Opposition Brief — Joan G. v. Orange County Social Services Agency

| sz Supreme Court, US,

[ EILED

DEC 19

0. 87-816 seed

—_ F. SPANIOL, JR,

CLERK

IN THE . —

SUPREME COURT OF THE UNITED STATES

October Term. LOST

In re Lori G.. a Person Coming

Under the Juvenile Court Law.

JOAN G..

Petitioner.

is

ORANGE COUNTY SOCIAL SERVICES AGENCY.

Respondent.

On Certiorari From the California Court of Appeal

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

ADRIAN KUYPER. COUNTY COUNSE!

LAURENCE M. WATSON, ASSISTANT

and JAMES FO MEADE. DEPUTY

lO Civic Center Plaza

P.O. Box 1379

Santa Ana. California 9270

Thay S34-3316

QUESTIONS PRESENTED

Whether, at a proceeding to terminate her parental

rights, Petitioner was denied due process of law by the intro-

duction, for a limited purpose, of evidence which would have

been inadmissible as hearsay if not so limited.

Whether, at a proceeding to terminate her parental rights,

Petitioner was denied the right to confront the witnesses

against her by the introduction, for a limited purpose, of evi-

dence which would have been inadmissible as hearsay if not

so limited.

Page

ue 8 | ]

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED.................. paweares :

SEAR REEINE GOP BUOE CNONs ooccc acc ecd reece an 3

Th. TD os 5 ods cA ca ede peweacas 3

TN le ek ooh se cehes Sie e teas 3

SUMMARY OF ARGUMENT......................- 4

RRS 64 5k ae Bees ee kee 5

1. THE RECORD IN THIS CASE DOES NOT

PRESENT ANY SUBSTANTIAL FEDERAL

QUESTION OF DUE PROCESS OF LAW...... 5

A. No Hearsay Evidence Was Admitted

Over Objection Of The Petitioner.........5

B. The Record Shows That All Evidence

Admitted For A Limited Purpose Comported

With The Rules Of Evidence And The

Requirements Of Due Process............. 6

C. The Record Contains No Basis For

Concluding That Evidence Admitted For

A Limited Purpose Was Considered By

The Court For Any Other Purpose........ 7

D. The Record Contains No Basis For

TABLE OF CONTENTS

Concluding That Evidence Admitted For

A Limited Purpose Was Used By The

Court As-An Unlimited Basis For The

Termination Of Petitioner's Parental

il

TABLE OF CONTENTS

2. THE INTRODUCTION, FOR LIMITED

PURPOSES, OF EVIDENCE WHICH WOULD

OTHERWISE BE INADMISSIBLE HEARSAY

DID NOT VIOLATE PETITIONER'S

ALLEGED FEDERAL CONFRONTATION

A Sa Se rae sere 8

A. A Proceeding To Terminate Parental

Rights Is Not A “Criminal Prosecution”

Within The Meaning Of The Sixth

Amendment.......... PED AR oa ee fs)

B. Introduction, For A Limited Purpose, ©

Of Evidence Which Would Otherwise Be

Inadmissible Hearsay Does not, In Any

Event, Deny The Right of Confrontation

Specified In The Sixth Amendment....... 10

EE a ae ll

ili

TABLE OF AUTHORITIES

Cases Page(s)

Barber v. Page (1968), 390 U.S. 719, 20 L. Ed. 2d 255,

ee is Ns I fae ac sono v res be Sen eA cick

Dorsey v. Maschmann, 571 F. 2d 1002 (C.A. Mo. 1977)

ut

POPPE CE ee EE PS BEATER EEC EET OR RC CERO Lae 9. 10

Fox v. Taylor Diving and Salvage Co., 694 F. 2d 1349

ate ee wk ee 6

Gomez v. Miller, 337 F. Supp. 386 (D.C. N.Y. 1971)... ..9

Gordon v. D&G Escrow Corp. (1975), 48 Cal. App.

ee I id ay wes eas OR oa

Kelley v. Bailey (1961), 189 Cal. App. 2d 728, 11 Cal.

