BROUSSARD, J. I respectfully dissent.
In its introductory sentence, the majority opinion poses the issue before us as “whether a juvenile court may rely on ‘social studies’ prepared by a social worker when determining whether a minor falls within its jurisdiction under Welfare and Institutions Code section 300, subdivision (d).” (Maj. opn., ante, pp. 372-373, italics added, fns. omitted.) The opinion, however, goes on to hold not simply that a juvenile court may properly rely on a social study or probation report in determining whether a child is a depen[386]dent child for purposes of Welfare and Institutions Code section 300,1 but rather that a juvenile court may rely solely on such a study or report in making its dependency determination, even if the report consists entirely of hearsay or multiple hearsay statements that would not ordinarily be admissible in the trial of a civil case, and even if there is no other evidence that would ordinarily be admissible in the trial of a civil case that supports the finding of dependency.
In my view, the majority’s conclusion is inconsistent with the language and legislative history of section 355. I agree with the majority that under section 355 a social study or probation report is admissible at a dependency hearing and may be considered by the juvenile court in making its dependency determination. The provision’s terms and background make it clear, however, that while the Legislature intended to permit the juvenile court to consider such material in making its determination, it also intended to require that a finding of dependency be supported by sufficient evidence, of a type traditionally admissible in the trial of a civil case, to ensure that the dependency determination meets a minimum level of reliability. In my view, the majority fails to follow this legislative mandate in concluding that a dependency determination may be based solely on a probation report or social study even if the report or study consists entirely of statements that would not ordinarily be admissible in a civil trial.
I
I agree with the majority opinion that the question whether a juvenile court may base its determination of dependency solely on the contents of a social study or probation report turns on the proper interpretation of section 355.2 Section 355 provides in relevant part: “At the jurisdictional [387]hearing, the court shall first consider only the question whether the minor is a person described by Section 300, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him or her within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300 . . . .” (Italics added.)
[388]Although the procedural structure created by section 355—combining a relaxed rule of admissibiity of evidence with a requirement that the tribunal’s ultimate finding or determination be supported by evidence that meets the more traditional standards of admissibility—is somewhat unusual, it is by no means unique. Indeed, while the majority opinion does not advert to the fact, the provisions of section 355 are closely analogous to the provisions of one of the basic sections of the California Administrative Procedure Act, Government Code section 11513, subdivision (c). That section, which applies generally to all administrative hearings governed by the Administrative Procedure Act, provides? in relevant part: “The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of their serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions . . . .” (Italics added.) This statutory provision was enacted in 1945 and codified a line of earlier California decisions. (See, e.g., Walker v. City of San Gabriel (1942) 20 Cal.2d 879, 881-882 [129 P.2d 349, 142 A.L.R. 1383]; Steen v. Board of Civil Service Commrs. (1945) 26 Cal.2d 716, 726-727 [160 P.2d 816].)
The reasons that led the Legislature to adopt this type of procedural framework for dependency proceedings are clearly illuminated by the legislative history of section 355. The applicable language of section 355 is derived directly from section 701, which was initially enacted in 1961 as part of a comprehensive revision of the juvenile court law.3 The 1961 legislation was in large measure the culmination of the work of a Special Study Commission on Juvenile Justice that was appointed by the Governor in 1958 to survey the entire juvenile justice system and to submit appropriate recommendations for changes. In 1960, the commission submitted a lengthy report and a set of recommendations for a comprehensive overhaul of the [389]juvenile justice system. The procedural Framework established by section 701, now embodied in section 355, was one part of the commission’s recommendations.
In explaining the rationale for the proposed procedural structure, the commission report observed: “A characteristic of California’s juvenile courts is the pronounced absence of uniformity of court procedures. This is a natural consequence of the extremely vague procedural references in the present law .... [If] The problem in attempting to establish acceptable juvenile court procedures is to attain a worthing balance between two essential objectives—first, preserving the guarantee of due process to the minor; and second, establishing an informal court atmosphere so that potentially harmful effects of the proceedings are minimized and the minor’s receptivity to treatment is encouraged, [fl] The Commission believes that these objectives can be attained by applying rules of evidence routinely observed in the trial of any other cause in a court of law with one important modification, that such rules are to be applied only to test sufficiency of evidence and not to be- applied as rules of admissibility. Thus, any matter relevant and material to the past or present conduct, welfare, or care of the minor, and any matter material and relevant to the acts or circumstances which are alleged to bring him within the court’s jurisdiction, should be received in evidence. However, competent evidence, not subject to timely objection by competent counsel, must be adduced to support a finding of wardship, [fl] All of the reasons for employing rules of evidence in other judicial proceedings, e.g., to insure truthful, reliable, and fair testimony, apply with equal force to a hearing on a minor’s delinquency or a hearing in which a child may be removed from his family because of parental neglect.” (Rep. of the Governor’s Special Study Com. on Juvenile Justice, pt. I (1960) pp. 29-30, original italics.)
