Admissible: Why Matinda S., Not People v. Sanchez, Governs Child Custody Evaluators
| Publication year | 2018 |
| Author | Leslie Ellen Shear, CFLS, CALS & Julia C. Shear Kushner, J.D. |
Leslie Ellen Shear, CFLS, CALS & Julia C. Shear Kushner, J.D.
Leslie Ellen Shear is one of three California lawyers dual-certified as a family law specialist and an appellate law specialist by the State Bar of California Board of Legal Specialization. Her noteworthy appellate cases include Michael H. v. Gerald D. (U.S. Supreme Court); Kristine H. v. Lisa R. (California Supreme Court); Marriage of Seagondollar (California Court of Appeal). She has practiced family law in California since 1976. Leslie is a fellow of the International Academy of Family Lawyers. Leslie's full bio can be found at https://tinyurl.com/lesbio180223
Julia C. Shear Kushner joined Leslie Ellen Shear's practice in 2012, after a federal district court clerkship in the Central District of California for the Honorable Cormac J. Carney. Julia graduated from UCLA School of Law in 2010. There, she served as chief managing editor of the UCLA Law Review. Her law review comment in that journal, "The Right to Control One's Name", is cited in Witkin. With Leslie, she co-authored an article on abduction risk and prevention for the Journal of Child Custody. She is a member of the LACBA Appellate Courts section executive committee. Julia recently had her first published appellate decision (In re Marriage of Dalgleish and Selvaggio).
The California Supreme Court decision in People v. Sanchez, 63 Cal. 4th 665 (2016), sent shockwaves through the family law community. Sanchez held that expert witnesses cannot be used to relate the case-specific hearsay facts they relied upon to triers of fact in criminal prosecutions.2 Under Sanchez, case-specific investigative evidence gathered or relied upon by a party's retained expert witness may not be considered unless it is independently introduced or falls within a statutory or decisional exception to the hearsay rule. Would the appellate courts extend the holding of Sanchez to experts in family law cases, including forensic accountants, appraisers, vocational evaluators, and child custody investigator/evaluators? In focusing on the Sanchez reasoning, many failed to recognize that there is a separate class for court-appointed social studies in proceedings related to the welfare of children. "Evidence Code section 1200 provides for admissibility of hearsay evidence meeting the conditions of an exception to the hearsay rule created by statute or decisional law. Exceptions to the hearsay rule may thus be found in other codes as well as in the Evidence Code. (See the Senate Committee on Judiciary's Comment to Evid. Code Section 1200.)"3
If family lawyers properly brief motions in limine addressing the admissibility of the testimony of child custody investigator/evaluators, trial and appellate courts should follow the legislative history and decades of still-binding precedent making these court-appointed models exceptions to the general hearsay and expert witness statutes.
It would be extremely helpful if the Legislature would amend California Family Code section 3111 to make this exception apparent from the face of the statute. But, whether or not the Legislature does so, Sanchez simply does not apply to hearsay embedded in the testimony of child custody investigator/evaluators.
This article traces the legislative history and still-binding appellate decisions treating child custody investigation/evaluations, California Family Code sections 3110-3118, probation reports in dependency and parental termination proceedings, and probate reports in guardianships as statutory and decisional exceptions to the general hearsay and expert witness sections of the Evidence Code. This class of court-appointed social studies is governed by In re Malinda S., 51 Cal. 3d 368 (2001), not Sanchez.
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Testimony setting forth the data and analysis contained in a court-ordered social study, including hearsay, "is admissible in proceedings related to the welfare of children because of the necessity of providing the court with a coherent picture of the child's situation."4 In Malinda S., the California Supreme Court expressly approved the Rose G. holding.5
Invoking People v. Sanchez to insist that all hearsay information considered by California Family Code section 3111 child custody investigators/evaluators be established by independent admissible evidence is hugely problematic for resource-strained family courts and family law litigants. That course of action would more than double the necessary trial time, require numerous depositions, and delay the implementation of a new parenting plan for children. For most cases, these requirements would be prohibitive. In such an environment, a Sanchez objection becomes a weapon that can be used to restrict the family court's understanding of the child's life in the family and the community by nullifying the requirements of California Rules of Court, rule 5.220.
