Opinion
INTRODUCTION
We hold that under the doctrine of disentitlement, mother has forfeited her right to appeal from the juvenile court’s orders because she willfully left the jurisdiction with her children while the Welfare and Institutions Code section 300
FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2007, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition under section 300, subdivisions (b) and (d) alleging that the father of children A.M., E.M., and G.M. (father) had been sexually abusing C.G., the daughter of his longtime sexual companion, from the time C.G. was age nine through age 16. According to DCFS, father “repeatedly, forcibly rap[ed] [C.G.] . . . .” DCFS alleged that father “frequently fondled [C.G.’s] breasts, thighs, buttocks and vagina.” DCFS further
In a May 18, 2007, detention report, DCFS reported that a separate section 300 petition had been sustained against father for sexually abusing his “stepdaughter” C.G. from the age of nine, i.e., for a seven-year period. According to the report, father was currently residing with mother and their three children, A.M., E.M., and J.M. A children’s social worker (CSW) interviewed the three children, mother, and father. Each of the children denied that father had abused them. Mother stated that she did not believe father abused C.G. and informed the CSW that C.G. “was stealing from her mother, using drugs, and [was] sexually promiscuous . . . .” Nevertheless, mother agreed that if father needed to leave the children’s home, she would “do whatever [was] required of her.” Mother also informed the CSW that she was considering taking her children to Mexico, and father could “sort out his problems here.” Father told the CSW he did not sexually abuse C.G. and notwithstanding that a petition alleging such sexual abuse had been sustained by the juvenile court, he hoped to prevail on his appeal from the order sustaining that petition. But father agreed to leаve the home, enter counseling, and follow the orders of the juvenile court.
In a June 18, 2007, disposition report, a CSW reported that mother admitted she learned about the allegations of father’s sexual abuse of C.G. a year earlier in June 2006. Nevertheless, she allowed father to move back into the home for approximately eight months until a CSW came to their home in May 2007 and told father to leave. According to mother, she did not believe C.G.’s allegations that father sexually abused C.G. But when remindеd by the CSW that the allegations of sexual abuse against father had been sustained by the juvenile court in the separate case involving C.G., mother acknowledged that it was possible that father had sexually abused C.G. Mother nevertheless denied that father had sexually abused any of her three children. Mother also complained that all the visits by CSW’s interrupted the children’s lives. As a result, mother was considering returning to her hometown in Mexico with the children.
The CSW who interviewed father reported that he denied sexuаlly abusing C.G., despite the juvenile court’s finding that C.G.’s allegations were
The CSW further reported that on May 15, 2007, DCFS had a meеting to create a safety plan. The entire family attended the meeting. Under the agreed-upon safety plan, the children would be detained from father and left in mother’s care, mother would protect the children and not allow father to reside in the home, mother and the children would attend individual therapy to address case issues, mother would enroll in sex abuse awareness and parent education counseling, and father would enroll in sex abuse counseling for perpetrators. The children were released to mother, and father was to have monitored visits with the children in a DCFS office or a neutral setting with a DCFS-approved monitor.
At the June 18, 2007, pretrial conference, both mother and father appeared and were represented by counsel. The juvenile court set the matter for a contested jurisdiction and disposition hearing on June 25, 2007. At the June 25, 2007, hearing, mother and father again appeared and were represented by counsel. The juvenile court continued the matter to August 6, 2007, so that documents from the separate case involving father’s sexual abuse of C.G. could be obtained and considered.
On July 30, 2007, DCFS filed a request for protective custody warrants. According to DCFS, mother had checked A.M. and E.M. out of their respective schools on June 21 and 30, 2007. In addition, the manager at the family’s apartment complex confirmed that the family moved out of their apartment on June 30, 2007. And, father’s employees reported that he told them he was going to Mexico fоr a vacation for approximately 30 days. On August 2, 2007, the juvenile court issued protective custody warrants for A.M., E.M., and J.M. The juvenile court also issued arrest warrants for mother and father and set bail at $500,000 for each parent.