Me I ae a ae os ea ab th vas oe

Kelly v. State Personnel Bd. (1979), 94 Cal. App. 3d

es ee te Oe ete y okt") 6

Lassiter v. Department of Social Services (1981), 452

U.S. 18, 68 L. Ed. 2d 640, 101 S. @. 2153........... 9

Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d

Re ry re ee en ereee 10

Santosky v. Kramer (1982), 455 U.S. 745, 71 L. Ed.

ee Fe ere rT reerrrre ee

Spencer v. Dixon, 248 La. 604, 181 So. 2d 41 (1965)... .. )

United States v. Lambinus, 747 F. 2d 592 (10th Cir.

1984), cert. denied, 471 U.S. 1067, 104 S. Ct. 2143.

Oe ies IY I oko ee bo oo occa so etek re

United States v. Parson, 22 F. Supp. 149 (D.C. Cal.

Pk eres er ie Canis ora ayweuy apes ks. 9

United States v. Shepherd, 739 F. 2d 510 (10th Cir.

sd eee aed as 2 ce en Bas he oe 5. 10

iv

TABLE OF AUTHORITIES

United States v. Sims, 514 F. 2d 147 (9th Cir.

1975).cert. denied 423 U.S. 845, 96 S. Ct. 83, 46 L.

Ed. 2d 66 (1975)....... RAPS NOE eo re 6, 10

Williams v. State of Mo., 640 F. 2d 140 (1981), cert.

denied, 451 U.S. 990, 68 L. Ed. 2d 849, 101 S. Ct. 2328..... 9

Statutes Page(s)

Federal Rule of Evidence 703.................... 2, 6

Federal Rule of Evidence 705.................... 2, ¢

Federal Rule of Evidence 80l(c).................. % @

California Civil Code

i so ES ere mere So

California Evidence Code

I er en ore 6

Sa eR A, Te i PRP AA Ch 2, 6

I ga aoe ts, ater a oO

United States Constitution

De Re ee as ee ee eee 4, 9, 10

No. 87-816

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

In re Lori G., a Person Coming

Under the Juvenile Court Law.

JOAN G.,

Petitioner,

v.

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Respondent.

On Certiorari From the California Court of Appeal

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

QUESTIONS PRESENTED

Whet‘er, at a proceeding to terminate her parental

rights, Petitioner was denied due process of law by the intro-

duction, for a limited purpose, of evidence which would have

been inadmissible as hearsay if not so limited.

Whether, at a proceeding to terminate her parental rights.

Petitioner was denied the right to confront the witnesses

against her by the introduction, for a limited purpose, of evi-

dence which would have been inadmissible as hearsay if not

so limited.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Federal Rule of Evidence 703:

The facts or data in the particular case upon which an

expert bases an opinion or inference may be those perceived

by or made known to him at or before the hearing. If of a

type reasonably relied upon by experts in the particular field

in forming opinions or inferences upon the subject, the facts

or data need not be admissible in evidence.

Federal Rule of Evidence 705:

The expert may testify in terms of opinion or inference

and give his reasons therefor without prior disclosure of the

underlying facts or data, unless the court requires otherwise.

The expert may in any event be required to disclose the under-

lying facts or data on cross- examination.

Federal Rule of Evidence 801(c):

Hearsay. “Hearsay” is a statement, other than one made

by the declarant while testifving at the trial or hearing. of-

fered in evidence to prove the truth of the matter asserted.

California Evidence Code Section 802:

A witness testifying in the form of an opinion may state

on direct examination the reasons for his opinion and the mat-

ter (including, in the case of an expert, his special knowledge,

skill, experience, training, and education) upon which it is

based, unless he is precluded by law from using such reasens

or matter as a basis for his opinion. The court in its discre-

tion may require that a witness before testifying in the form

of an opinion be first examined concerning the matter upon

which his opinion is based.

California Evidence Code Section 1200(a):

“Hearsay evidence” is evidence of a statement that was

made other than by a witness while testifying at the hearing

and that is offered to prove the truth of the matter stated.

STATEMENT OF THE CASE

A. Course of Proceedings. Respondent adopts the state-

ment of Petitioner.

