In People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court clarified the application of the hearsay rule to information contained in the testimony of an expert at trial.  In short the ruling holds that while experts may testify to general background information in their field, when they relate (or rely on) case specific out of court statements that they are relying on  as true, those statements are hearsay and cannot be admitted.   If the expert’s opinion is based on those statements, the opinion itself is barred.  In the past courts would avoid the bar claiming the statements were received not for the truth of the matter asserted but merely as the basis of the expert’s opinion.  Sanchez specifically bars this clever ruse.

A child custody evaluation conducted pursuant to Fam. Code sec. 3111 that contains the content and follows the procedures required by California Rules of Court rule 5.220 et. seq., must contain hearsay and must rely on that hearsay as a part of the basis of the opinion given.  So are CCEs gone as a tool for courts absent stipulation from both parties?  In this article I argue, no, that is not the case.

Although Sanchez is a criminal case that was, in part, based on a constitutional limitation (the confrontation clause) not applicable in civil cases, Courts of Appeal have already found it applies to civil cases.   And, although nothing is final until the Supreme’s weigh in, that avenue to attack Sanchez is extremely likely to be unavailing.  So why aren’t CCEs an endangered species?

Until some constitutional limitation comes into play, what is admissible in evidence or not admissible is up to the legislature.  They have the power to exempt some kinds of evidence from the hearsay rule and they have, in fact, done that.  An example is Welfare and Institutions Code sec. 355.  That section deals with the jurisdictional hearing in a juvenile court dependency case.  It specifically states that a social study, prepared by the county social worker and “hearsay evidence contained in it” is admissible (with some limitations, not relevant here).

But FC 3111 does not have a specific waiver like W&I 355.  So are we out of luck?  Again, the answer is no.  Other codes also provide for these types of “investigative” reports to be submitted to the court under rules that clearly require that the reports will contain hearsay and those sections do not have W&I section 355’s specific waiver.  Two examples are Probate Code sec.1513 and Family Code sec. 8715.

Probate Code section 1513, deals with guardianships and requires a court investigator to be appointed who must prepare and submit to the court a report and recommendation concerning the guardianship (sound familiar?).  The code section spells out some required content of the report which, effectively, requires it to contain hearsay (for example medical and school records are to be   reviewed).  The court is required to read and “consider” the report but the code section has no discussion at all of the hearsay issue.

Family Code section 8715 deals with adoptions and requires the reviewing agency to submit a “full report of the facts” to the court.  These are some of the facts the court will rely on in granting or denying the adoption petition and once again, no specific hearsay waiver is mentioned.

If the court is allowed, or even required, to consider these reports and if the required content of the report guarantees they will contain hearsay and if there is no explicit waiver of the hearsay rule, then how does the court have the ability to base ruling on the information contained in the report?  The answer is there is an implied waiver of hearsay in these cases.  Even though they didn’t say it, the legislature intended it.  Am I just making that up because I want the help trained professionals can give me in these difficult cases?  No.  The Supreme Court made it up.  In the case of In re Malinda S. (1990) 51 Cal.3d 368, 372, the court said, “DSS correctly observes that exceptions to the hearsay rule are not limited to those enumerated in the evidence code we must construe those provisions to determine whether they implicitly create hearsays exceptions for social studies.”

The bottom line is where the legislature has turned to courts to determine and protect what is in the best interest of children they have determined there should be a method to get the court as much helpful information as possible.  That method should not be fully dependent on the quality of representation, should be more streamlined than having to call every teacher, soccer coach, medical provider, etc., as a witness and should have a degree of neutrality that can be provided by a neutral, trained third party.  These “investigations” are a special category of evidence and cut across various codes and categories of litigation.  What they have in common is the recognition that children need a special kind of protection, one that isn’t subject to all the rules of our adversary system of determining truth.  In Dahl v. Dahl (1965)237 Cal.App.2d 407, some history of this investigative mode as it is applied to custody evaluations is reviewed by the court affirming the receipt of  a probation department report in a custody case.

Hopefully the legislature will give greater clarity to the area of evaluations and the admissibility of the report and/or the testimony of the evaluator.  But until then claim the special status these investigations have historically been given.