Malinda S., In re

• Decision Date: 06 September 1990
• Docket Number: No. S012792,S012792
• Citation: 272 Cal.Rptr. 787,795 P.2d 1244,51 Cal.3d 368
• Court: California Supreme Court
• Parties: , 795 P.2d 1244 In re MALINDA S., a Person Coming Under the Juvenile Court Law, A Minor. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. RUSSELL S., Defendant and Appellant.

Page 787

272 Cal.Rptr. 787

51 Cal.3d 368, 795 P.2d 1244

In re MALINDA S., a Person Coming Under the Juvenile Court Law, A Minor.

SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. RUSSELL S., Defendant and Appellant.

No. S012792.

Supreme Court of California,

In Bank.

Sept. 6, 1990.

[51 Cal.3d 372] James G. Dunn (under appointment by the Supreme Court), San Diego, for defendant and appellant.

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman and Edward J. Mantyla, Deputy Dist. Attys., San Diego, for plaintiff and respondent.

De Witt W. Clinton, County Counsel, Los Angeles, David F. Skjeie, Deputy County Counsel, Thomas Lyon, Lloyd M. Harmon, Jr., County Counsel, San Diego, Susan Strom, Acting Chief Deputy County Counsel, Patricia L. Davis, Deputy County Counsel, Steven M. Woodside, County Counsel, Santa Clara, and L. Michael Clark, Deputy County Counsel, amici curiae, on behalf of plaintiff and respondent.

John Y. Tremblatt, San Diego (under appointment by the Court of Appeal), for minor.

LUCAS, Chief Justice.

We granted review to decide whether a juvenile court may rely on "social studies" ¹ prepared by a social worker when determining whether a minor falls within its jurisdiction under WELFARE AND INSTITUTIONS CODE SECTION 300², subdivision (d). ³ We conclude the reports are competent to support such a determination and accordingly affirm the decision of the Court of Appeal so holding.

I. BACKGROUND

Malinda S. was born in June 1983. Her parents, Carol S. and Russell S., married in August 1984 and separated in January 1986. After the separation Malinda lived with her father on weekdays and spent weekends with her mother. Russell's grandmother helped care for Malinda during the week.

Carol claimed to have noticed behavioral changes in Malinda beginning in April 1987. According to Carol, Malinda became withdrawn, cried more readily, became upset when she saw people without clothes, and threw temper tantrums when it was time to return to her father's home. On September 11, 1987, Carol picked up Malinda from Russell's grandmother and took her home. That evening Carol gave Malinda a bath and believed she noticed a strong odor emanating from Malinda's vaginal area (which they referred to as her "privates"). According to Carol, she asked Malinda to wash her privates, but Malinda responded, "No, because they hurt." When asked why her privates hurt, Malinda allegedly replied, "Because my daddy has been touching my privates."

Carol filed a complaint with the San Diego County Department of Social Services (DSS), which then petitioned the juvenile court to find Malinda a dependent child of the court under section 300(d) by reason of Russell's sexual and emotional abuse. ⁴ Malinda was temporarily placed in foster care because Carol doubted she could care for Malinda on a full time basis, but shortly thereafter Malinda was returned to Carol's home.

Social worker Kathy Davis interviewed Malinda on September 14, 1987. Malinda reportedly told her, "My daddy touches my private and I don't like it" and "Sometimes he kisses my private when I have an owie on it." On September 16, 1987, social worker Michelle Neumann-Ribner conducted a videotaped examination of Malinda. At this interview Malinda played with anatomically correct dolls and demonstrated familiarity with body parts. She also made several statements such as "I don't like my dad, because he pulled my private off." Later that day, Susan Horowitz, M.D., examined Malinda's genitals and determined that an external redness and labial adhesion were consistent with a history of rubbing and external genital contact without penetration.

Social worker George Wulff observed Neumann-Ribner's interview with Malinda. Based upon this interview, the reports prepared by Neumann-Ribner and Dr. Horowitz, his own interviews with Malinda and her parents, and his own investigation, Wulff compiled a social study for the court's use at the jurisdictional hearing. This study set forth a summary of jurisdictional facts, a social assessment, an evaluation, a reunification plan, and a recommendation. The study attached the reports prepared by Neumann-Ribner and Dr. Horowitz.