As the report’s comments demonstrate, the objective of section 355’s procedural structure is two-fold. First, the procedure is intended to permit the juvenile court to consider any matter that might be material to the dependency issue, without regard to the matter’s admissibility in an ordinary judicial action, in order to assure that the court has access to all information that might bear on the welfare of the child. Second, the procedure is intended to preserve to the affected child and parents a measure of the traditional protection of reliability and fairness provided by the ordinary rules of evidence. The procedure attempts to achieve this second objective by requiring that a finding of dependency be supported by sufficient evidence of the type traditionally admissible in a judicial action.
In light of the language and purpose of section 355, I agree with the majority that a probation report or social study is admissible in a dependen[390]cy proceeding and may be fully considered by the juvenile court in making its dependency determination.41 cannot agree, however, with the majority’s further conclusion that a probation report or social study, even if it consists entirely of hearsay, multiple hearsay or other material that would not be ordinarily admissible in a civil trial, is sufficient, in itself, to support a finding of dependency. That conclusion, in my view, is irreconciliable with the requirement of section 355 that a finding of dependency be supported by “proof by a preponderance of evidence, legally admissible in the trial of civil cases . . . .”
II
In arriving at a contrary view, the majority reasons that, in light of the provisions of section 281, a probation report or social study, even if based entirely on hearsay or other inadmissible evidence, should properly be considered evidence that is “legally admissible in the trial of civil cases” within the meaning of section 355.5 With all respect, I cannot agree that this interpretation is faithful to the language or purpose of section 355.
[391]By its terms, section 281 does not establish that a probation report or social study is, as a general matter, legally admissible evidence in the trial of ordinary civil cases in this state. Section 281 provides in full: “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(Italics added.)
Although the language of section 281 makes it clear that a court may “receive and consider” a probation report or social study in those cases involving the custody, status or welfare of a minor in which the court requests such a report or study, the section does not purport to provide that such a report or study is sufficient in itself to support a dependency determination or that such a report or study is, in general, legally admissible in ordinary civil cases without regard to the traditional rules of evidence.
It is true, of course, that many of the judicial actions to which section 281 refers—i.e., “matters involving the custody, status or welfare of a minor or minors”—are “civil cases,” and thus, by virtue of section 281, a probation report or social study is “legally admissible” in some civil cases. But in light of both the language and history of section 355, it is clear, in my view, that this is not what the Legislature had in mind when it referred to the category of “evidence legally admissible in the trial of civil cases” in section 355.
To begin with, a reading of section 355 as a whole establishes beyond question that the Legislature did not intend the reference in section 355 to “legally admissible” evidence to be satisfied whenever the evidence in question was admissible in some type of civil action. Because section 355 itself authorizes the admission of any evidence in a dependency proceeding, and because a dependency proceeding is itself a “civil case,” such an interpretation would effectively read the clause requiring proof by a preponderance of “legally admissible” evidence out of the statute altogether.
The majority opinion acknowledges that evidence that is admissible only by virtue of the relaxed admissibility standard of section 355 should not be considered “legally admissible” evidence for purposes of the provision’s limitation. The majority suggests, however, that because a probation report or social study is rendered admissible by some statute other than section 355, such a report or study should be considered evidence that is “legally admissible in the trial of civil cases” for purposes of section 355 even though such material may properly be admitted and considered in only a discrete set of civil cases.
[392]In my view, the legislative history reviewed above demonstrates that the majority’s suggested interpretation is not faithful to the legislative intent underlying section 355. As we have seen, in proposing the adoption of this procedural framework in 1960, the Governor’s Special Study Commission on Juvenile Justice explained that it believed that an acceptable balance between establishing an informal court atmosphere and preserving the essential guaranties of due process could be attained “by applying rules of evidence routinely observed in the trial of any other cause in a court of law with one important modification, that such rules are to be applied only to test sufficiency of evidence and not to be applied as rules of admissibility . . . . [fl] All of the reasons for employing rules of evidence in other judicial proceedings, e.g., to insure truthful, reliable, and fair testimony, apply with equal force to ... a hearing in which a child may be removed from his family because of parental neglect.” (Rep. of the Governor’s Special Study Com. on Juvenile Justice, pt. I, supra, at p. 30, italics added and omitted.)