B. Relevant Facts.

For purposes of this response only, Respondent adopts

Petitioner's staternent except as supplemented as follows:

Therapist Joan Podrow, who treated Petitioner, testified that

the Petitioner did not want to discuss the issue of the molest,

so that she never made any significant progress in dealing with

the issue of the molest. (T. 179)

Therapist Jean Harcourt-Smith, who treated the Peti-

tioner, testified that the Petitioner denied the molest (T. 451.

476) and that the issue of the molest was never dealt with

as completely as it needed to be. (T. 472)

Therapist Elizabeth Smith, who treated the Petitioner

(and was called by Petitioner) testified that Petitioner denied

the molest (T. 414, 415) and that their therapy never got past

Petitioner's denial of the molest. (T. 416)

Therapists Podrow (T. 178, 179) and Harcourt-Smith (T.

459, 463) and Dr. Seaborn (T. 294) testified that it was an

important first step in treatment of child molestation that the

patient admit the molest.

SUMMARY OF ARGUMENT

1. THE RECORD IN THIS CASE DOES NOT PRESENT

ANY SUBSTANTIAL FEDERAL QUESTION OF DUE

PROCESS OF LAW

A.

B.

No hearsay evidence was admitted over objection

of the Petitioner.

The record shows that all evidence admitted for a

limited purpose comported with the rules of evi-

dence and the requirements of due process.

The record contains no basis for concluding that

the evidence admitted for a limited purpose was

considered by the Court for any other purpose.

The record contains no basis for concluding that

evidence admitted for a limited purpose was used

by the Court as an unlimited basis for the termi-

nation of Petitioner's parental rights.

THE INTRODUCTION, FOR LIMITED PURPOSES.

OF EVIDENCE WHICH WOULD OTHERWISE BE

INADMISSIBLE HEARSAY DID NOT VIOLATE

PETITIONER’S ALLEGED FEDERAL CONFRO}-

TATION RIGHTS

A.

A proceeding to terminate parental rights is not a

“criminal prosecution” within the meaning of the

Sixth Amendment.

Introduction, for a limited purpose, of evidence

which would otherwise be inadmissible hearsay

does not, in any event, deny the right of confron-

tation specified in the Sixth Amendment.

ARGUMENT

1. THE RECORD IN THIS CASE DOES NOT PRESENT

ANY SUBSTANTIAL FEDERAL QUESTION OF DUE

PROCESS OF LAW

A. No Hearsay Evidence Was Admitted Over Objec-

tion Of The Petitioner.

Petitioner's due process argument proceeds from the

premise that “prejudicial hearsay evidence” was admitted.

(Pet. for Cert. 25.) This premise is incorrect, in that no hear-

say evidence was admitted over objection.

An out-of-court statement is hearsay only if it is offered

for its truth. California Evid. Code Sec. 1200(a); Fed. R. Evid.

801(c): United States v. Shepherd 739 F. 2d 510, 514 (10th Cir.

1984).

Under California Civil Code Section 232(a)(7), Respon-

dent was required to prove, in addition to the allegation of

parental failure, that “reasonable services” had been offered

by the Social Services Agency to attempt to reunify the fam-

ily. To this end, the Agency introduced evidence of out-of-

court statements made to Agency personnel for the limited

purpose of showing what was made known to and consid-

ered by the Agency in formulating its Service Plan for this

family. Such out-of-court statements were not introduced to

prove the truth of the matters alleged.

The Agency presented the testimony of several mental

health therapists and a psychologist, including their expert

opinions concerning, inter alia, the mental and emotional

state of the minor and of the Petitioner and the question of

detriment to the minor if she were returned to the custody

of Petitioner. The Agency introduced evidence of out-of-court

statements made to these experts for the limited purpose of

explaining the basis for their opinions, and not to prove the

truth of the statements. (It should also be noted that the Peti-

tioner. during the direct examination of her own expert wit-

ness, introduced evidence of similar out-of-court statements

for the same limited purpose.) (T. 490, 492-494)

B. The Record Shows That All Evidence Admitted For

A Limited Purpose Comported With The Rules of

Evidence And The Requirements Of Due Process.

Nowhere does Petitioner argue that the Agency attemp-

ted to offer such statements to prove the truth of the matter

asserted. Instead, Petitioner argues that “the reasons offered

for the introduction of the out of court declarations were inva-

lid, and a subterfuge for bootstrapping hearsay statements

into evidence.” (Pet. for Cert. 25.) However, the record shows

a valid legal basis for introduction of such evidence.

