Opinion
B231868
09-29-2011
In re JUSTIN E., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent. v. JOSE E., Defendant and Appellant.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Grace Clark for Minors.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK82964)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Commissioner. Affirmed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance on behalf of Plaintiff and Respondent.
Grace Clark for Minors.
Jose E. (father) appeals from a judgment entered under Welfare and Institutions Code section 360, subdivision (d). Father argues that the court's questioning of a social worker during the dispositional hearing gave the appearance of bias and partiality by the court in violation of father's constitutional due process right to a fair hearing, and that such a violation is reversible per se. For the reasons set forth below, we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
The three children who are the subjects of this appeal are Justin E. (Justin), born February 2001, Max E. (Max), born July 2002, and Matthew E. (Matthew), born January 2004. Celina C. (mother) is the mother of all three children. She is not a party to this appeal.
1. The referral
On May 10, 2010, the Los Angeles County Department of Children and Family Services (DCFS) was notified that seven-year-old Max had not talked at all since he had been enrolled in school. Mother had been given two referrals for counseling for Max, but had not followed through. Mother also did not attend a school meeting to discuss Max's issues, and all three children had been absent from school for four days.
DCFS is not a party to this appeal. DCFS filed a letter indicating that it was aligned with father regarding disposition at trial. Therefore, DCFS has taken no position on appeal. However, the attorney for the three children has filed a responsive brief. The three children are sometimes collectively referred to as "minors" in this matter.
On May 14, 2010, a DCFS social worker made contact with mother and the three children as they were walking to school. Mother said that father had recently left the family. She informed the social worker that there had been domestic violence between mother and father in the past. Mother stated that father had hit her with a gun in her ribs, possibly six years ago. Her ribs still hurt and burned and sometimes she took medication for the pain. During the interview, mother made some bizarre statements and was unable to provide the children's birthdates.
Mother gave the social worker permission to speak to Max, described in the report as a "selective mute." Max communicated with hand gestures. He indicated that his family needs counseling and that his mother and father fight.
The social worker spoke with Justin and Matthew at school. Justin stated that he had witnessed his mother and father fight. Matthew also stated that he had witnessed domestic violence, and described an incident where there was glass everywhere because one of his parents threw a jar of chilies.
On May 28, 2010, the social worker made an unannounced visit to the family home. The social worker met Jeffrey, mother's 18-year-old son, who appeared pale and weak. Jeffrey stated that he had not been able to walk since February but he was not sure why. Father had taken him to the hospital in February and they talked about a possible tumor. However, Jeffrey had not been back to the hospital because the family did not know if he had insurance coverage. During this exchange, mother stated that medical bills would cost too much.
Jeffrey stated that father had not been in the home for a long time but usually comes on Saturdays to bring food. He stated that he believed mother was depressed. Mother agreed and indicated that she would like to receive help.
The children's school attendance records indicated that Justin had been absent from school 36 days and tardy 33 days out of a total of 163 days. Max had been absent from school 41 days and tardy 11 days out of a total of 163 days. Matthew had been absent 28 days and tardy 5 days out of a total of 104 days.
On June 12, 2010, at the request of DCFS, mother underwent a psychiatric evaluation. Mother reported that she had a relationship with her husband for approximately 10 to 20 years, and that her husband had a long history of emotionally, physically, and sexually abusing her. She also reported that her husband had a history of drinking alcohol excessively and smoking marijuana. She admitted to having a history of using cocaine and marijuana, but not in the past several months. Mother reported that she had five children and she lived alone with her children for the past one month.
Mother admitted that she was arrested for domestic violence approximately two and a half years prior, and spent two to three days in jail for this charge. Mother reported that father "beat her several times per week" and was "very emotionally abusive." The examiner diagnosed mother with bipolar disorder and recommended that she be evaluated for medication. It was also recommended that mother "secure a divorce and protective orders to prevent future occurrences of domestic violence/sexual assault."
2. The family's prior history with DCFS
The family had participated in voluntary family maintenance from October 2003 to February 2005 for sustained allegations of general neglect. Specifically, the family was living in a garage and the children were dirty and hungry. During this time, the children were placed in out-of-home care for six months.
