In re Christina C.
Filed 3/26/13 In re Christina C. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re CHRISTINA C. et al.,
Persons Coming Under the Juvenile Court Law.
B240921
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTINA C.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. CK74439)
APPEAL from
an order of the Superior Court
of
County.
Marguerite D. Downing, Judge.
Affirmed.
Darlene
Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Sarah
Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Christina
C. (mother) appeals from a juvenile court order asserting jurisdiction over her
five children. In sustaining the
the petition so that it included language regarding mother, despite previously
accepting the parties’ mediation agreement that removed all mention of mother’s
conduct or omissions from the petition.
We conclude the juvenile court did not err in amending the petition’s language
and that the amended language was supported by substantial evidence.
FACTUAL AND PROCEDURAL BACKGROUND
In
September 2011, the Los Angeles County
Department of Children and Family Services (DCFS) received a referral
regarding mother’s children: Christina
C. (12 years old), M.C. (9 years old), N.C. (7 years old), Mark C., Jr. (5
years old), and Anthony S. (2 years old).
The referral concerned sexual abuse of M.C., N.C., and Mark, Jr.,
physical abuse of M.C., and emotional abuse of all of the children. At the time, mother and the children had been
sharing a home with mother’s husband and the father of the four oldest
children, Mark C., Sr. (Mark C.), and mother’s boyfriend and the father of
Anthony S., Matthew S. Mother and Mark
C. were separated.
title="">[1]
In
September 2011, mother became concerned that the children had been sexually
abused. N.C. suffered several
and mother discovered M.C., N.C., and Mark, Jr. in a closet; Mark, Jr. was
naked, N.C. was wearing only underwear, and M.C. was telling Mark, Jr. “how to
do it.†Mother suspected Mark C. was
abusing the children. She reported her
concerns to law enforcement, but no action was taken. Mother also grew suspicious of Matthew S. and
asked him to leave her home. Mother
secured temporary restraining orders
against both Mark C. and Matthew S.
In an
“upfront assessment†conducted in November 2011, mother described Matthew S. as
“very disturbed.†She noted he cut the
heads off the children’s toys and drew “perverted pictures†in their notebooks.
in with the family despite the incident that led to dependency jurisdiction in 2009
because he had nowhere else to stay.
Mother and Matthew S. were together between 2008 and October 2011. Mother said Mark C. had lived with them for
only three weeks or one month when the children told her they were being
molested. Mother told the assessor
Matthew S. had emotionally, physically, and sexually abused her. Matthew S. was physically violent with
mother, including during the first two years of their relationship and when she
was pregnant. Mother asserted she was
“fairly certain†Matthew S. drugged her on one occasion, and he had recently
threatened to kill her. Matthew S. told
the children mother did not love them.
The children witnessed mother and Matthew S. arguing and attempted to
intervene. However, mother asserted the
children did not witness any physical abuse.
DCFS
interviewed the children several times.
Christina C. denied being inappropriately touched by Mark C. or Matthew
S. She also said she never saw Mark C.
inappropriately touching her sisters, and her sisters never told her Mark C.
touched them inappropriately. Although
M.C. told DCFS she thought Christina and Matthew S. had a “relationship,†and
M.C. said mother found notes Christina and Matthew S. wrote to each other,
Christina denied any such relationship.
M.C. initially
denied sexual abuse. She admitted
playing “house†with her siblings. In a
first interview, she said she felt safe around Mark C. and Matthew S., and she
wanted Mark C. (her father), to return home.
In a second interview, M.C. reported feeling afraid of Matthew S.
because of pictures mother said Matthew drew depicting a child without a face
and a dead child.
title="">[3] M.C. told the DCFS social worker: “ ‘Mom keeps asking if Matthew hurt us and I
do not know.’ Then child stated that at
times it feels like (Matthew) touched her but at other times she feels that it
did not happen and said, ‘Sometimes I feel daddy did.’ Then child stated that at times she feels
that none of them touched her and said, ‘I am not sure, I do not
remember.’ †At a third interview,
M.C. reported Matthew S. had touched her vaginal area with his fingers when she
was preparing to shower, the touching hurt, and Matthew threatened her so she
did not tell anyone. In a later
interview, M.C. told the social worker Mark C. had never touched her, only
Matthew S. She reported that Mark, Jr.
told her Matthew touched her while she was sleeping. M.C. said she had only recently told mother
about the touching.
