In re Melissa S.
- Reporters:
- ,
- Before:
- Hamlin, Franson, Woolpert
PROCEDURAL BACKGROUND
On May 23, 1985, respondent Kern County Welfare Department (Department) became aware that 11-year-old Wendy A. and 6-year-old Melissa S. may have been molested by their stepfather, John L. Melissa was promptly taken into protective custody, but Wendy was not. A few days later Wendy retracted her charge of molestation. On May 28, the Department filed three petitions in the Kern County Juvenile Court alleging that Melissa, Wendy and their 14-year-old sister, Ellena A., were minors coming within the provisions of
According to the allegations of the petition, the minors’ home was unfit because both Melissa and Wendy had been molested by their stepfather and their mother failed to protect the minors although she knew of the molestation. While no allegations of molestation were made regarding Ellena, her home was deemed unfit because of the molestation of her sisters and the mother‘s failure to protect her daughters.
Initial hearings were held on all three petitions on May 29. The juvenile court‘s minute order is preprinted as to the nature of the hearing. With respect to Melissa, the clerk of the court checked the box indicating a detention hearing, but with respect to Wendy and Ellena, the clerk checked the box for a jurisdictional hearing. There is a capital letter “P” handwritten in front оf the checked box, but its meaning is not clear. The only difference between the three minors was their custodial status, i.e., Melissa had been taken into custody, while Wendy and Ellena had not. However, as to all
Present at this initial hearing were the mother of the minors and appellant herein, Suzan L. (mother); the stepfather of the minors, John L.; Melissa‘s natural father, Greg S. (the natural father of Wendy and Ellena is deceased); and social worker Betty J. Pratt. The minute orders do not reflect that the minors were present. Gary Vincent was appointed to reрresent the mother, and the office of the public defender, represented by Russ Henry, was appointed to represent John L. All the allegations of the petitions were denied; nevertheless, the court found each of the minors was a person described by
On June 6, 1985, a supplemental petition pursuant to
The contested jurisdictional hearing originally scheduled for June 12 was recalendared and held on June 11, 1985. Present at this hearing were social worker Pratt, represented by county counsel; Greg S., represented by counsel; and the mother, also represented by counsel. John L. was not present, but his attorney was at the hearing to represent him. The juvenile court minute orders do not reflect that any of the minors were present at this hearing. The minute orders also note that dependency was still premised on
Social worker Pratt filed an identical 18-page report as to each of the minors on June 21, 1985. The mother responded to these reports and submitted points and authorities opposing the social worker‘s recommendation that the minors remain out of her custody.
At the dispositional hearing оn June 25, all three minors were adjudged to be dependent children of the juvenile court and placed in the care, custody and control of the Department for suitable placement. The court made all necessary findings and advisements. A review date was set for September 24, 1985. The mother appeals.
STATEMENT OF THE FACTS
We take our facts from the social worker‘s report. After receipt of an anonymous referral alleging that Wendy had been sexually molested by John L., the Department‘s emergency response worker, Nora McLellan, interviewed Wendy and her sister Melissa on May 23. Both minors stated John L. had sexually molested them. Wendy said John L. had fondled her and penetrated her vagina with his finger about one and one-half years previously at a time when John L. was a family friend and not living in the home. Wendy said she had told her mother about the molestation and her mother had responded “that‘s the worst thing you can do because John will go to jail. Don‘t tell anyone and we‘ll work it out.”
Melissa also said she had been molested by John L. The act was fondling and digital penetration and it occurred when she, her mother, John L. and her brother Jeremy were all lying on the bed in the bedroom occupied by her mother and John L. She said John L. put his hands down her pants and touched her on her “pee pee.” Her mother had been aware of that act and had been angry at John L.
Ellena stated that although she had not witnessed the molestation of Wendy and Melissa, both of them had told her what John L. had done to them. Jeremy‘s only statement was, “I ain‘t saying nothing. I don‘t want to get anyone in trouble.”2
Social worker Pratt interviewed Melissa at Jamison Children‘s Center on May 27. When Pratt asked Melissa why she had been brought to the Jamison Center, she repeated her statement that she had been molested by John L. She then described the act of digital penetration. She also repeated her statement that the molestation occurred when she, her mother, John L., and her brother were lying on the bed together.
On May 29, prior to the detention heаring, Pratt interviewed Ellena, Wendy and Jeremy. Ellena and Wendy were very anxious and agitated during the interview. They retracted the statements they had previously made about being molested. Wendy said she must have been confused when she was interviewed by McLellan. She stated, “John isn‘t that kind of man.” Both Wendy and Ellena were so anxious they were talking at the same time. On several occasions, Wendy said, “this is all my fault.”
DISCUSSION
I.
Motion to Dismiss
(1) After the mother filed her opening brief on September 17, 1985, she advised this court that the Kern County Superior Court had modified the placement orders regarding Melissa and Wendy on September 30, 1985. Melissa and Wendy had been returned to the mother‘s custody on a trial basis; Ellena remained in out-of-home placement which the mother did not oppose. After the modification, the Department filed a motion to dismiss the appeal. The Department contended that since the mother had regained the custody of two of her three daughters and did not oppose continued out-of-home placement of the third, the material issues raised by the appeal had been rendered moot. This court denied the Department‘s motion by the following order: “Respondent‘s motion to dismiss the appeal on the ground of mootness is denied. Respondent has not shown how a temporary award of trial custody in the appellant, which is subject to review by the lower court, has rendered all of the issues raised in the appeal moot.”