Over the next two and a half years, the juvenile court held six-month review hearings to determine if there was any new information on the whereabouts of the children and their parents.
At a February 24, 2010, hearing, the juvenile court set a contested jurisdiction and disposition hearing for August 16, 2010. The juvenile court ordered DCFS to give notice of that hearing date to the family in Mexico pursuаnt to the Hague Service Convention.
On August 16, 2010, a CSW reported that DIF continued to provide courtesy supervision and services for the family. Mother and the children were receiving individual therapy. The CSW had requested a progress report from the therapist. The CSW did not know whethеr the children were having contact with father who lived in Veracruz, but mother claimed she was not having any contact with him. The CSW also explained that the man who identified himself as father during the first home visit by the DIF social worker was mother’s brother who told the social worker he was the children’s father to prevent them from being removed from the home. At the August 16, 2010, hearing, the juvenile court found that notice of the December 16, 2010, jurisdiction and disposition hearing had been made and continued the matter for hearing on thаt date.
At the December 16, 2010, hearing, mother and the children did not appear, but they were represented by counsel. The juvenile court admitted DCFS’s documentary evidence and took judicial notice of the findings and orders of the court in the separate dependency case involving the sexual abuse of C.G., as well as father’s voluntary dismissal of his appeal in that case. Following argument, the juvenile court found that notice was proper and sustained as true the allegations of risk of sexual abuse of the children and failure to protect them. The juvenile court declared E.M. and J.M. dependents of the court, ordered that they remain in mother’s custody, and ordered that mоther was to receive family maintenance services. Mother was also ordered to participate in parenting classes and sexual abuse awareness counseling. The juvenile court further ordered DCFS to obtain written reports from DDF and service providers in Mexico. Thereafter, the protective custody warrants for the children and the arrest warrants for mother and father were recalled by the juvenile court. Mother timely appealed from the December 16, 2010, jurisdiction and disposition orders.
In a June 16, 2011, status review report, a CSW reported that she had monthly contact with mother through letters and e-mails. The CSW also reported that she had not received progress reports on the family’s compliance with the juvenile court’s orders and the current status of the children. As a result, DCFS was unable to “assess the children’s and the mother’s progress in the Court-ordered programs.” DCFS therefore recommended that E.M. and J.M. remain dependents of the juvenile court and that DCFS be orderеd to continue to provide mother and the children with family maintenance services. In a supplemental report, DCFS detailed the efforts made by its CSW to communicate with the DIF social worker. DCFS had received one reply from the DDF social worker indicating that she had not received a report from the psychologist, but that mother and the children were attending therapy. DCFS had not been provided a telephone number for mother, and could only communicate with her in writing.
At the June 16, 2011, review hearing, mother’s counsel asserted that the juvenile court lacked subject matter jurisdiction over mother and requested that the case be dismissed. DCFS argued that there was insufficient evidence of compliance with the court-ordered case plan and that jurisdiction should
DISCUSSION
A. Doctrine of Disentitlement
DCFS contends that mother is barred from pursuing her appeal under the well-established doctrine of disentitlement, a doctrine by which an appellate court may stay or dismiss an appeal by a party who has refused to obey the superior court’s legal orders. (Say & Say v. Castellano (1994)
Appellate disentitlement “is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction . . . .” (People v. Puluc-Sique (2010)
The court in In re C.C., supra,
B. Analysis
In this case, a juvenile court in a separate dependency proceeding found that father had sexually abused C.G. for seven years, a finding that became final when father dismissed his appeal in that sepаrate proceeding. Despite her knowledge of that serious finding of sexual abuse, mother allowed father to continue to live with her children and, after the petition in this case was filed, she denied that father had abused C.G., claiming C.G. was making false accusations about father and threatening to remove the children to Mexico. Faced with the pending proceedings in this case, mother attended a meeting with DCFS and voluntarily agreed to comply with a case plan that required her, inter alia, to complete a sexual abuse awareness class and required her and the children to participate in individual therapy. Thereafter, mother attended a pretrial conference and an adjudication hearing which was continued to obtain documents from the dependency proceeding involving father
