdiction over D.W., K.P. and J.P. based on failure to protect as well as sexual abuse grounds of jurisdiction. If the failure to protect grounds could form an independent basis of jurisdiction over the three minors, we might uphold the findings of jurisdiction despite the defects in the bases grounded in allegations of sexual abuse. (See id. at pp. 1244-1245 [juvenile court cannot rely on unreliable hearsay statement as sole basis of jurisdiction]; see also pt. II.C., ante.) However, we find this approach to be unavailing.
All three of the failure to protect findings are procedurally suspect as a basis of jurisdiction over D.W. The failure to protect allegations appear in the original petition, but are only alleged as to K.P. and J.P. (See § 300, subd. (b).) D.W.’s name was added in the body of the failure to protect allegations of the amended petition. However, subdivision (b) was not cited on D.W.’s cover sheet of that amended petition listing the statutory grounds of jurisdiction, nor was her name listed atop the failure to protect allegations page as one of the minors whom Patrick and Iris allegedly failed to protect. While these defects are minor, they raise some questions whether proper notice was given of the failure to protect basis of jurisdiction over D.W.
Even if we could overcome this procedural defect, each of the three failure to protect allegations is based on evidence that is either weak, is tainted by the due process errors committed in the juvenile court, or has diminished over time. With regard to finding b-1, there is evidence to support the finding that at the time of the jurisdiction hearing, Iris did not have a suitable home for all of her children. But later, she did, making a continuation of jurisdiction—at least for K.P. and J.P., who were later returned to her custody—for any length of time a weak basis of jurisdiction.
The evidence in support of finding b-2 is even more suspect. The family court issued a restraining order restricting Iris from anything other than supervised visitation with the minors. This order was evidence of which the juvenile court could properly take judicial notice. (See pt. II.C., ante.) She could not lawfully offer D.W., K.P. and J.P. a home without violating the terms of the restraining order. However, the restraining order was dissolved on the same day as the juvenile court relied on it to support this jurisdictional finding. Even if the order was still in effect at the very moment of the jurisdiction hearing, this finding could not support continued jurisdiction over the three minors for any significant length of time.
The final failure to protect finding was finding b-3, that the minors were subject to a serious risk of physical harm because of their parents’ domestic violence. There was a history of domestic violence between Patrick and Iris mentioned in passing in the department report. The recent evidence of domestic violence was based on unverified hearsay statements contained in declarations in the family court file. The juvenile court had no authority to take judicial notice of those untested statements and those statements could not form substantial evidence to support any jurisdictional findings. (See pt. II.C., ante.) Thus, there is insufficient evidence to support this third failure to protect finding.
4. Prejudice
Given the evidentiary vulnerability of each of the jurisdictional findings made by the juvenile court, it is clear that the due process errors cannot be said to be harmless beyond a reasonable doubt. (See In re Stacy T., supra, 52 Cal.App.4th at p. 1426; In re Monique T., supra, 2 Cal.App.4th at p. 1377; see also Chapman v. California, supra, 386 U.S. at p. 24.) As we cannot uphold the juvenile court’s jurisdictional findings, the disposition order based on these flawed findings must be reversed. (See, e.g., In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1646; In re Megan B. (1991) 235 Cal.App.3d 942, 950.)
We do not reach Patrick’s ineffective assistance of counsel claim.
In light of this ruling, we need not consider Iris and Patrick’s other challenges to the disposition order.
The disposition order is reversed and the matter is remanded to the juvenile court for further proceedings consistent with this opinion.
We concur: Ruvolo, P.J., Rivera, J.