Are Social Studies (That Contain Hearsay) Admissible As Evidence ?

In In re Malinda S. the Supreme Court addressed a contention raised with respect to the admissibility at a section 300 hearing of social studies that "contain hearsay and even multiple hearsay." (In re Malinda S. (1990) 51 Cal. 3d 368, 372-373, 375-379, 272 Cal. Rptr. 787, 795 P.2d 1244 (Malinda S.).) The provisions relevant to the court's analysis were section 281 and California Rules of Court, rule 1450(c) (rule 1450(c)). ( Malinda S., supra, 51 Cal. 3d at pp. 376-379.) Section 281 provides that "the probation officer shall upon order of any court in any matter involving the custody, status, or welfare of a minor or minors, make an investigation of appropriate facts and circumstances and prepare and file with the court written reports and written recommendations in reference to such matters. the court is authorized to receive and consider the reports and recommendations of the probation officer in determining any such matter." (Malinda S., supra, 51 Cal. 3d at p. 376, quoting section 281.) At the time of the Malinda S. decision, rule 1450(c) provided as follows: "A social worker's report that contains information relevant to the jurisdiction hearing shall be admissible if, on request of the parent or guardian, the probation officer or social worker is made available to be cross-examined regarding the contents of the report." (Malinda S., supra, 51 Cal. 3d at p. 376, quoting California Rules of Court, rule 1450(c).) The Supreme Court explained that "neither [section 281 nor rule 1450(c),] explicitly creates an exception to the hearsay rule." (Malinda S., supra, 51 Cal. 3d at p. 376.) The court considered, however, whether these provisions "implicitly create hearsay exceptions for social studies" and concluded that they do. (Malinda S., supra, 51 Cal. 3d at pp. 376-377, 382, citations omitted, italics added.) The Supreme Court has noted that the holding in Malinda S. has been partially codified and partially modified by 1996 amendments to section 355. (In re Cindy L. (1997) 17 Cal. 4th 15, 22 fn. 3, 947 P.2d 1340.) Despite the modification of section 355, Malinda S. remains authority for the type of analysis performed and the type of factors considered when inquiring whether a statute creates an implicit exception to the hearsay rule. In reaching that conclusion, the court reviewed its earlier decision in Daniels v. Department of Motor Vehicles (1983) 33 Cal. 3d 532, 189 Cal. Rptr. 512, 658 P.2d 1313 (Daniels), where it concluded that the Department of Motor Vehicles could not rely on hearsay in accident reports as the sole basis for a license suspension. (Malinda S., supra, 51 Cal. 3d at p. 377.) The Malinda S. court distinguished Daniels, in part because "unlike a report filed by one of the drivers involved in an accident, . . . social studies . . . are prepared by disinterested parties in the regular course of their professional duties. These elements of objectivity and expertise lend them a degree of reliability and trustworthiness not present in Daniels." (Id. at p. 377, fn. omitted.) The court also concluded that the language of section 281 "provides greater indication of legislative intent both to admit the relevant report and to allow a court to rely on it in reaching a decision" than the Vehicle Code section at issue in Daniels which merely provided that the DMV "'shall consider its official records.'" (Malinda S., supra, 51 Cal. 3d at p. 377.) Lastly, the court noted that "[a] further distinction between Daniels, supra, 33 Cal. 3d 532, and the [Malinda S.] case is that the suspended driver in Daniels was not given an opportunity to cross-examine the preparer of the report," a right ensured to the parent or guardian by California Rules of Court, rule 1450(c). (Malinda S., supra, 51 Cal. 3d at p. 378.)