In Re David H.
REARDON, J.*—On June 12, 2007, the juvenile court set aside the jurisdictional and dispositional orders in this dependency case because of conceded errors in complying with the Indian Child Welfare Act of 1978 (ICWA;
On January 7, 2007, appellant Karen F. (Mother) hit her son David (born 1999) with an electrical cord and belt 21 times.1 David had bruises, red marks, welts, and broken skin on his arms, back and chest and he told a social worker Mother had hit him in the past. Respondent Napa County Health and Human Services (Agency) placed David in protective custody, and Mother was arrested. Mother immediately informed the Agency she was a member of the Cherokee Nation.
On January 11, 2007, the Agency filed a petition pursuant to
At a February 6, 2007 jurisdictional hearing, Mother submitted on the social worker‘s reports, waiving her right to an evidentiary hearing. The court sustained the petition, but made no ICWA findings.
After a March 14 and 15, 2007 contested disposition hearing, the court found that ICWA “does or may apply,” that the Agency had made reasonable efforts to return David home and active efforts to prevent the breakup of the Indian family, that Mother had made minimal progress toward resolving the problems that led to David‘s removal, that by clear and convincing evidence there would be a substantial danger to David‘s physical health if he were returned to Mother‘s care, and that his return would likely cause him serious emotional or physical damage. The court continued David‘s removal from Mother‘s care and ordered reunification services for Mother, including a parenting class, an anger management class, therapy, a psychotropic medication evaluation, and a medical assessment for her menopause symptoms. The court ordered a minimum of two 2-hour visits a week between Mother and David.
Mother appealed from the disposition order. She argued there were multiple violations of ICWA in the proceedings, including inadequate notice to the Cherokee Nation of the jurisdiction and disposition hearings, lack of ICWA expert testimony, inadequate active efforts to prevent the breakup of the Indian family, failure to comply with ICWA placement preferences, and
Meanwhile, on May 8, 2007, in the juvenile court, the Agency filed a number of documents regarding its contacts with the Cherokee Nation and David‘s status as an Indian child. In a letter dated January 24, the Cherokee Nation (Tribe) informed the Agency that David was an Indian child because Mother was a member of the Tribe. The letter was mailed to the Agency‘s correct address but was written to the attention of a former director of the Agency and apparently was never received by the social worker assigned to David‘s case. On March 16, the social worker received a telephone message from the Tribe‘s ICWA representative, Nicole Allison, requesting information about the case. The social worker did not follow up nor did she pass on the message to the social worker who took over David‘s case. Allison, the social worker, her supervisor, and deputy county counsel exchanged phone messages until Allison at last made contact with the social worker and deputy county counsel on May 2. Allison then sent deputy county counsel a copy of the January 24 letter by facsimile transmission, confirming David‘s status as an Indian child. The Tribe formally intervened in the dependency proceeding on May 15.
On June 1, 2007,3 the Agency moved the juvenile court to set aside the jurisdictional and dispositional orders, advise Mother of her ICWA rights, and set a new jurisdictional and dispositional hearing on July 9. In an attached declaration, county counsel acknowledged the Agency had not given the Cherokee Nation 10 days’ notice of the jurisdictional and dispositional hearings or any notice of the contested dispositional hearing, had not advised Mother of her ICWA rights, and had not provided ICWA expert testimony at the dispositional hearing.
A hearing on the Agency‘s June 1, 2007 motion took place on June 12. At the outset of the hearing, Mother made a Marsden4 motion seeking substitution of appointed counsel. Mother‘s attorney agreed that her relationship with
The court then proceeded to make a number of rulings at the hearing. The court found that David was an Indian child and that ICWA applied to the case. The court advised Mother of her rights under ICWA, and Mother affirmatively stated that she did not wish to waive any of her ICWA rights. The court granted the Agency‘s June 1 motion, set aside the jurisdictional and dispositional orders, and scheduled new jurisdictional and dispositional hearings for July 9. The court also found that exceptional circumstances existed to justify holding the dispositional hearing more than 60 days from the date David was first detained and extraordinary circumstances existed to justify temporary emergency custody of David for more than 90 days following his initial removal. Finally, the court scheduled a June 19 hearing on the question of whether Allison could testify as an expert on Cherokee customs and practices by telephone at the July 9 hearing.