In 2004, a referral alleged that the parents took Justin to the hospital. He was filthy and severely dehydrated with blood in his stool. Mother kept walking away while Justin was being treated and had a flat affect when informed that he needed to be hospitalized. The reporter believed that Justin had been ill for some time without treatment. The allegations of severe neglect were substantiated.
Two days later, DCFS received a referral alleging that father was under the home with a long wooden stick that had cloth or paper wrapped at the end, soaked in lighter fluid. The reporter also smelled dangerous fumes. The police were contacted. They reported that father was hearing voices, acting paranoid, and believed that two men were trying to break into his home. Father was detained pursuant to section 5150 ("5150 hold"), and transported for a psychiatric evaluation. Father's car and residence were filthy and smelled terrible. The referral was substantiated.
Section 5150 permits involuntary confinement of a person deemed to have a mental disorder that makes the person a danger to himself or herself.
In March 2009, DCFS received a referral alleging that Justin had disclosed that his brother, Joey, forced him to drink beer and that he ended up vomiting. The referral stated that mother had recently been on a section 5150 hold and "sleeps a lot." The reporting party was concerned that mother was not providing adequate supervision. This report was inconclusive for all allegations.
3. Dependency petition and detention
On July 7, 2010, DCFS filed a dependency petition alleging the children were described by section 300, subdivisions (a), (b), (g), and (j). The social worker permitted the children to remain in mother's custody, rather than detain them. At the detention hearing on July 8, 2010, counsel for the children asked that they be detained. The court agreed, indicating that the information provided to the court showed "a very substantial risk" to the children if they remained in mother's care. Father was not present at the hearing, but DCFS was ordered to initiate a due diligence search.
4. Jurisdiction/disposition report
DCFS filed a jurisdiction/disposition report on August 12, 2010, which stated that the three children were in foster care. On July 29, 2010, the social worker had conducted a telephone interview with father, who was residing in northern California. Father admitted to the incident with the gun but stated that it occurred over 10 years ago, before the children were born. Father indicated that he and mother would argue because mother drank all the time and did not take care of the kids. Father stated that mother becomes violent when she drinks. Mother and father's 18-year-old son, Jeffrey, was living with father at that time, and Jeffrey's condition had improved. Father indicated that paternal grandmother was helping him provide care for Jeffrey. Father wanted Justin, Max and Matthew to live with him in northern California.
Father stated that he tried to encourage mother to go to her counseling sessions and to take Max to his scheduled appointments for his speech impediment. He stated that he brought the family food and paid the rent despite the fact that he was not living in the family home.
The social worker interviewed Matthew and Justin on August 1, 2010. Both children indicated that they did not want to live with their father. Father had not yet had a visit with the children. Father was living in a three-bedroom home in Gustine, California with paternal grandmother, two nephews, and his son Jeffrey. Father had been employed at Auto Zone for the past six months. It was not recommended that the children be placed with father, as they did not want to live with him.
The jurisdiction/disposition report concluded that father had "failed to be proactive in his children's lives." He continued to allow the children to live with mother despite knowledge that mother was not seeking treatment for her mental instability. Further, father was aware that mother drank, and that she became violent when she drank. Father also failed to ensure that Max received services for his speech problem. DCFS recommended that the petition be sustained, and that the parents be allowed monitored visits with the children.
5. Jurisdictional hearing
On August 13, 2010, DCFS was ordered to assess father's home with paternal grandmother in Merced County and submit a supplemental report. The jurisdictional hearing was continued to September 24, 2010.
DCFS filed a last minute information for the court on September 24, 2010, which stated that a social worker made an unannounced visit to father's home in Merced County on September 20, 2010. According to the report, father lived with his mother, his 25-year-old nephew, and his 18-year-old son. The home was clean and organized with a fenced-in yard where the family kept three pit bull dogs. Father wanted full custody of the children. He was working full time at Auto Zone, but intended to use his mother and older son for childcare while he worked. After this visit, DCFS changed its recommendation, and recommended that the children be released to father, as father "appears willing and able to care for his children."
At the September 24, 2010 adjudication, father appeared and pled no contest to the allegations in the petition. The court sustained the allegations, as amended, and found that the children were described by section 300, subdivision (b). Mother did not appear at the hearing, and her whereabouts were unknown for the duration of the case.