The Department has again raised the issue of mootness as its first argument on appeal. Initially we note the mother has appealed from the orders of the juvenile court rendered on June 25, 1985. Before the cоurt refused to grant the mother custody of her children, it adjudged these children dependent
Moreover, this court appointed independent counsel for the minors, and in their opening brief the minors contend the dependency order must be reversed because thе trial court failed to appoint counsel for them at the dependency hearing.
We therefore reject the Department‘s contention that the appeal has been rendered moot.
II.
The Trial Court‘s Failure to Appoint Counsel for the Minors
(2) We address first the minors’ contention that the trial court‘s failure to appoint counsel to represent their interests at the dependency and subsequent hearings requires reversal.
At the time of the hearings,
The language of the statute is mandatory and does not leave appointment of counsel for a minor to the discretion of the trial court when the minor is alleged to be within the definition of
(3) There is nothing in this record to suggest that Ellena, Wendy, and Melissa, the subjects of a
First, both Wendy and Ellena were taken into custody, i.e., detained, at a time when both were defined as persons falling within
The Department argues first that
The argument that
Moreover, the Department‘s argument is illogical, at best. In arguing that a minor who is not present at a detention or other juvenile court prоceeding is not entitled to appointed counsel, the Department is actually contending that such a child is entitled to no voice at all in a proceeding which will impact upon the child‘s ongoing relationship with a parent or guardian. Presumably, a minor who appears at the proceeding and is of an age and competency to do so can personally provide the trial court with information relevant to the appropriate determination. Similarly, a minor who is too young or otherwise unable to offer his or her input to the court but who appears at the proceeding will be guaranteed a voice through appointed counsel. However, were the Department‘s contention correct, a child of whatever age or competence who is not physically present at the hearing loses by default the only possible opportunity to be heard, i.e., the appointment of counsel for the minor with a statutory duty to protect the minor‘s interests. This contention simply makes no sense.
The Department‘s second argument — that the minors no longer had a right to appointed counsel at the dispositional hearing since the allegations under
In addition to the clear statutory language, the Department‘s argument, if accepted, would frustrate the legislative intent in enacting
(4a) That the deprivation of counsel in the instant case was prejudicial, i.e., that the error may have resulted in a miscarriage of justice (In re Patricia E., supra, 174 Cal. App.3d at p. 6), is apparent when the statutory duties imposed on appointed cоunsel are considered in the context of what might have been done in the instant case.
The legislative history of the 1980 amendment to
As the report of the social worker in this case discloses, the initial report of molestation concerned Wendy and related an act occurring approximately a year and a half before. This report was anonymous. Moreover, the social worker‘s report also revealed that the three children involved, Ellena, Wendy, and Melissa, all appeared well-adjusted and deeply bonded to their mother and to one another. Finally, it was clear from the report that the children wished to be returned to their mother‘s custody.
Certainly the seriousness of the underlying conduct in this case, the molestation of Wendy and Melissa and the mother‘s apparent failure to protect her children, cannot be ignored. Similarly, the preference of a minor child is not determinative of his or her best interests. However, the only information considered by the trial court here was that prepared by the social worker, and her report recommended removing all four children (including Jeremy) from their mother‘s custody. As stated above, the court did not follow the recommendation with respect to Jeremy. It is apparent from all the circumstances that the trial court might well have benefited from additional evidence, assembled and presented by independent counsel, from the standpoint of the minors’ best interests. Of course, it is impossible to state with certainty what additional evidence would have surfaced had counsel for the minors pursued, for example, interviews with other family members, neighbors, or teachers or independent examinations of the minors by qualified psychologists. Certainly the trial court could, and probably should, consider evidence bearing upon whether separation of the children from one another and from their mother would have a more severe emotional impact
The mother‘s challenge to the evidentiary support for some of the findings the trial court made to satisfy applicable statutory requirements presents some difficult questions. (5) When a welfare department‘s social worker has recommended a minor be made a dependent child and removed from parental custody, and when a parent has entered into a “plea” arrangement, conceivably to preclude adjudication of the more serious acts alleged in the petition, both the welfare department and the parent may have an interest in letting the allegations of the petition and the substance of the report pass unchallenged. This does not, however, assure that the best interests of the minor are being served, precisely the reason that independent counsel is statutorily required.
(6) In adopting the mandatory language of
(7) Our conclusion thаt the trial court‘s failure to appoint independent counsel for the minors mandates reversal of the dependency order makes it unnecessary for us to consider the mother‘s contention the trial court‘s findings were not supported by substantial evidence. Suffice it to say that if the Department elects to pursue a
Franson, Acting P.J., and Woolpert, J., concurred.
Notes
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At all times relevant, section 300, subdivisions (a) and (d), provided: “Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge such person to be a dependent child of the court: [¶] (a) Who is in need of proper and effective parental care or control and has no parent or guardian, or has no parent or guardian willing to exercise or capable of exercising such care or control, or has no parent or guardian actually exercising such care or control. No parent shall be found to be incapable of exercising proper and effective parental care or control solely because of a physical disability, including, but not limited to, a defect in the visual or auditory functions of his or her body, unless the court finds the disability prevents the parent from exercising such care or control.... [¶] (d) Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or physical abuse of either of his parents, or of his guardian or other person in whose custody or care he is....”