Chester did not appear at the June 19, 2007 hearing, and apparently had not been notified of the hearing. Over Mother‘s objections, the court granted the Agency‘s request to have Allison testify by telephone.
In a June 20, 2007 letter, Chester requested a continuance of the July 9 hearing due to preexisting vacation plans. Chester was leaving on vacation June 29 and would not be returning to work until July 11. The court continued the hearing to July 13.
On June 21, 2007, the Agency requested a June 26 hearing to discuss the availability of its ICWA expert. At the June 26 hearing, deputy county counsel said the July 13 hearing date had to be changed for two reasons: first, the Agency‘s ICWA expert was not available on that date, and second, the six-month deadline to hold the dispositional hearing under
The court set the hearing to commence on July 11, 2007, with the understanding the hearing might continue into other dates. Chester asked the court to schedule a hearing on June 28 so he could request appointment of counsel to file a writ petition to prevent the hearing from proceeding. The court set the hearing and asked the parties to brief the issue of whether July 11 was an absolute deadline and, if so, what were the consequences of not meeting that deadline.
At the June 28 hearing, the court first heard argument and testimony on the Agency‘s application for a temporary restraining order against Mother. The Agency told the court Mother had gone to David‘s foster home, banged on the doors and windows, and yelled for David to come out. The court denied the restraining order because of insufficient evidence but admonished Mother not to go to David‘s placement unannounced.
On the issue of the date of the jurisdictional and dispositional order, the parties told the court the statute clearly required the hearing to be completed, and not just commenced, by July 11. Chester renewed his request for dismissal of the case. He also asked to be relieved as counsel because he could not prepare for the hearing by July 11, and he added that in any event the relationship between him and Mother had broken down to the point that he could no longer represent her. Alternatively, David could be returned to Mother‘s care and the hearing postponed. The court relieved Chester of his representation of Mother. During the hearing, the court contacted another attorney, Jeffrey Hammond, who said he could prepare for the case in the two weeks before the July 11 hearing. The court appointed him to represent Mother and ordered Mother to go to his office that day to avoid further delays.
The jurisdictional and dispositional hearing took place on July 11, 2007. The court heard testimony from Mother‘s therapist, David‘s principal, the social workers who had worked on the case, an ICWA expert retained by the Agency, Allison, Mother‘s anger management counselor, and Mother. The court sustained the petition and declared David a dependent child, finding that the Agency had made reasonable efforts to return David home and active efforts to prevent the breakup of the Indian family, which were unsuccessful, that Mother had made minimal progress toward resolving the problems that had led to David‘s removal; and that by clear and convincing evidence there would be a substantial danger to David‘s physical health if he were returned to Mother‘s care and that it was likely his return would cause him serious
Mother appealed on July 26, 2007. On January 31, 2008, we dismissed Mother‘s appeal of the original disposition order (In re David H., supra, A117118) as moot in light of the juvenile court‘s June 12, 2007 ruling setting aside that order and scheduling a new jurisdictional and dispositional hearing. On April 9, 2008, in response to this court‘s request for an update on the status of the dependency case, the parties informed us that David had been returned to Mother‘s care in February 2008. We then asked the parties to brief whether any of the issues raised in this appeal had been rendered moot by this development. We address those arguments below.
DISCUSSION
We review questions of law de novo and factual findings for substantial evidence. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801 [35 Cal.Rptr.2d 418, 883 P.2d 960]; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [80 Cal.Rptr.2d 378].) “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547 [247 Cal.Rptr. 784].)