N.C.
reported Mark C. had touched her private parts when she was visiting him before
he moved into the family home. She
denied that Matthew S. ever touched her inappropriately, although she said she
was afraid of him because he asked her to do things in a “mean way.†N.C. indicated she told mother Mark C. had
touched her. When asked how mother
responded, N.C. said: “I forgot.â€
In two
interviews, Mark, Jr. denied that anyone had ever touched him
inappropriately. He said he was afraid
of Matthew S. because Matthew S. yelled and spanked him, and mother and Matthew
S. argued a lot. Mark, Jr. admitted
playing with his sisters and removing his clothes at his older sister’s
direction, but denied that he had played similarly with any adults. However, in a third interview, Mark, Jr. said
Matthew touched his (Mark’s) private parts when Mark, Jr. was sleeping. The worker stated: “Child reported that while
he was sleeping Matthew pulled down his underwear and poked his penis with his
3 fingers. Child reported that Matthew
discontinued touching him after his mother came into the room.†In a subsequent interview, Mark, Jr. again
reported that Matthew S. had touched him, and Matthew S. “[pointed] his finger
in my privates.†Mark, Jr. said he had
played the touching “game†with his siblings on several other occasions.
DCFS filed
a petition alleging Matthew S. physically abused Mark, Jr., mother failed to
protect him from the abuse, and the abuse and mother’s failure to protect
placed all of the children at risk of harm (counts a-1, b-6, j-5); Mark C.
sexually abused N.C. and M.C. (counts b-1, b-2, d-1, d-2, j-1, j-2); Matthew S.
sexually abused M.C. and Mark C. Jr. (counts b-3, b-4, d-3, d-4, j-3, j-4); and
mother had mental and emotional problems that rendered her unable to provide
regular care and supervision of the children, and she failed to take prescribed
psychotropic medication (count b-5).
In March
2012, in advance of the jurisdiction and disposition hearing, mother, counsel
for the children, and DCFS participated in a mediation. They reached an agreement that mother would
submit on an amended dependency petition that did not name mother. The count regarding mother’s mental or
emotional problems was to be dismissed (count b-5), and the allegation that
mother failed to protect Mark, Jr. from Matthew S.’s physical abuse was to be
deleted (counts a-1, b-6, j-5). The
children were to remain in mother’s home, receiving family maintenance services
under court supervision. Mother agreed
to complete a parenting program, participate in individual counseling to
address case issues, participate in a mental health evaluation, and follow
treatment recommendations, including taking prescribed psychotropic
medications.
Mother
completed a written waiver of rights indicating she had read the petition, and
submitted the matter on the basis of the social worker’s report and any other
documents as to counts a-1, b-6, j-5, and b-5 only. The form indicated mother acknowledged giving
up certain rights by submitting on the petition, but written on the form was a
note that she submitted the petition on the report “as to a-1, b-6, j-5, and
b-5 only.†At the March 2012
jurisdiction and disposition hearing, the juvenile court began the proceedings
by taking mother’s waiver of rights, including the following colloquy:
“THE COURT: [Are] you submitting the matter to the court
based upon the paperwork that has been presented by the county and the
mediation agreement?
“THE MOTHER: Yes.
“THE COURT: Okay.
[¶] Do you have any questions for
me or your lawyer at this time?
“THE MOTHER: No.
“THE COURT: All right.
[¶] The court finds that [mother]
has knowingly and intelligently waived her right to a trial on the issues by
the court . . . . [¶] The court further finds . . . she understands
the nature of the count alleged in petition and the possible consequences of
her [admission]. [¶] [Mother’s counsel], on behalf of your client.
“[MOTHER’S COUNSEL]: As to the count --
“THE COURT: Are there some other counts that are not at
issue, that you’re not joining?
“[MOTHER’S COUNSEL]: Those were the only ones that we agreed to in
mediation, Your Honor.
“THE COURT: Okay. . . .
“[MOTHER’S COUNSEL]: What was agreed to in the mediation
agreement.
