In Re Sheila B.
ELIA, J.
After a contested five-day hearing, the juvenile court declined to take jurisdiction over Sheila B. It therefore ordered the petition alleging Sheila came within the jurisdiction of the juvenile court dismissed. Is this order appealable? We conclude it is. On the merits, we also conclude the juvenile court did not err in failing to assume jurisdiction over Sheila. Since we also conclude an order granting a
Factual and Procedural Background
The necessary facts can be briefly stated. Sheila and her brother Lester1 were adopted by their paternal grandparents, Areobagita, or Gita, and Lorenzo B., when Sheila was two and a half.2
The B. family emigrated from the Philippines to the United States in 1983. Here, they lived in the same house with Gita and Lorenzo‘s daughter and son-in-law and their four children. Sheila shared a room with her nine-year-old cousin.
The B. family was very protective of the children, who were not allowed to have friends over, not allowed to go out alone, and not allowed to go to friends’ houses. Sheila felt constrained by this family ethic.
In March 1991 Sheila, then 10, was in fifth grade. She had been identified as a gifted student, and excelled academically. Sheila made sexual abuse allegations at her school to a child abuse prevention worker. She alleged her grandfather had molested her since she was five and her uncle since she was eight. She was quite specific about what exactly had taken place. She was taken into protective custody, but was released to Gita several days later, after Gita established separate housing from the family. A
The jurisdiction hearing took place over five court days in September, 1991. Sheila testified on several different occasions during this hearing. Her
Dr. Kerns, director of the Center for Child Protection at the Santa Clara Valley Medical Center, and Mary Ritter, nurse practitioner and the center‘s clinical coordinator, together evaluated Sheila for physical evidence of sexual abuse. They testified that although there was a dramatic narrowing of Sheila‘s hymenal rim, which was highly suggestive of prior penetrating trauma, they could not say definitely that Sheila had been sexually abused. Although Sheila was only 11 when they evaluated her, she was physiologically an adolescent, and the profound and somewhat unknown effects of estrogen prevented certainty in their diagnosis. They ruled out the possibility that their findings could have been caused by masturbation or tampon use, however.
At the conclusion of the hearing, the juvenile court allowed the petition to be amended to add a
On September 18, 1991, the juvenile court announced its decision from the bench. It noted that Sheila had recanted her abuse allegations on the stand, and that neither her testimony nor her prior statements balanced against that testimony had persuaded it of the truth of the allegations. It also noted that the medical testimony had not definitely established that molestation had occurred. Based on all the evidence, the court concluded that the allegations of the petition had not been sustained. It then dismissed the petition.
DISCUSSION
I. Code of Civil Procedure Section 170.6 Challenge
(1) On September 12, 1991, prior to the start of the trial, Lorenzo‘s attorney made a
The court was asked in Hull to determine whether
(2) Appellant argues that it should have the opportunity to raise this issue on appeal. It notes that it filed a writ petition which was summarily denied by this court, and points to Kowis v. Howard (1992) 3 Cal.4th 888 [12 Cal. Rptr.2d 728, 838 P.2d 250], for the proposition that summary denial of a writ petition does not establish law of the case (id. at p. 899). This argument is unavailing.
In Hull, petitioner argued that there would be no satisfactory method of appellate review if mandamus were the only remedy to the denial of a
II. Appealability of Dismissal Order
We asked the parties to address whether the order dismissing the dependency petition was appealable. As a threshold issue, therefore, we must determine the appealability of such an order.
The case law provides little guidance on this issue; most of the cases cited by the parties are inapposite. In In re Elaine E. (1990) 221 Cal. App.3d 809, 812 [270 Cal. Rptr. 489], an appeal was taken from an order terminating dependency with family court orders at a status review hearing. The appellate court determined this dismissal was appealable. In In re Tomi C. (1990) 218 Cal. App.3d 694 [267 Cal. Rptr. 210], the department moved, prior to jurisdiction, to dismiss petitions based on allegations of sexual molest by the father, when custody was transferred to mother. Since the petitions were dismissed without prejudice, the appellate court determined the dismissal was not a final judgment, and hence was nonappealable. And In re Phoenix B. (1990) 218 Cal. App.3d 787 [267 Cal. Rptr. 269], a dependency petition was dismissed prior to jurisdiction when father took custody of an alleged dependent child. The appellate court did not discuss the issue of appealability.
Only In re Christina T. (1986) 184 Cal. App.3d 630 [229 Cal. Rptr. 247] stands in the same procedural posture as this case. There, the appellate court
(3a) Failing guidance from the case law, we return to the Welfare and Institutions Code for guidance.
(4) It is well established that, had the court found the allegations of the petition true, the jurisdictional finding would have been nonappealable; the dispositional order is the adjudication of dependency and is the first appealable order in the dependency process. (In re Candida S. (1992) 7 Cal. App.4th 1240, 1249 [9 Cal. Rptr.2d 521]; In re Megan B. (1991) 235 Cal. App.3d 942, 950 [1 Cal. Rptr.2d 177].)