The court questioned DCFS's recommended disposition. The court was concerned with the family's history and the previous substantiated allegations involving father. The court ordered that father undergo a psychiatric evaluation, and continued the matter for disposition.
6. Father's evaluation
Father underwent a psychiatric evaluation on October 18, 2010, with Douglas Greenblatt, M.D. Father was born the seventh of eight children, and was mainly raised by his siblings as his parents were divorced and his mother worked. He was a member of a street gang from the age of 13 to the age of 19, during which time he defaced buildings with graffiti, drank alcohol, smoked cannabis and fought rival gang members. Father dropped out of high school in 11th grade to financially support his first child with mother, who was his high school girlfriend. They married in 2002, and have five male children together ranging in age from six to 23 years old.
When asked about his relationship with his wife he indicated that they frequently argued, but that they had been in a stable relationship until the last 10 years. He worked from 40-50 hours per week and believed that his role was to financially support the family. He believed mother's role was to care for the household and the children.
When asked about his 5150 hold and the related allegations in 2004, father stated that it was a misunderstanding. He reported that he was using a "zippo" cigarette lighter to look into a large air vent on the side of his in-law's home. He reported having lighter fluid on him because he had just refilled the lighter. He denied having a propane torch or any object soaked in lighter fluid. He denied the allegations that he heard voices or thought that other people were trying to break into the home. He reported being taken to a hospital, although he refused to take medications. He was released after three days and was not diagnosed with any mental disorder. He was unable to provide any further information and medical records were not provided to Dr. Greenblatt.
Father stated that mother's alcohol abuse caused the problems in the home. He denied ever physically or sexually abusing mother. He denied ever owning a gun or ever hitting mother with anything. When asked why he left his children alone with his troubled wife, father stated that he believed he did everything he could have done.
Dr. Greenblatt believed that father "appeared to minimize his shortcomings" when discussing his previous parenting behaviors. Dr. Greenblatt expressed concern that father lacked some skills to ensure the type of safe home environment that three young children need. Without appropriate intervention, the examiner felt that there was a significant likelihood that the children would be physically or emotionally abused. Dr. Greenblatt did not ascertain any psychiatric or psychological condition that would prevent reunification, however the examiner expressed concerns "based on his history of poor judgment, oversimplification of his parental role, limited appreciation of his children's safety and health, domestic violence allegations, and history of substance abuse." The examiner concluded that the children "should remain in out of home placement, under the supervision of DCFS, until the time that [father] proves he can safely and adequately care for his children."
The social worker spoke with Dr. Greenblatt on October 26, 2010. Dr. Greenblatt stated that the assessment was not complete because he wanted to read the reports from father's 5150 hold in 2004. The social worker made attempts to find the records, but was unable to provide them to the examiner.
7. Contested dispositional hearing
The contested dispositional hearing was held on January 27, 2011.
The social worker's testimony
County counsel called the DCFS social worker to testify first. DCFS continued to recommend that the children be placed with their father in Merced County and that the matter accordingly be transferred to Merced County. The social worker testified that DCFS had no concerns about father or his judgment. DCFS disagreed with Dr. Greenblatt's recommendation with respect to the placement of the children. Under questioning from father's counsel, the social worker repeated that she had no concerns about the children being placed in the father's home, no concerns about father's parenting, and no concerns about whether father could protect the children from mother. After counsel for DCFS, counsel for the children, and counsel for father were given the opportunity to question the social worker, the court stated, "let's take a break because I have a really long examination of this social worker."
The court's examination of the social worker
The court began by asking the social worker why DCFS asks for "upfront assessments." The worker responded that it was "To determine whether there's a long history of domestic violence, mental health issues, substance abuse." The court inquired what DCFS does with those assessments, to which the social worker responded that they were taken into account, and used as a tool to get appropriate services. On the court's questioning, the social worker agreed that the assessment in this case showed a long history of domestic violence.
The court asked the social worker to review some of DCFS's recommendations from early in the case, one of which was that the children "'participate in therapy to address their long-term exposure to a high level of domestic violence'"; another of which was that "'client [mother] receive legal assistance to secure a divorce and protective order to prevent future occurrences of domestic violence/sexual assault.'" In response to the court's questioning as to what had been done to address the domestic violence issue, the social worker responded that father had completed an anger management class in 2004.