I. Detention Pending New Jurisdictional and Dispositional Hearings6
In her briefs on the merits, Mother argued the court erred when, on June 12, 2007, it extended David‘s detention until new jurisdictional and dispositional hearings could be held. She argued the court erred by finding there were exceptional circumstances justifying detention beyond a 90-day period under ICWA. (See
In her supplemental brief on mootness, however, Mother concedes that her challenge to the detention order is moot. She urges us to exercise our discretion to decide the issue because it is an important issue of public interest and is capable of repetition yet evading review. (See In re Raymond G. (1991) 230 Cal.App.3d 964, 967 [281 Cal.Rptr. 625].) We decline to do so.8
II. Lack of Representation at the June 12 and June 19 Hearings
Mother contends the court‘s proceeding with the June 12 and June 19 hearings, despite her lack of counsel, violated her constitutional and statutory rights. We review this alleged error to determine if it was harmless beyond a reasonable doubt.9
Mother first argues she was denied representation at the June 12, 2007 hearing, when the court extended David‘s detention until July 9 even though it had already relieved Mother‘s attorney of representation and it knew Mother‘s newly appointed attorney was not present. Assuming that Mother‘s lack of representation at this hearing was a violation of Mother‘s rights, we
Mother also argues she was denied representation at the June 19, 2007 hearing, when the court granted Allison permission to testify by telephone at the jurisdictional and dispositional hearing. Any error in Mother‘s lack of representation at this hearing was harmless beyond a reasonable doubt. Mother was represented at all subsequent hearings and her attorney could have, but did not, object to Allison‘s telephonic appearance. Moreover, Allison‘s testimony was limited and generally favorable to Mother. Her only unfavorable recommendation—against David‘s immediate return to Mother‘s care—was not reasonably subject to attack by in-person cross-examination.
III. Denial of Continuance of the Jurisdictional and Dispositional Hearing
Mother argues the court erred by denying counsel‘s request for a continuance of the jurisdictional and dispositional hearing to a date later than July 11, 2007. She argues that by setting the hearing on July 11, the court abused its discretion under
(1) The court did not abuse its discretion under
The court did not infringe on Mother‘s right to effective assistance of counsel. Chester had unusual personal circumstances that prevented him preparing for the hearing by July 11. He first learned of the necessity of holding the hearing by July 11 on June 25. His last day at work before his vacation was June 28, and his first day back would have been July 11. His prior work on the case had been limited to talking to Mother and Allison, starting research on ICWA law, responding to the request for a temporary restraining order, and addressing the scheduling issues mentioned above. He still had substantial work to do to prepare for the hearing and only about one day to do that work. Hammond, on the other hand, had two weeks to prepare for the hearing. Mother has not shown that two weeks was an insufficient time to prepare, and the record on appeal does not support such a finding. The record demonstrates that Hammond vigorously represented Mother‘s interests at the July 11 hearing and was familiar with the details of the case. Moreover, Chester represented on June 28 that his relationship with Mother had broken down for reasons he could not expressly put on the record. Mother did not object to this representation. Therefore, it does not appear that Mother was prejudiced by the change in counsel.
IV. Facial Sufficiency of Petition
Mother challenges the facial sufficiency of the petition, arguing it failed to allege that David faced a substantial risk of serious physical harm at the time of the July 11, 2007 hearing. For three reasons, her argument lacks merit.
First, Mother forfeited her argument by failing to raise it below.12 Although Mother argued at the July 11, 2007 hearing that the Agency should have prepared a new jurisdictional report with updated information about the risk of harm to David and that the Agency failed to demonstrate a current risk of harm at the hearing, those arguments addressed the sufficiency of the evidence produced in support of jurisdiction, not the sufficiency of the allegations in the petition. Mother never specifically challenged the sufficiency of those allegations.