Where the juvenile court makes true findings in a jurisdiction hearing, dispositional orders are thus the “judgment” specified in
(3b)
(5), (3c) We next turn to the Code of Civil Procedure.
The intent of
A conclusion that an order dismissing a dependency petition is an appealable order satisfies this underlying principle: Unlike a jurisdiction order, which is followed by an adjudication of dependency and many possible subsequent orders, nothing follows a dismissal order: It is the end of the matter, and the child goes home.5
(6) An order dismissing a dependency petition is also a final judgment for res judicata purposes where the petition was adjudicated and the decision was rendered on the merits of the claim. “The judgment is on the merits if the substance of the claim is tried and determined....” (7 Witkin, Cal. Procedure, supra, Judgment, § 217, p. 655; Estate of Gump (1991) 1 Cal. App.4th 582, 608 [2 Cal. Rptr.2d 269].) A judgment “which is rendered after a trial of the issues of fact” is a judgment on the merits. (7 Witkin, supra, Judgment, § 218, p. 655.)
(3d) Here, a contested hearing on the allegations of the petition was heard over five court days, after which the juvenile court rendered a decision concluding those allegations had not been sustained; the resulting order dismissing the petition was thus a judgment on the merits. We thus conclude the dismissal was with prejudice, and was a final judgment for res judicata purposes.
We conclude that an order dismissing a dependency petition, and failing to take jurisdiction, is an appealable order. We reach this conclusion reluctantly, however, for we are cognizant of the pragmatic concerns raised by
(7) While writ review, at least in principle, has the advantage of speed, it is generally discretionary and courts entertain writs sparingly. (Cal. Civil Writ Practice (Cont.Ed.Bar 2d ed. 1987) § 2.2, p. 50; People v. Superior Court (Brent) (1992) 2 Cal. App.4th 675, 682 [3 Cal. Rptr.2d 375]; Brandt v. Superior Court (1985) 37 Cal.3d 813, 816 [210 Cal. Rptr. 211, 693 P.2d 796]; Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal. Rptr. 179, 479 P.2d 379].) Writ review is not a matter of right, as an appeal is. (
Having concluded that the order dismissing the dependency petition is appealable, we turn to the merits of appellant‘s argument.
III. Standard of Review
We are asked to determine whether the juvenile court erred in dismissing the dependency petition. We first examine the appropriate standard of review by which to evaluate this determination.
At a jurisdiction hearing, the juvenile court “shall first consider ... whether the minor is a person described by
We thus review the juvenile court‘s conclusion that the evidence presented by the moving party was insufficient to prove its case; that there was
Respondents both urge us to apply the substantial evidence standard to affirm the trier of fact‘s determination. Applying the semantics of this standard to a failure of proof is problematic, however: Do we review the record to determine if sufficient evidence supports the trier of fact‘s determination that the evidence was insufficient? (See, e.g., Heap v. General Motors Corp. (1977) 66 Cal. App.3d 824, 831 [136 Cal. Rptr. 304] [“To find substantial evidence in support of a finding of no evidence draws the reviewing court into a kind of juridical shell game.” (Italics in original.)].)
Appellant argues that, as a matter of law, it was error for the juvenile court to dismiss the petition. As appellant acknowledges, this is but another formulation of the substantial evidence standard. (See, e.g., In re Christina T., supra, 184 Cal. App.3d at p. 640 [“the trial court erred as a matter of law.“].) (9) (See fn. 6.) The confusion on this issue is illustrated by Christina T., supra, the only published case on point, which articulates all three standards of review — abuse of discretion, sufficiency of the evidence, and error as a matter or law — and uses them interchangeably.6
(10) We agree that the appropriate standard of review is for this court to determine whether the trial court‘s order was supported by substantial evidence. Substantial evidence is evidence that is “reasonable, credible, and of solid value“; such that a reasonable trier of fact could make such findings. (In re Angelia P. (1981) 28 Cal.3d 908, 924 [171 Cal. Rptr. 637, 623 P.2d 198].)
It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. (See, e.g., 9 Witkin, Cal. Procedure,
We proceed to apply this standard of review to the record before us, which includes in excess of 1,200 pages of reporter‘s transcript. After reviewing the entire record, we have no difficulty concluding that the juvenile court‘s determination must be upheld. The court explicitly noted in its decision that the medical evidence, while strongly suggestive, was not unequivocal.7
The court also weighed Sheila‘s recantation against her initial allegations, and was persuaded of the truth of her recantation. The testimony of a single witness is sufficient to uphold a judgment (9 Witkin, Cal. Procedure, supra, Appeal, § 281, pp. 292-293), and an appellate court may not evaluate that testimony as a basis for reversal. (Id. at § 284, p. 295.)
In its decision the juvenile court also noted the traditional values of the B. family, their protectiveness of their children, and the lack of opportunity for the alleged molestation to occur in the B. home. Our review of the record, in short, does not persuade us that there was indisputable evidence of abuse. Absent such evidence, we conclude substantial evidence in the record supports the juvenile court‘s determination that Sheila did not come within the provisions of
DISPOSITION
The juvenile court‘s order is affirmed.
Premo, Acting P.J., and Mihara, J., concurred.