County counsel objected to this line of questioning on the ground of "best evidence." The court noted the objection for the record.
The court then pointed out to the social worker that father had admitted to using a gun in one of the incidents of domestic violence. The court inquired of the social worker whether it caused her concern that father had denied this incident to Dr. Greenblatt. The social worker responded that it did cause her concern. The court then asked the social worker if it caused her concern that, despite having completed an anger management class in 2004, the assessment indicated that the children had been exposed to domestic violence over a long period, and that father himself reported domestic violence incidents through 2008 and 2009. The social worker responded that it did cause her concern, but "father has removed himself from that situation." The social worker stated her belief that "a lot of this domestic violence [was] due to [mother's] mental health issues." The court inquired, "Why would she be the one that needed protective orders then?" The witness responded, "I can't answer that."
County counsel's objection that this was a compound question was noted for the record.
The court read from count a-1 of the section 300 petition, concerning domestic violence between the parents. County counsel objected on the ground of relevance, since that count had been dismissed. The court asked the social worker why DCFS pled these allegations. The social worker responded that the allegations were based on what mother had described. When asked, "So are you saying you didn't believe the mother?" the social worker responded, "No." The court then asked a line of questions directed towards determining when and why the domestic violence allegations were dismissed. The social worker indicated that mother had been "irrational," so the social worker looked for further evidence in the form of police reports and hospital records. After this search, it just "didn't seem that it was warranted."
County counsel's objection on the ground of speculation was overruled.
The court then drew the social worker's attention to the jurisdictional report of August 13, 2010, where DCFS stated that "'Father has failed to be proactive in the children's lives.'" The court asked the social worker how father had changed in that regard. The social worker indicated that father had "just assumed" that mother was doing okay. The social worker explained that father believed that his "role" was "to give monetarily." Today, the social worker believed that father had a better understanding of fatherhood.
The court then asked about prior substantiated referrals. In particular, the court wondered about the incident when father was found under the home with a propane torch, a can of lighter fluid and a cigarette lighter, and was put on a 5150 hold. The court asked the social worker if it caused her concern that those substantiated allegations were described by father as "a misunderstanding." The social worker responded that it did not cause her concern, commenting that "Maybe he really was just looking for some people that he thought were trying to break into his house." When asked if she now thought DCFS had substantiated those allegations in error, she responded that there was currently no information regarding any mental health issues.
The court then stated:
"I just want to make sure I have this right. So you disagree with the previous social workers who substantiated referrals; you disagree with the clinical assessor who did the upfront assessment; you disagree with the doctors that did the 730 reports; is that correct?"
County counsel objected on the ground that the court misstated the social worker's testimony. The court responded, "It seems exactly what her testimony just said to me. She can certainly tell me where I'm wrong in that."
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The social worker responded that, as to the prior substantiated referrals, she was "in disagreement with it now, because I have nothing in writing saying otherwise." As for the 730 report, the social worker argued that Dr. Greenblatt was basing his recommendations "on when the [father] was you know 17, 18, and running around the streets of Los Angeles." The social worker reiterated that there was no evidence of father having any mental health issues.
The court then drew the social worker's attention to father's care of the 18-year-old son. The court read part of the detention report indicating that father had taken Jeffrey to the hospital, where they talked about a possible tumor, but that Jeffrey had not been back as of July. The court also drew the social worker's attention to Max's speech problem, and asked, "[W]hat had father done to get services in place for Max?" The social worker responded that the school had given the family a referral, but "nothing ever came of it." The social worker indicated that father has received referrals from Merced County where he can get speech therapy for Max.
Finally, the court asked, "What did father do to protect the children from the mother's alcohol use?" The social worker responded: "Nothing."
Following further redirect examination by county counsel, and further recross-examination by the children's counsel and father's counsel, the matter was continued so that Dr. Greenblatt could testify.
Dr. Greenblatt's testimony
Dr. Greenblatt testified by telephone on February 3, 2011. Dr. Greenblatt explained that after examining father, he believed there was a significant likelihood that that children would be physically or emotionally abused if they were returned to father without intervention. He clarified that he was concerned with neglect, which would constitute physical and emotional abuse. With intervention, Dr. Greenblatt felt that the chance of physical and emotional abuse would be low. He believed that in order to reunify, father should first have monitored visits with the children, then unmonitored visits, then overnight stays and weekend visitation.