There is currently a split in authority about whether a challenge to the sufficiency of a juvenile dependency petition is forfeited if it was not raised in the juvenile court. In In re Alysha S., the Third District observed that in civil actions an argument that a pleading fails to state a cause of action is not subject to forfeiture on this ground (
We agree with the holdings of In re Shelley J., supra, 68 Cal.App.4th 322, In re James C., supra, 104 Cal.App.4th 470, and In re S. O., supra, 103 Cal.App.4th 453, although the reasoning of the cases requires updating. First, former rule 39 has been repealed. (Historical note, Deering‘s Ann. Rules of Court (2006 supp.) foll. rule 39, p. 56 [former rule 39 repealed eff. Jan. 1, 2005].) The current version of the rule does not contain the language cited in In re Shelley J. and In re James C. (
Second, the holding in In re Jennifer R., supra, 14 Cal.App.4th at page 711—that the Civil Code and the Code of Civil Procedure do not apply to juvenile dependency proceedings unless specifically made applicable—has been rejected as an overstatement. In In re Claudia E., the Fourth District, Division One (which decided both In re Jennifer R., and a case relied on therein, In re Angela R., supra, 212 Cal.App.3d 257) recently reconsidered the issue. (In re Claudia E. (2008) 163 Cal.App.4th 627 [77 Cal.Rptr.3d 722].) The court concluded: “[T]he better view is that application of a statute outside the Welfare and Institutions Code (and not expressly made applicable) is not necessarily barred from dependency proceedings. Courts should determine whether the statute at issue is consistent with the overall purposes of the dependency system.” (Id. at p. 636.) The court distinguished or narrowly construed its earlier decisions. (In re Claudia E., at pp. 636-637.)13 The court also distinguished an intervening Supreme Court case, which had held:
The Third District also has rejected the broad holding in In re Jennifer R. (In re Mark B. (2007) 149 Cal.App.4th 61, 78-79 [56 Cal.Rptr.3d 697].) Like the Fourth District, the Third District concluded that In re Chantal S., supra, 13 Cal.4th 196, merely stated a general rule and “did not hold that provisions of other codes are inapplicable unless otherwise specified.” (In re Mark B., at p. 78.) In re Mark B. specifically holds that the provisions of part 1 of the Code of Civil Procedure (“Of Courts and Justice“) apply in juvenile dependency proceedings because they “provide for the fundamental empowerment of the courts, including the juvenile court.” (In re Mark B., at p. 78.) The court distinguished In re Chantal S., In re Jennifer R., supra, 14 Cal.App.4th 708, and In re Angela R., supra, 212 Cal.App.3d 257, because the statutes held inapplicable in those cases were from different parts of the Code of Civil Procedure. (In re Mark B., at p. 78.) In In re Angela R., for example, the statute at issue applied to civil “actions” governed by part 2 of the Code of Civil Procedure, whereas juvenile dependency cases are “special proceedings” governed by part 3 of the code. (In re Mark B., at p. 78; In re Angela R., at p. 273; see also In re Chantal S., at p. 200 [“Dependency proceedings in the juvenile court are special proceedings with their own set of rules ....” (italics added)].)
(2) We agree that a statute outside the Welfare and Institutions Code (that is not explicitly made inapplicable to dependency cases) applies in a dependency case if the statute applies to special proceedings such as juvenile dependency cases and if it is consistent with the overall purposes of the juvenile dependency system.
(3) Applying this updated rationale, we conclude that
Second, the statute is inconsistent with the purposes of juvenile dependency law. Allowing parties to challenge the facial sufficiency of a petition for the first time on appeal conflicts with the emphasis on expeditious processing of these cases so that children can achieve permanence and stability without unnecessary delay if reunification efforts fail. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307 [19 Cal.Rptr.2d 544, 851 P.2d 826].) Enforcing the forfeiture rule requires parties to raise such issues in the juvenile court where they can be promptly remedied without undue prejudice to the interests of any of the parties involved. (See In re S. O., supra, 103 Cal.App.4th at pp. 459-460; In re Jessica C., supra, 93 Cal.App.4th at pp. 1038, fn. 8, 1041-1042.)
(4) Had Mother raised her objection to the sufficiency of the petition at the July 11, 2007 hearing, the court could have allowed the Agency to amend the petition to conform to the proof offered at the hearing. (
Accordingly, we hold that
(6) Second, the allegation that David had suffered serious physical harm inflicted nonaccidentally by Mother was sufficient to establish jurisdiction. The plain language of
Mother cites cases suggesting that jurisdiction can only be established if the social services agency proves the child faces a substantial risk of harm at the time of the jurisdictional hearing. In re Rocco M., for example, held, “While evidence of past conduct may be probative of current conditions, the question under
In In re Rocco M., jurisdiction was alleged under
Despite these broadly worded statements, In re Rocco M. did not specifically address whether an allegation (or evidence) that a child “has suffered... serious physical harm” under the circumstances set forth in
Similarly, in the other cases cited by Mother, the prior alleged physical harm did not establish jurisdiction because it did not satisfy the requirements of
In re Nicholas B., the other case cited by Mother, also relied on In re Rocco M. for the rule that a petition alleging jurisdiction under
(7) We hold that, in the absence of unusual circumstances not present here (such as a substantial lapse of time between the incident and the filing of a petition or the date of a jurisdictional hearing), an allegation that a child has suffered serious physical harm inflicted nonaccidentally by a parent or guardian is sufficient to establish jurisdiction under
Here, the petition was facially sufficient because it alleged that David had suffered serious physical harm (bruises, red marks, welts, and broken skin on a seven-year-old boy) inflicted intentionally by Mother as a disciplinary measure when she struck him with a belt, cord, or ruler.