Under California law, evidence otherwise inadmissible

as hearsay may be introduced for the limited purpose of show-

ing the knowledge of a party in determining the

“reasonableness” of that party’s actions. Gordon v. DOG

Escrow Corp. (1975), 48 Cal. App. 3d 616, 122 Cal. Rptr. 150:

Kelly v. State Personnel Bd. (1979), 94 Cal. App. 3d 905, 156

Cal. Rptr. 795. The same rule is followed in federal pro-

ceedings, including criminal trials. United States v. Lambinus.

747 F. 2d 592, 597 (10th Cir. 1984), cert. denied. 47] U.S.

1067, 104 S. Ct. 2143, 85 L. Ed. 2d 500 (1985).

Similarly, evidence otherwise inadmissible as hearsay

may be introduced for the limited purpose of showing the

basis for an opinion expressed by an expert. California Evid.

Code Secs. 801, 802; Kelley v. Bailey (1961), 189 Cal. App.

2d 728, 11 Cal. Rptr. 488. Again, the same rule is followed

in federal proceedings, including criminal trials. Fed. R. Evid.

703, 705; Fox v. Taylor Diving and Salvage Co., 694 F. 2d

1349, 1356, (5th Cir. 1983); United States v. Sims, 514 F. 2d

147, 149-150 (9th Cir. 1975), cert. denied 423 U.S. 845. 96

S. Ct. 83, 46 L. Ed. 2d 66 (1975).

In this case, the Agency's Trial Brief specified the lim-

ited purpose for which otherwise inadmissible hearsay would

be offered. (Clerk's Transcript 2, 3.) Moreover, each question

calling for such evidence was carefully prefaced with a state-

ment as to the limited purpose for which it was offered (e.g.,

T. 81, 84, 134, 136, 137, 140, 219, 220, 223, 231).

As was noted in the opinion of the California Court of

Appeal:

“County counsel was very careful in his

opening argument and continuing

throughout the proceedings to notify the

court certain evidence which might oth-

erwise be [hearsay] would be introduced,

not to prove the truth of the matter

asserted, but to prove the mandates of

section 232, subdivision (a)(7).” (Pet. for

Cert. A-4, A-5.)

C. The Record Contains No Basis For Concluding That

Evidence Admitted For A Limited Purpose Was

Considered By The Court For Any Other Purpose.

Aside from the conclusory assertion that “no judge could

put the hearsay evidence presented in this case out of his mind,

or limit its application” (Pet. for Cert. 43.), Petitioner points

to nothing in the record which indicates that the trial judge

considered the evidence for any purpose other than the lim-

ited purpose for which it was admitted.

Indeed, such evidence as can be gleaned from the rec-

ord indicates the trial judge was well aware of the limited

use he could make of such evidence,

“Mr. Meade: Offered for the limited

purpose, not to demorstrate the truth,

your Honor, but only ty show what was

made known to the Department of Social

Services in this regard

Q_ By Mr. Meads: What informa-

tion did you acquire from Miss Knapf

regarding Miss Goodman’s residence with

her?

Mr. Donald: Objection, hearsay.

The Court: It’s not being offered for

the truth of the matter asserted.” (T. 224)

D. The Record Contains No Basis For Concluding That

Evidence Admitted For A Limited Purpose Was Us-

ed By The Court As An Unlimited Basis For The

Termination Of Petitioner’s Parental Rights.

Petitioner contends she was denied due process of law

“by the introduction of ‘hearsay’ evidence which showed

‘problems’ that in part, formed the basis of the trial court's

decision to terminate her parental rights.” (Pet. for Cert. 2.)

However, she points to no finding or conclusion of the trial

court, or any other aspect of the record, which would sup-

port such conclusion.

The trial court had before it evidence that Petitioner had

molested her daughter, had refused to address the molesta-

tion issue throughout lengthy therapy, and that it would be

dangerous to return the minor to her. Given the weight of

such evidence, the careful limitation of the introduction of

the alleged “hearsay evidence” by counsel, and the aware-

ness of the Court of the limitation on the use of that evidence.

it is nothing but speculation to assert that the Court improper-

ly based its determination of the termination issue on evidence

admitted for a limited purpose.