Dr. Greenblatt had concerns about immediately returning the children to father because of father's "concrete thinking." In other words, father did not seem to appreciate the degree of seriousness of some of the issues facing the family. For example, he defined his role as a father as "to provide for his family." When faced with a hypothetical about the mother being sick, he couldn't really appreciate that the role of the father might have to change.
Closing arguments and the court's order
At the conclusion of the hearing, DCFS argued that the children should be returned to father.
The children's counsel objected, arguing that DCFS was minimizing what was going on with these children. She argued that the social worker did not make a good faith effort to get the documents regarding the history of the family. She argued that it was "concerning" that the social worker placed her own analysis above Dr. Greenblatt's, and further "concerning" that the social worker "ignored" the statements from mother, father and the children regarding domestic violence.
Father's counsel argued that the children should be placed with father in northern California, pointing out that he had extended family, a healthy support system, employment and medical insurance.
The court ordered the children removed from the care of their parents, and ordered DCFS to provide services.
Father filed a timely notice of appeal on March 15, 2011.
DISCUSSION
Father raises a single issue on appeal: whether the trial court violated father's due process right to a fair trial guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution when it asked the social worker questions on the witness stand. Father argues that this error was structural and therefore reversible per se.
Father acknowledges the court's power to call and question witnesses. However, father argues that the court's lengthy questioning of the social worker put the court in the position of advocate against father, rather than a neutral fact finder. Father argues that this type of questioning, and the appearance of bias it created, violates father's due process rights.
I. Authority for the court's interrogation of witnesses
Evidence Code section 775 authorizes the court to call and question witnesses:
"The court, on its own motion . . . may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witness were called and examined by an adverse party. Such witnesses may be cross-examined by all parties to the action in such order as the court directs."
A court's authority to interrogate witnesses has been discussed in the criminal context. In People v. Carlucci (1979) 23 Cal.3d 249, 255 (Carlucci), the Supreme Court noted that:
"'[I]f a judge desires to be further informed on certain points mentioned in the testimony it is entirely proper for him to ask proper questions for the purpose of developing all the facts in regard to them. Considerable latitude is allowed the judge in this respect as long as a fair
trial is indicated both to the accused and to the People. Courts are established to discover where lies the truth when issues are contested, and the final responsibility to see that justice is done rests with the judge.'"
The high court further noted that "'"[w]ithin reasonable limits, it is not only the right but the duty of a trial judge to clearly bring out the facts so that the important functions of his office may be fairly and justly performed." [Citation.]'" (Carlucci, supra, 23 Cal.3d at p. 256.)
In People v. Gates (1979) 97 Cal.App.3d Supp. 10, the court reaffirmed that "[t]he judge has the power and the duty to ask questions and in the case under review it was appropriate for the court to ask the questions posed by it to the witness. [Citations.]" (Id. at p. 13.) The Gates court articulated that "it is the better practice . . . for the judge to withhold his questioning or calling of a witness until after the parties have concluded their examination so as to give the parties a full opportunity to present all relevant evidence." (Ibid.) The only limitation on a court's power under Evidence Code section 775 is that the judge may not show partiality or bias in examining a witness. (Gates, at p. 13.) However, "allowing the parties the opportunity to call the witness or to interrogate prior to the judge doing so helps achieve the impartiality required." (Ibid.)
II. Cases finding a violation of due process based on judicial interrogation of witnesses
Father relies on four cases which address the issue of judicial officers questioning witnesses in juvenile dependency and delinquency matters. The first, Lois R. v. Superior Court (1971) 19 Cal.App.3d 895 (Lois R.), involved a proceeding adjudging a minor a dependent of the court under former section 600 based on a petition that had been filed by the Los Angeles Department of Public Social Services (the department). No member of the department or attorney representing the department was present at the hearing. Lois R. (mother) was present with her attorney. The referee in charge of the hearing interrogated and cross-examined witnesses. He also made objections to questions asked and ruled on objections and motions made by mother's counsel. (Id. at pp. 897-898.)
