President's Message—October 2017

By Alexandra Fong

Jean-Simon Serrano

Alexandra Fong

This month’s Riverside Lawyer focuses on evidence. As deputy county counsel for the County of Riverside, I practice in the field of juvenile dependency law. I represent social workers with the Department of Social Services (Department) when a decision is made to file a petition seeking to place a minor within the jurisdiction of Welfare and Institutions section 300 et seq.1 The parents and minor are represented by attorneys, who are either appointed by the court, are independent contractors falling under the umbrella of the juvenile court defense panel, or are retained at the parent’s own expense.

The first hearing on the petition is called a detention hearing, at which time the court may order a minor removed from the parent(s) and placed in the protective custody of the Department pursuant to section 319. Before a minor can be removed from a parent, the court must find the following:

  1. The minor comes within section 300;
  2. Services that would prevent the need for detention are not available;
  3. Continuance in the home is contrary to the minor’s welfare;
  4. A substantial danger exists; and
  5. There are no reasonable means to protect the minor without removal;

If the child is removed, a jurisdiction/dispositional hearing is set usually within fifteen days.

The attorneys deal with the admissibility of the social workers’ reports at various stages of the proceedings. Social workers’ reports contain multiple instances of hearsay as the social workers are involved in interviewing all parties involved in the case, witnesses, and various health care professionals. Section 355, subdivision (b), provides that the social worker’s report and the hearsay evidence contained within it is admissible in court and constitutes competent evidence upon which a finding of jurisdiction may be based. Any party may raise a timely objection to the admission of specific hearsay evidence, which would not be sufficient by itself to support a jurisdictional finding unless the Department establishes that the hearsay evidence falls within one of four exceptions.

Social worker’s reports are admissible at all stages of the dependency proceedings: detention, jurisdiction, disposition, review, and hearings pursuant to section 366.26.2 At hearings, other than the jurisdictional hearings, social workers’ reports are admissible subject to the basis fundamental fairness principles of due process regarding notice and an opportunity to be heard.3 Even the requirement that the Department have the social worker available for cross-examination does not apply at other hearings, although the parents must have the ability to obtain the presence of the social worker.4 As long as each party receives a copy of the report, given an opportunity to cross-examine the social worker who prepared the report, given the opportunity to subpoena and examine the witnesses whose statements are contained in the report, and permitted to introduce rebuttal evidence, no constitutional due process violation exists.5

So what does this mean? If you practice in the field of juvenile dependency law, be prepared for contested hearings challenging all aspects of the social worker’s reports at every stage in the proceedings. If you want to learn more about evidence, the CLE committee has a three-part series on the subject, beginning this month. Please keep an eye out for our monthly mailers and check the announcements on the RCBA website, which can be found at the following link:

On a final note, thank you to everyone who attended the installation dinner last month. We are grateful for your support of the RCBA. As a reminder, RCBA board meetings are open to all members, except for executive sessions. I invite you to attend our board meetings, which are generally scheduled on the third Wednesday of the month. Please call the RCBA at 951-682-1015 and let us know if you plan to attend. I look forward to seeing you at one of our upcoming board meetings or one of the many other events hosted at the RCBA!

1All future statutory references are to the Welfare and Institutions Code unless otherwise stated.

2Seiser & Kumli on California Juvenile Courts Practice and Procedure, 2017 edition, Dependency Proceedings §2.110(3).



5In re Malinda S. (1990) 51 Cal.3d 368, 382-385.

L. Alexandra Fong is a deputy county counsel for the County of Riverside, handling juvenile dependency cases. She is also president-elect of the Leo A. Deegan Inn of Court.

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