In Re Thomas R.

Robert R. is the father of eight-year-old Daniel and 13-year-old Thomas. M.R. is Daniel's mother. Both parents appeal an order terminating their parental rights on the ground that they were denied the opportunity to cross-examine the social service agency's witnesses who testified the boys were adoptable. We hold that a parent who is a party to a hearing conducted pursuant to Welfare and Institutions Code section 366.26 [1] has a due process right to conduct examination and test the sufficiency of evidence offered by a social service agency on the issue of adoptability, an issue on which the agency bears the burden of proof. In this case, we find the error of disallowing examination to be prejudicial, and reverse and remand for a new permanency planning hearing.

The facts leading up to the permanency planning hearing are set forth in detail in our unpublished opinion denying both parents' writ petitions pursuant to rule 39.1(b) of the California Rules of Court. In summary, the parents have a volatile relationship and a history of drug addiction; Robert has an extensive criminal history. The children were detained in foster care when Thomas was 11 and Daniel was five…