The Court of Appeal determined that the referee's conduct violated the parent's right to due process of law. The Court of Appeal objected to the referee assuming the "functions of advocate." (Lois R., supra, 19 Cal.App.3d at p. 903.) While acknowledging that the juvenile court should "have the prerogative properly granted to trial judges of questioning witnesses to clarify pertinent matters or even of calling some witnesses," the referee should not "feel free to present the county's case as a matter of course." (Id. at pp. 902-903.)
The matter before us is distinguishable from Lois R. Here, separate counsel was present for DCFS, for father, and for the children. Each party had its own advocate. The juvenile court did not present the county's case, nor did it have to. Instead, as expressly permitted by Lois R., the juvenile court was attempting to clarify a pertinent question: why DCFS was recommending placement with father in the face of so much evidence that the children would be at risk in father's care.
Next, father cites Gloria M. v. Superior Court (1971) 21 Cal.App.3d 525 (Gloria M.), which was decided shortly after Lois R. As in Lois R., the matter involved a petition filed by the department to adjudge children dependent children of the court. And as in Lois R., the mother was in court with counsel, but no member of the department was present. The referee conducted the questioning of the department's witnesses, cross-examined the witnesses of the parents, and throughout the hearing, ruled on objections and motions put by counsel and made and then ruled upon objections to questions asked by counsel. (Gloria M., supra, 21 Cal.App.3d at pp. 526-527.) The Gloria M. court found that, as in Lois R., the procedure violated the parent's right to due process, and that "not only must there be actual fairness in the hearing but there must be the appearance of justice." (Gloria M., at p. 527.)
The referee in Gloria M., like the referee in Lois R., undertook to present the department's case against the parent, doing direct examinations, cross-examination, as well as making and ruling on objections. Again, that was not the case in the present matter. Instead, the court here only questioned one witness, and those questions were specific, directed inquiries into the rationale behind the change in DCFS's recommendation.
In re Ruth H. (1972) 26 Cal.App.3d 77 (Ruth H.), involved a juvenile proceeding in which a minor had been charged with possession of a restricted dangerous drug. Again, no deputy district attorney was present and the juvenile court referee "not only presented the case filed by the probation officer but was required also to judge contested matters of fact and law. [Citation.]" (Id. at p. 86.) The Court of Appeal determined that "no actual bias or partiality was exhibited by the referee," but nevertheless followed the holdings of Lois R. and Gloria M. in deciding that "[t]he dual obligations thus placed on the referee violated . . . appellant's constitutional right to procedural due process." (Ruth H., at p. 86.) The Ruth H. court emphasized that "appearances are important." (Ibid.)
In the matter before us, the juvenile court did not need to take on the dual role of both advocate and neutral fact finder. Although DCFS sided with father, the children's counsel advocated vigorously against the position taken by father and DCFS. Therefore, unlike the cases described above, the proceeding did not give rise to the appearance of partiality that results when a judicial officer must act as the sole advocate against a parent.
In re Jesse G. (2005) 128 Cal.App.4th 724 (Jesse G.) is similarly distinguishable. There, a referee took on the role of "both judge and advocate" in a contested juvenile delinquency proceeding. The referee both presented and questioned the sole witness, then proceeded to adjudge the minor a ward of the court. (Id. at p. 726.) While there was a deputy district attorney present, the deputy district attorney declined to present the case against the minor and stated that the court should do so. The referee expressed surprise, but the minor's counsel appeared to agree. The referee therefore proceeded to question the single witness, the minor's mother. (Id. at p. 727.)
Citing all of the cases we have discussed here, the Jesse G. court concluded that the "dual obligations placed on the referee here violated appellant's constitutional right to procedural due process. [Citations.]" (Jesse G., supra, 128 Cal.App.4th at p. 730.) The court declined to scrutinize the record to evaluate actual fairness, but held that the due process violation was reversible per se in the context of that case:
"'[I]f the petition is contested, the case against the minor should be presented by the probation officer or some other qualified representative of the county. If the judge or referee takes over the hearing, conducting the examination of witnesses, making objections to questions of counsel for the minor or parent, and ruling on objections and motions, he improperly assumes the functions of an advocate. The proceeding is therefore a denial of due process, . . . and an adjudication in such a hearing is reversible error per se.' [Citation.]" (Id. at p. 731.)
