Father [F] had custody of his two daughters with his first wife, and the
three of them lived with F’s current wife (the girls’ stepmother).
The San Luis Obispo’s Department of Social Services [DSS] detained
F’s daughters because their stepmother abused them. The girls were
placed in foster care with reunification procedures to take place. F was
instructed to take anger management classes and therapy to help with reunification.
He failed to do so. During the first six months, he exercised his monitored
visitation, but refused to comply with the rest of his DSS case plan.
Due to F’s failure to comply with his DSS case plan, DSS requested
termination of his parental rights. The juvenile court gave F an additional
six months to be in compliance with his case plan. Unfortunately, F, still
angry with DSS and now the juvenile court as well, refused to comply with
any unification efforts. In six months, with no improvement from F, DSS
again requested termination of his parental rights.
The juvenile court scheduled a hearing to determine F’s parental
rights, but nine days before the hearing DSS informed F that his social
worker [SW] no longer worked for the department and that her supervisor
[Sup] would testify in court. (SW had worked with Sup in coordinating
F’s case as well as preparing the DSS reports for juvenile court.)
At the hearing F was openly hostile and refused to accept Sup’s testimony
regarding the reports. In fact, he argued (through his attorney) that
he was entitled to cross-examine SW and that anything that Sup testified
to would be heresay (out of court statements used to prove the truth of
the matter), and thus inadmissible at the hearing.
The court permitted Sup to testify and terminated F’s parental rights
based on Sup’s testimony and the DSS reports. F appealed.
The Appellate Court upheld the juvenile court. “A
substantial probability of reunification requires the court to find that the parent: regularly
contacted and visited the child; made significant progress in resolving
problems that led to the child’s removal from the home; and demonstrated
the capacity and ability both to complete the objectives of the treatment
plan and to provide for the child’s safety, protection, physical
and emotional well-being, and special needs.” Clearly, F failed to do so.
The Appellate Court also noted, “…a parent in a dependency
proceeding has a due process right to confront and cross-examine witnesses.
But due process does not require
full-fledged cross-examination. All that is required is that the procedure adopted comport with fundamental
principles of fairness and decency.”
“Due process,” the Appellate Court held, “is a flexible
concept that weighs any possible hardship to the parent against the state’s
legitimate interest in providing an expedited proceeding to resolve the
child’s status without further delay.”
California Welfare and Institutions Code Section 281 permits the juvenile
court to “receive and consider social service reports in determining
any matter involving the custody, status, or welfare of a minor.’’
In juvenile court, “due process focuses on the right to notice and the right to be heard.” F had notice that SW would not be available and that Sup would
testify instead. His attorney extensively cross-examined Sup and had plenty
of opportunity to challenge the report. Further, when advised that SW
would not be available at the hearing, he did not subpoena her. That,
too, weighs against finding a due process violation.