Recanting her earlier statements, Malinda told Wulff on October 23, 1987, that she had made up the stories about her father touching her privates. Based on this repudiation Wulff prepared a supplemental social study. According to this supplemental study, when Wulff asked Malinda if anyone had told her to say she had lied, she responded that her great-grandmother had warned her "not to say anything bad about my daddy." Neumann-Ribner also reinterviewed Malinda and prepared a report, which Wulff attached to the supplemental study. During the interview Malinda allegedly reconfirmed that her father had touched her privates with his hand and penis "lots of times."

At the jurisdictional hearings, ⁵ the juvenile court heard testimony from Carol, Russell's grandmother, and Wulff. Although the attorneys for both Carol and Malinda Carol described the bathing incident and changes she noticed in Malinda's behavior. On cross-examination she admitted to recent custody disputes, which had culminated in Russell obtaining a court order to regain custody of Malinda.

indicated an intention to call Malinda as a witness, neither did so. Moreover, neither Neumann-Ribner nor Dr. Horowitz was called to testify.

Russell's grandmother testified she had also bathed Malinda on September 11, 1987 (the same day as did Carol), but did not notice any unusual odors. She further stated she had observed no changes in Malinda's behavior and that Malinda was always "tickled" to see her father. Finally, she admitted that when Malinda asked her why she could not see her father, she had told Malinda, "I guess it's because you said bad things about your daddy."

Wulff's testimony was essentially limited to authenticating his social studies; he did not provide substantive testimony about the studies, other than to confirm he believed the statements attributed to Malinda were accurate. He did, however, state that based upon the various reports he believed Russell continued to pose a risk to Malinda.

Throughout the proceedings Russell objected to admission of the social studies, maintaining they were incompetent to support a finding of jurisdiction. Rejecting Russell's arguments, the juvenile court admitted the original and supplemental social studies and specifically relied on those studies in finding jurisdiction. The Court of Appeal affirmed. Adhering to the view it expressed in In re Jose M. (1988) 206 Cal.App.3d 1098, 254 Cal.Rptr. 364, the majority declined to follow the contrary holding in In re Donald R. (1987) 195 Cal.App.3d 703, 240 Cal.Rptr. 821, and concluded the trial court acted properly in receiving and considering all the material contained in the social studies. A concurring opinion agreed in result only.

II. STATUTORY CONSTRUCTION

The social studies at issue contain hearsay and even multiple hearsay. (See Evid.Code, § 1200.) The sole question before us is whether such studies are competent evidence to support a finding of jurisdiction under section 300.

According to section 355, in a section 300 jurisdictional hearing, "any matter or information relevant and material to the circumstances or acts which are alleged to bring [the minor] within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300." (Italics added.) The parties agree this language makes a social study admissible for purposes of "providing the court with a coherent picture of the child's situation." (In re Rose G. (1976) 57 Cal.App.3d 406, 426, 129 Cal.Rptr. 338.) ⁶ They disagree, however, whether the italicized language of the section's second sentence bars the juvenile court from relying on an otherwise admissible study when determining jurisdiction.

DSS maintains that although social studies are hearsay, they fall within exceptions to the rule excluding such evidence and are therefore admissible in a civil case. Because the studies are admissible in a civil case, DSS concludes they are competent in and of themselves to support a jurisdictional determination under section 300.

DSS correctly observes that exceptions to the hearsay rule are not limited to those enumerated in the Evidence Code; they may also be found in other codes and decisional law. (In re George G. (1977) 68 Cal.App.3d 146, 155, 137 Cal.Rptr. 201; see also Sen. Committee on Judiciary com., 29B West's Ann.Evid.Code (1966 ed.) § 1200, pp. 34-36, DSS argues that section 281 and California Rules of Court, rule 1450(c) ⁷ (hereafter rule 1450(c)), adopt two such exceptions to the hearsay rule.

Section 281 states, "The probation officer shall upon order of any court in any matter involving the custody, status, or welfare of a minor or minors, make an investigation of appropriate facts and circumstances and prepare and file with the court written reports and written recommendations in reference to such matters. The court is authorized to receive and consider the reports and recommendations of the probation officer in determining any such matter." (Italics added.)

Rule 1450(c) reads, "A social worker's report that contains information relevant to the jurisdiction hearing shall be admissible if, on request of the parent or guardian, the probation officer or social worker is made available to be cross-examined regarding the contents of the report."

The difficulty in interpreting the foregoing provisions is that neither explicitly creates an exception to the hearsay rule. Accordingly, we must construe those provisions to determine whether they implicitly create hearsay exceptions for social studies. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248...