Evaluators are required by rule 5.220 to interview multiple collateral witnesses - all of whom would have to testify or be disregarded if Sanchez applies. The Court repeatedly notes that there are many statutory and common law exceptions to the hearsay rule and expert witness statutes in California.6
...[E]xceptions 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.)7
Malinda S. is the controlling California Supreme Court authority for the admissibility of social studies in cases involving the welfare of children. In Malinda S., the Supreme Court adopts the holding of Rose G. that a social study is admissible for purposes of "providing the court with a coherent picture of the child's situation."8 Rose G. holds:
A probation report is itself hearsay evidence as it constitutes the hearsay statements of the probation officer. To the extent that it relates statements made by others to the probation officer, it constitutes double and sometimes multiple hearsay. Civil Code section 233 makes a probation report admissible in proceedings related to the welfare of children because of the necessity of providing the court with a coherent picture of the child's situation. Since the probation report itself might have included an account of Miriam C.'s arrests, and the dispositions made of the arrests, we fail to see how a "make-sheet" attached to the report is distinguishable in effect. There is nothing in the statute which indicates a limitation on admissibility of a probation report to statements of the probation officer relating facts within his own personal knowledge.9
Family courts are bound by the legislative history10 and case law establishing that the scheme for child custody investigations/evaluations/assessments under California Family Code sections 3110-3118 falls within the social study exception to the more general provisions of the hearsay and expert testimony sections of the Evidence Code. Child custody evaluations, social studies in dependency court, probate investigator reports and probation reports share common historical roots -all are the same class of social studies and are used in adjudication of issues of a child's welfare.11 All have been held to be statutory and decisional exceptions to the hearsay rule.12
As we will see, probation officers and child custody investigators were appointed interchangeably (both were routinely used in Los Angeles County) in California family courts. Former California Code of Civil Procedure section 261(a) allowing large counties to employ "domestic relations investigators" (used in the 1930s and 1940s) evolved into today's California Family Code sections 3110-3118. As the larger counties developed separate juvenile and family law divisions, and the California Codes were expanded from the 1872 "Field Code" to a separate Civil Code and a Code of Civil Procedure to create a separate Welfare and Institutions Code, Family Code, Evidence Code and Probate Code, the single all-purpose social studies statute was incorporated into the specialized codes.
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It is important to remember that until the 1969 Family Law Act, superior courts did not have separate formal divisions for dependency, domestic relations, adoption, or probate guardianships. The same judges heard all of these cases - much as they do today in small counties like Inyo and Alpine. For much of that time, the governing statutes were found either in the Civil Code or the Code of Civil Procedure. The same toolkit was used for all of those cases.
That history looks roughly like this (sometimes several of these sections were in effect at the same time):
1929:13 California Code of Civil Procedure section
261(a)
(Domestic Relations Investigators)
↓
1951: California Code of Civil Procedure section 263
(Domestic Relations Investigators)
↓
1961: California Welfare and Institutions Code sections
581-583
(Probation Officer Investigations and Reports)
↓
1961: California Civil Code section 23314
(Probation Reports)
↓
1969 Family Law Act: California Civil Code section
4602
(Custody Investigations - Report Admissible)
↓
1992 Family Code: California Family Code sections
3110-3118
(Custody Investigations)
↓
2000 California Family Code sections 3110-3118
(Custody Evaluation/Investigation/Assessment)
From their inception in the 1930s, child custody investigations/evaluations have been a separate statutory scheme designed for the purpose of gathering and presenting hearsay investigative data to family courts for purposes of judicial economy and completeness. If we shrink the universe of information about the details of a child's life and care as radically as Sanchez might require it will be impossible...
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