While a deputy district attorney was present in court in Jesse G., the deputy district attorney did not participate as an advocate in the matter, leaving that role to the referee. These circumstances are distinguishable from the matter before us, where each party's attorney actively participated in the proceedings and vigorously represented his or her client's interests.
III. Application of the law to this case
We find that under the circumstances of this case, the court's questioning of the social worker did not violate father's due process right to a fair trial. Significantly, as discussed above, each party was represented by counsel. The court was not required to present a case against father; counsel for the children took the position that the children should not be released to father, and advocated that position against both father and DCFS.
Further, the court only questioned the social worker after she was questioned and cross-examined by county counsel, the children's counsel, and father's counsel. This shows that the questions asked by the court were for the purposes of clarifying points that had not been raised by any of the parties. In fact, the court's questions were specifically directed towards clarifying DCFS's change of position regarding its recommendation as to father. The court pointed to evidence submitted by DCFS throughout the history of the case: the upfront assessment; the section 300 petition; the jurisdictional report; and the family's prior history with DCFS, among other things.
A review of the record shows that clarification of the rationale behind DCFS's position was not unwarranted. There was evidence that father had a long history of domestic violence, as well as neglect towards his children. He failed to provide anything other than financial assistance to mother, who was psychologically impaired and used alcohol excessively. He neglected the medical needs of Max, who had a severe speech impediment. Father had been placed on a 5150 hold that was unexplained, and a doctor who performed a recent psychological evaluation of father concluded that the children should not be returned to him right away. It appears that the court was reluctant to disregard DCFS's most recent recommendation without a clear understanding of the reasons for DCFS's decision to overlook the overwhelming evidence that the children would be at risk if placed with father.
The court's questions gave the social worker an opportunity to clarify the reasoning behind DCFS's recommendation. The questions were directed to determining the truth and ensuring that the children's interests were best served. This responsibility ultimately "'rests with the judge.'" (Carlucci, supra, 23 Cal.3d at p. 255). Indeed, as minors point out, the court need not have given the social worker this opportunity to clarify her position, which was at odds with the facts of the case. The court understandably undertook to further educate itself prior to rendering its decision. A fair and neutral judicial officer need not decline to ask pointed questions to clarify unexplained discrepancies in the record; nor should a fair and neutral judicial officer blindly accept the recommendation of DCFS when that recommendation appears to be questionable, if not irresponsible.
Father points to the following statement made by the court in rendering its decision: "[T]he Department wanted an outcome here for their numbers. I can imagine what the social worker and the Department wanted here, and what their reasoning was to get here. And that nothing was going to stand in the way of that recommendation." Father argues that this statement made the court's bias clear by suggesting that DCFS had an alternate agenda. Because of the alleged actual bias exhibited by this statement, father requests that the case be remanded for a new hearing before a "fair and neutral" judicial officer.
Critical comments and "expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom" do not demonstrate bias. (People v. Guerra (2006) 37 Cal.4th 1067, 1111.) A judicial officer "'will normally and properly form opinions on the law, the evidence and the witnesses, from the presentation of the case. These opinions and expressions thereof may be critical or disparaging to one party's position, but they are reached after a hearing in the performance of the judicial duty to decide the case, and do not constitute a ground for disqualification.' [Citation]." (Haldane v. Haldane (1965) 232 Cal.App.2d 393, 395.) The court's comment regarding DCFS's motive was made after all of the evidence had been presented in the case, as the court was rendering its decision. The court concluded that "There is beyond clear and convincing evidence here of risk, if these children were sent back [to live with father]." Under the circumstances, the court's verbal critique of DCFS's judgment and possible ulterior motive for sending the children to live outside Los Angeles County with father in Merced County does not demonstrate any bias inconsistent with judicial objectivity.
Father also points out that the court did not sustain any objections to its own questioning. However, father does not contend that any of those objections should have been sustained. Therefore, we assume each objection was properly overruled.
Father has failed to show that he was denied due process of law under the circumstances of this case. Because we find that no due process violation occurred, we need not address the parties' competing positions as to whether such error should be considered structural error in the context of dependency proceedings.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
CHAVEZ, J.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.