2. THE INTRODUCTION, FOR LIMITED PURPOSES.

OF EVIDENCE WHICH WOULD OTHERWISE BE

INADMISSIBLE HEARSAY DID NOT VIOLATE

PETITIONER’S ALLEGED FEDERAL CONFRON-

TATION RIGHTS

A. A Proceeding To Terminate Parental Rights Is Not

A “Criminal Prosecution” Within The Meaning Of

The Sixth Amendment.

By its own terms, the Sixth Amendment applies only to

“criminal prosecutions.” Petitioner asserts that a proceeding

to terminate parental right is “criminal in nature” (Pet. for

Cert. 43), drawing an analogy to the writ of habeas corpus.

However, the analogy must fail, since it has been recognized

that the provisions of the Sixth Amendment do not apply to

habeas corpus proceedings. Williams v. State of Mo., 640 F.

2d 140, (1981), cert. denied, 451 U.S. 990, 68 L. Ed. 2d 849,

101 S. Ct. 2328.

Petitioner asserts that the Sixth Amendment “should”

apply to proceedings to terminate parental rights because of

the “gravity of the penalty involved.” (Pet. for Cert. 48.)

However, even where the “penalty” involved has been as great

as loss of personal liberty or residence, the courts have declined

to apply Sixth Amendment provisions in the absence of a true

criminal prosecution. Gomez v. Miller, 337 F. Supp. 386 (D.C.

N.Y. 1971) (civil commitment); Spencer v. Dixon, 248 La. 604,

181 So. 2d 41 (1965) (contempt); United States v. Parson, 22

F. Supp. 149 (D.C. Cal. 1938) (deportation); Dorsey v.

Maschmann, 571 F. 2d 1002 (C.A. Mo. 1977) (parole or pro-

bation revocation).

This Court has been invited to equate parental rights ter-

mination cases with criminal proceedings, and has declined

to do so. Lassiter v. Department of Social Services (1981), 452

U.S. 18, 33, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (due process

held not to mandate appointment of counsel for indigent par-

ent): Santosky v. Kramer (1982), 455 U.S. 745, 755-756, 71

L. Ed. 2d 599, 102 S. Ct. 1388 (“beyond a reasonable doubt”

standard rejected in favor of “clear and convincing evidence”

standard).

B. Introduction, For A Limited Purpose, Of Evidence

Which Would Otherwise Be Inadmissible Hearsay

Does not, In Any Event, Deny The Right Of Con-

frontation Specified In The Sixth Amendment.

This Court has held that the confrontation provisions

of the Sixth Amendment are violated when out-of-court

declarations are admitted in a criminal trial as substantive

evidence to prove the truth of the matters asserted therein.

Pointer v. Texas (1965), 380 U.S. 400, 407, 13 L. Ed. 2d 923.

85 S. Ct. 1065; Barber v. Page (1968), 390 U.S. 719, 20 L. Ed.

2d 255, 88 S. Ct. 1318.

‘ However, when such evidence is admitted for a limited

purpose, other than proof of the matter asserted, a defend-

ant’s right of confrontation is not denied. This is so whether

the limited purpose is to show knowledge or intent (United

States v. Shepherd, supra), or to demonstrate the basis for

the opinion of an expert witness (United States v. Simas, supra).

=~ 20 ...

CONCLUSION

Petitioner's primary assertion, that “hearsay evidence”

was admitted over objection, is simply incorrect. Far from

being “invalid and a subterfuge,” the grounds on which evi-

dence was admitted are well established in both state and

federal law. The record is devoid of any indication that the

trial court considered the evidence for any other purpose than

the properly limited purpose for which it was admitted.

On this record, no substantial federal question is

presented.

Respectfully submitted,

ADRIAN KUYPER, COUNTY COUNSEL

LAURENCE M. WATSON, ASSISTANT

and JAMES F. MEADE, DEPUTY

Laurence M. Watson

By

Counsel of Record

Attorneys for Orange County Social Services

Agency

December 11, 1987