As this language suggests, the reference in section 355 to evidence that is “legally admissible in the trial of civil cases” was intended to refer to evidence that is routinely admissible in the trial of any civil case, not to the kind of specialized rule of admissibility embodied in section 281. Given the purpose of section 355 to combine a very liberal rule of admissibility of evidence with a requirement that there be sufficient evidence of a type traditionally admissible in a civil case to support a finding of dependency, the fact that the Legislature, in section 281, has chosen to permit a trial court to elicit the aid of the probation officer or social service department in investigating the circumstances of a child whose custody or welfare is at issue and has authorized the court “to receive and consider” a report or social study prepared by those authorities, does not mean that such a report or study, in itself, is sufficiently reliable to constitute the sole basis for a dependency determination. (Accord Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532 [189 Cal.Rptr. 512, 658 P.2d 1313] [although specific statute authorized the Department of Motor Vehicles (DMV) to “consider its official records” at formal hearings, under Gov. Code, § 11513, subd. (c), DMV still could not rely on hearsay in accident report as sole basis for a license suspension].) Indeed, the majority’s holding in this regard appears particularly anomalous because it apparently permits a court to rely solely on inadmissible hearsay or multiple hearsay statements if such statements are contained in a report or study prepared by a probation officer or social worker, even though the court could not rely solely on such statements if they were introduced through the direct testimony of the probation officer, social worker or some other expert witness. (Cf. In re Cheryl H., supra, 153 Cal.App.3d 1098, 1118-1125, 1132-1133 [testimony of examining child psychiatrist that did not fall within hearsay exception [393]could not be considered in determining whether there was suEcient legally admissible evidence to support dependency finding].)
Finally, it is perhaps worth noting that while section 355 makes it clear that a social service department may not rely solely on a probation report or social study to support a dependency petition but must introduce some traditionally admissible evidence to support such a petition, the Legislature has enacted a number of additional provisions to lighten the potential burden on both the department and the affected child in a dependency proceeding. Section 355.1, for example, provides that where the juvenile court finds, “based upon competent professional evidence,” that the child has sustained an injury that would ordinarily not be sustained except as the result of the unreasonable or neglectful acts of the person who has the care or custody of the minor, that evidence constitutes “prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300,” shifting the burden of producing evidence on the issue to the child’s custodian. In this case, the department could have triggered the operation of section 355.1 simply by having the doctor who examined the child present “competent professional evidence” of her findings. Furthermore, section 350, subdivision (b) expressly authorizes a juvenile court in a dependency proceeding to permit a child to testify in chambers and outside the presence of the child’s parent or parents if the court finds either that the child is afraid to testify in front of his parent, that the child is likely to be intimidated by a formal courtroom setting, or simply that such testimony in chambers is necessary to ensure truthful testimony. Here, “legally admissible evidence” from the child could have been adduced outside the presence of her father under the aegis of this section.
Ill
As the statement of facts in the majority opinion reveals, in this case the department of social services did not rely solely on its social study but also introduced the testimony of the child’s mother, who presented some legally admissible evidence in support of a finding of dependency. In making its dependency determination, however, the trial court referred only to the contents of the social study and provided no indication that it was aware that the study was not “legally admissible evidence” for purposes of section 355’s standard-of-proof requirement.
As I have explained, while I agree with the majority that the trial court did not err in admitting the social study into evidence and in considering the study in making its dependency determination, I cannot agree that the dependency determination may be sustained even if it was based solely on inadmissible hearsay statements contained in the study.
[394]Accordingly, I would reverse the judgment of the Court of Appeal with directions to remand the matter to the trial court for reconsideration in light of the appropriate interpretation of section 355.
Mosk, J., concurred.
Unless otherwise indicated, all further section references are to the Welfare and Institutions Code.
The conclusion that the question is controlled by section 355 is, however, not as self-evident as may appear from the majority opinion. By its terms, section 701, as well as section 355, appears to govern the admissibility of evidence and the standard of proof applicable at the jurisdictional hearing of a dependency proceeding. And while section 701, like section 355, provides that “a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Section 300 . . . ,” section 701, unlike section 355, appears to limit the admissibility of evidence in such a proceeding by providing that “[t]he admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision.” At least one Court of Appeal decision has viewed section 701 as limiting the admissibility of evidence at a dependency hearing to evidence admissible under the Evidence Code. (See In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1115 [200 Cal.Rptr. 789].)
From my review of the legislative history of sections 355 and 701, however, I agree with the majority opinion that section 355 should be viewed as the controlling statute in this con[387]text. Although the analysis of the relevant legislative history is somewhat lengthy, in view of the conflicting language of sections 355 and 701 it seems appropriate to explain why section 355 controls.
The confusion in the current statutory scheme dates to 1976, when two bills amending section 701 were enacted and signed into law on the same date. (See Stats. 1976, ch. 1068, § 48, p. 4789; Stats. 1976, ch. 1071, § 27, p. 4825.)