By absconding to Mexico with the children, mother effectively undermined and frustrated the core purpose of California’s dependency law—to protect and benefit the interests of children who are the subject of a section 300 petition. For over two years, mother successfully avoided any supervision or oversight by either the juvenile court or DCFS. As a direct result, the juvenile court was unable during that time to enforce its orders and extend its protection to the children. Even after mother was located, DCFS was unable to assess whether mother was in compliance with the case plan. In particular, neither DCFS nor the juvenile court had confirmation that mother had successfully completed the court-ordered parenting classes and sexual abuse awareness program or that mother and the children had completed the court-ordered individual therapy because, inter alia, there were no written reports from the therapist and the children’s attorney had been unable to contact them. In addition, although mother denied having contact with father, it is unclear from the available information whether he was having contact with E.M. and J.M. If he was having such contact, the circumstances and extent of that contact were unclear. Therefore, the juvenile court was also unable to ensure that mother was complying with its order that father was to hаve only monitored visits with the children and that mother was not to act as monitor for those visits.
Mother argues that because the trial court recalled the arrest warrant for her after it issued the jurisdiction and disposition orders and she is not in violation of any orders during the pendency of the appeal, the disentitlement doctrine does not apply. She relies on language in cases such as Guardianship of Melissa W., supra, 96 Cal.App.4th at page 1296, in which the court said that parties “may not obtain review of the judgment while at the same time being in violation of the very judgment from which they appeal.”
But in other cases, such as In re Claudia S. (2005)
This broader formulation of the doctrine suggests that it is not limited to cases in which the appellant is in violation of the order from which he or she appeals, but rather may also apply to cases in which the appellant hаs violated orders other than the one from which the appeal has been taken. For example, in TMS, Inc. v. Aihara, supra,
Not every act of noncooperation in the trial court results in disentitlement. In In re Baby Boy M. (2006)
Thus, the disentitlement doctrine is not only applicable to disobedience of the order being appealed; it also applies to “egregious” conduct that frustrates the juvenile court from carrying out its orders. In any event, mother’s conduct supporting disentitlement does bear directly on the orders
Even after DCFS located mother and the children, she did not affirmatively demonstrate that she was in full compliance with the case plan. To the contrаry, mother appeared to use her residency in Mexico as a means to avoid direct supervision by DCFS and full compliance with her case plan. In addition to mother and the children being completely unavailable by telephone, mother limited direct communication with DCFS to monthly letters or e-mails, conduct that contributed to DCFS’s inability to assess the progress of the children and mother in the court-ordered programs. Because mother was solely responsible for the juvenile court’s inability to implement fully the procedures intended to protect the children and benefit their interests, she forfeited her right to challenge the orders from which she appeals.
Unlike the parents in In re Claudia S., supra,
The appeals from the Dеcember 16, 2010, jurisdiction and disposition orders and the June 16, 2011, order continuing jurisdiction are dismissed.
Turner, P. J., and Kriegler, J., concurred.
Notes
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At a review hearing on December 31, 2008, the juvenile court dismissed the petition as to A.M. because she had turned 18 years old.
DIF is the acronym for Desarrollo Integral de la Familia, a Mexican social services agency dealing with family matters. (See In re Jennifer O. (2010)
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, article 10 (Nov. 15, 1965) 20 U.S.T. 361, T.I.A.S. No. 6638.
We granted mother’s motion to consolidate the two appeals, as they raise identical factual and legal issues. Father did not appeal.
Mother concedes that the “two appeals address the exact same legal and factual issues.” Thus, the disentitlement doctrine applies with equal force to both appeals.
There is nothing in the record to suggest that any other court has invoked jurisdiction over the subject matter being appealed here.