San Deigo County Health & Human Services Agency v. Kelly S.
San Deigo County Health & Human Services Agency v. Kelly S.
Opinion of the Court
Opinion
Kelly S. appeals the dispositional judgment in the dependency case of her daughter, Madison T. Kelly contends the juvenile court abused its discretion by admitting prejudicial hearsay evidence, and thus we must reverse the order placing Madison in foster care. We affirm.
In September 2012, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for one-month-old Madison. (Welf. & Inst. Code, § 300, subd. (b).)
Madison was detained in a foster home. On September 20, 2012, Kelly entered residential substance abuse treatment at North County Serenity House (Serenity House). On September 25, Serenity House substance abuse coordinator Andrea Kinley told social worker Judy Wonders
The jurisdictional and dispositional hearing began at 9:00 a.m. on Tuesday, October 23, 2012. Wonders testified she had left a message for Kinley, requesting an update on Kelly’s progress. Wonders then received a voice mail message from Kinley on Monday, October 22, Wonders’s day off. Wonders retrieved the message the morning of the hearing. Over a hearsay objection by Kelly’s counsel, Wonders testified to the content of Kinley’s message. Kinley said “that [Kelly] is not ready to have Madison placed in her care at this time; that [Kelly] has not made enough progress in treatment; an[d] that [Kelly] is . . . still in denial of her addiction; and that [Kelly] has not gained enough insight about her addiction . . . .” Kinley related her “concerns about [Kelly]’s behavior” and said Kelly “is on contract for having outbursts during groups, yelling at staff and peers . . . .”
The court made a true finding on the petition.
DISCUSSION
Kelly contends the court abused its discretion by allowing Wonders to testify to the content of Kinley’s voice mail message. Kelly contends “[t]he admission of . . . Kinley’s out-of-court declaration . . . was particularly egregious because [her] counsel had no warning that this last minute declaration existed,” so counsel had no opportunity to speak with Kinley or otherwise investigate. The court did not abuse its discretion by admitting the testimony. (See In re Tasman B. (1989) 210 Cal.App.3d 927, 936 [258 Cal.Rptr. 716].)
“Before determining the appropriate disposition, the court shall receive in evidence the social study of the child made by the social worker, any study or evaluation made by a child advocate appointed by the court, and other relevant and material evidence as may be offered . . . .” (§ 358, subd. (b).) “At the . . . dispositional phase, any relevant evidence including hearsay shall be admitted pursuant to section 358, subdivision (b) to help the court determine the child’s best interests.” (In re Corey A. (1991) 227 Cal.App.3d 339, 347 [277 Cal.Rptr. 782] (Corey A.).)
Even if the admission of Wonders’s testimony had constituted error, it would not have been prejudicial. The uncontested jurisdictional findings provide substantial evidence that it was necessary to remove Madison from Kelly’s custody. In its dispositional ruling, the court cited information from Serenity House, and noted the case was complex because Kelly had “to address mental health issues, domestic violence issues, and substance abuse issues . . . concurrently.” At the time of the hearing, Kelly had been sober for fewer than three weeks. In the report filed on October 19, 2012, Wonders related a conversation with Kelly that had taken place on October 18, just five days before the hearing. Kelly told Wonders that she had spoken “with her counselor and [was] on the waiting list for a room with a crib[, but] her counselor told her that she should wait another month to stabilize and get enrolled into her case plan services before asking to have Madison placed in the program. However, if Madison needed to be place[d] prior to the month she would consider placement sooner if needed.”
DISPOSITION
The judgment is affirmed.
McIntyre, J., and O’Rourke, J., concurred.
All further statutory references are to the Welfare and Institutions Code.
Wonders had been a social worker for more than 10 years.
Kelly does not challenge the jurisdictional finding.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.