C. Amendment to Conform to Proof
Finally, we observe that the evidence produced at the joint jurisdictional and dispositional hearing clearly demonstrated that David faced a current substantial risk of physical harm if returned to Mother‘s custody.15 Therefore, even if a petition must allege a current substantial risk of harm in order to establish jurisdiction under
First, the record contains substantial evidence that David was a particularly challenging child. The Agency‘s ICWA expert, Kathryn Manness, stated in her declaration, “According to all reports received, David‘s `acting out’ behaviors were extreme.” The foster mother had reported the same disruptive behavior that Mother had described: “hitting other children, disrespectful when addressing adults (ordering them to do things), throwing and breaking things, etc.” David had been diagnosed with attention deficit hyperactivity disorder (ADHD) and prescribed medication and school personnel had noticed a significant improvement in David‘s behavior when he took the medication. David did not regularly take the medication while he was in Mother‘s custody.
Second, Mother‘s ability to discipline David without resorting to physical violence was compromised by her own history of physical abuse at the hands of her mother, her emotional instability, and her social isolation. Mother reported that she had been horribly beaten by her mother with a bullwhip throughout her childhood. She initially explained her conduct by saying that when she was hit as a child, it was an effective disciplinary technique, and by quoting the principle, “Spare the rod and spoil the child.” She acknowledged that she needed parenting training so she would know how to discipline David without resorting to corporal punishment. Mother also reported that she was experiencing perimenopausal symptoms, including mood fluctuations, and had been diagnosed with bipolar disorder but was not taking medication for the disorder. Mother had told David‘s principal several times over the previous year that she had considered putting David up for adoption because she could not cope with his behavior. There was also evidence she was having difficulty meeting David‘s most basic needs. She had a history of referrals to child protective services for neglect of David, although most of the referrals were evaluated out or unsubstantiated, and school personnel reported a significant change in David after he was placed in foster care: he
Third, there was substantial evidence that by the time of the July 11, 2007 hearing Mother had not substantially resolved the psychological factors that had interfered with her ability to discipline David without resorting to physical violence. Although Mother testified that she had obtained medicine for her menopausal symptoms and antidepressants for her mental health condition, the social worker had not received verification of that development. Mother‘s former therapist (who treated Mother through the week of June 11) described Mother as paranoid, exhibiting pressured speech, and tangential thinking, with significant mood fluctuations, short attention span, racing thoughts, and limited concentration. The therapist recommended that Mother undergo personality testing to determine if she could even benefit from counseling and if so what type of therapy would help her. Although Mother had completed a parenting course, the therapist opined that Mother had difficulty tailoring the general parenting techniques she had learned to specific situations and recommended parenting classes for Mother that would teach her simple disciplinary techniques. Mother had also attended many sessions of an anger management course and her teacher reported that she had made great progress. However, Mother had told the anger management counselor that she had merely spanked David; the counselor was not aware of the severity of the January 2007 beating. Mother‘s therapist also reported that Mother had minimized the incident.
Fourth, there were concrete examples that Mother was continuing to have difficulty controlling her behavior around David or safely responding to his misconduct. On June 26, 2007, Mother heard from David‘s father (an unreliable information source) that David was missing. She went to the foster home, banged on the door and windows, and called out for her son. David was scared and crying inside the house. The social worker reported that Mother was volatile with her and with others involved in the case. During visits, Mother seemed to be greatly affected by David‘s moods and became very agitated when he did not behave as she wished. At the July 11 hearing, the court commented that Mother‘s demeanor on the witness stand suggested that she was not prepared to take David back into her home.
Finally, several experts or professionals opined that David could not safely return to Mother‘s care: the social worker, the ICWA expert, and the Tribe‘s ICWA representative. The ICWA expert, a licensed social worker, also opined that David would suffer serious emotional harm if he were returned to Mother‘s care without certain preparations, including family therapy and interactive parent-child therapy.
DISPOSITION
The July 11, 2007 jurisdictional and dispositional orders are affirmed.
Jones, P. J., and Simons, J., concurred.