Chapter 1068 of the 1976 Statutes—the “Arnold-Kennick Juvenile Court Law” (see Stats. 1976, ch. 1068, § 1.5, p. 4741)—embodied an overall reform of the juvenile court law. As part of that general reform, chapter 1068 moved the statutory provisions dealing with dependency proceedings—proceedings that were formerly designated section 600 proceedings—to a new article beginning with section 300. In line with that revision, the act removed the newly designated section 300 cases from the ambit of section 701 (Stats. 1976, ch. 1068, § 48, p. 4789), and added a new section, section 355, to govern the admissibility of evidence and standard of proof at the jurisdictional phase of dependency proceedings. (Stats. 1976, ch. 1068, § 9, p. 4771.) As enacted, section 355 precisely tracked the language of the relevant portions of the pre-chapter-1068 version of section 701.
At the same time as it enacted chapter 1068 of the 1976 Statutes, the Legislature also adopted chapter 1071 of the 1976 Statutes, an omnibus bill that included, as one of its many varied provisions, a revision of the pre-chapter-1068 version of section 701. (See Stats. 1976, ch. 1071, § 27, p. 4825.) As amended and reenacted in chapter 1071, section 701 still referred to dependency cases by their former designation as section 600 cases but added the new language, referred to above, that provides that “[t]he admission and exclusion of evidence shall be pursuant to the rules of evidence established by the Evidence Code and by judicial decision.”
Because the version of section 701 contained in chapter 1071 of the 1976 Statutes referred to dependency cases by their old designation as section 600 cases, it is apparent that this section of the omnibus legislation was drafted without consideration of the overall changes in the treatment of dependency cases contemplated by chapter 1068 of the 1976 Statutes. And while section 701 was amended the following year to substitute section 300 for the section’s outdated references to section 600 (see Stats. 1977, ch. 579, § 196, p. 1922), there is nothing in either the enactment of chapter 1071 in 1976 or in the 1977 amendment to suggest that the Legislature intended to repeal or modify the provisions of section 355 as that section applies to dependency proceedings. In 1987, the Legislature reenacted section 355 with only minor changes not relevant here.
From this chronology, I conclude that while the current provisions of both sections 355 and 701 purport to apply to the jurisdictional hearing of a dependency proceeding, the inclusion of dependency proceedings in the present version of section 701 is simply a product of legislative oversight, and cannot properly be found to have impliedly repealed the contrary and more specific provisions of section 355 that were intended to apply exclusively to dependency proceedings. Accordingly, I agree with the majority opinion that section 355 must properly be viewed as the section that controls the admissibility of evidence and the standard of proof at the jurisdictional phase of a dependency proceeding.
As enacted in 1961, section 701 provided in relevant part: “At the hearing, the court shall first consider only the question whether the minor is a person described by Sections 600, 601, or 602, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, a preponderance of evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602, and a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Sections 600 or 601.” (Stats. 1961, ch. 1616, § 2, p. 3482, italics added.) As explained above (see ante, pp. 386-387, fn. 2), prior to 1976 the “dependent child” provisions currently found in section 300 were contained in section 600.
Some confusion with respect to the court’s authority to consider inadmissible evidence in making its dependency determination may have resulted from language in In re Donald R. (1987) 195 Cal.App.3d 703 [240 Cal.Rptr. 821], a decision that holds that a social study that consists entirely of inadmissible hearsay statements cannot in itself support a finding of dependency. In the course of its analysis, the Donald R. court stated: “[Ujnless hearsay in a social study falls within an exception to the hearsay rule, the juvenile court must disregard it, and focus exclusively upon admissible evidence, in determining whether dependency has been proved by a preponderance of the evidence.” (195 Cal.App.3d at p. 715, italics added.)
To the extent that this language suggests that the juvenile court, in making its dependency determination, must disregard all legally inadmissible evidence and may consider only legally admissible evidence, I cannot agree with that reading of the statute. In my view, section 355 permits a juvenile court to fully consider all of the evidence presented at the dependency hearing in determining whether the child should or should not be found to be a dependent child under section 300. Thus, even if a preponderance of the legally admissible evidence supports a finding of dependency, the juvenile court need not and should not assume jurisdiction over the child if the court is persuaded by the remaining, “legally inadmissible” evidence that the child is not a dependent child.
If the court is persuaded by all of the evidence before it that the child is subject to the court’s jurisdiction under section 300, however, section 355 requires the court to make a further determination, namely, whether there is sufficient legally admissible evidence to support the finding of dependency. The fact that the court must make this further finding with respect to the legally admissible evidence, however, does not mean that it must disregard any of the material contained in a probation report or social study in making its dependency determination.
Although the majority opinion also relies on rule 1450(c) of the California Rules of Court, for several reasons I do not believe it is necessary to address that rule separately. First, a judicially promulgated rule of court obviously cannot either expand or contract a statutorily based rule relating to the admissibility of evidence and cannot override a statutorily imposed requirement regarding the type of evidence necessary to support a statutorily prescribed finding. Second, because rule 1450(c) simply provides that a social worker’s report is admissible in a dependency proceeding, it does not add anything to the provisions of section 281.