“THE COURT: Yes, all right. Thank you.
[¶] . . . [¶] .
. . Let me just provide for
clarification as to mother, the court is sustaining the following . . . I am
sustaining a-1 as amended, striking her name from that petition and any
reference to her. B-6 is being sustained
as amended, striking any reference to her.
And j-5 is sustained as amended, striking any reference to her.â€
DCFS
submitted documentary evidence to support the remaining portions of the
petition. No other party submitted
witnesses or evidence on the remaining issues, although the court gave each
party the opportunity to do so. Counsel
provided argument on the sexual abuse counts.
While counsel for DCFS only explicitly referred to the fathers’ conduct,
he also asserted the “household environment was not one where the children were
protected and given any kind of safe haven,†and “[the children] deserve the
protection of the court because it does not appear that they’re going to get
protection without the court and department’s intervention.†Mother’s counsel noted the court had
previously expressed concern that mother knew what was happening in the home,
and argued mother was proactive and immediately responded when she suspected
the children were being abused.
The court
responded: “[The] court is considering sustaining a b-3 count and combining all
of it into one and indicating an unknown person while under the care of their
mother. My concern is there is too much
going on and obviously there’s a concern, I just have a concern that [mother]
was not as blameless as her attorney argues it or the mediation agreement
covers given all of the things going on.
All of her responses on and she must have thought something was going
on. And it does not appear that she did
enough to protect the children.â€
Ultimately, the court sustained count a-1 (Matthew S.’s physical abuse
of Mark, Jr.), but struck any mention of mother, as the parties had
agreed. The court dismissed counts b-1,
b-2, b-4, b-5, b-6, and the d count. The
court said it would sustain count b-3 as amended, and, “I’ll get back to you
what the amended language is.†The court
further indicated it would sustain an amended j-3 count. Mother’s counsel objected to the
to-be-amended b-3 and j-3 counts, arguing, “I know you’re going to name the
mother as failed to protect.â€
The court subsequently amended
counts b-3 and j-3 to read: “On a prior
occasion, the children, [M.C.], [N.C.] and [Mark, Jr.], were victims of
inappropriate sexual touching by an unknown person, while under the care of
their mother. . . . Such inappropriate
sexual touching of these children by an unknown person, and the lack of
appropriate support by the mother, endangers their physical health and safety
and places the children and their siblings, Christina and Anthony, at risk of
physical harm, damage, danger and sexual abuse.†The children remained in mother’s home, under
court supervision. As the parties had
agreed at the mediation, the court ordered DCFS to provide family preservation
services to mother. The court ordered
mother to participate in mental health counseling, including taking prescribed
medications, and individual counseling to address case issues.
Mother filed an appeal in April
2012 challenging the court’s jurisdictional findings naming her. In October 2012, the juvenile court
terminated dependency jurisdiction over all five children. The court issued a custody order giving
mother sole physical custody of Christina C., N.C., M.C., and Mark Jr., and
joint legal custody of these children with Mark C. The court ordered mother to have sole
DISCUSSION
I. Mootness
Mother informed this court that
the juvenile court terminated dependency jurisdiction after she filed her
appeal, but she contends the appeal is not moot. In general, the termination of
of the court’s jurisdictional order. (
718, 724; In re C.C. (2009) 172
Cal.App.4th 1481, 1488-1489 (C.C.).) “An appeal becomes moot when, through no
fault of the respondent, the occurrence of an event renders it impossible for
the appellate court to grant the appellant effective relief.†(In re
Yvonne W. (2008) 165 Cal.App.4th 1394, 1404 (Yvonne W.).)
In addition, mother does not
contend the juvenile court improperly asserted jurisdiction over the children
based on the conduct of Mark C. and Matthew S.
She challenges only the findings naming her in the petition. The juvenile court may declare a minor a
dependent if either parent’s actions provide a basis of jurisdiction. (In re
Drake M. (2012) 211 Cal.App.4th 754, 762 (Drake M.); In re I.A.
(2011) 201 Cal.App.4th 1484, 1491-1492 (I.A.);
In re J.K. (2009) 174 Cal.App.4th
1426, 1431 (J.K.);
189, 202.) Some courts have therefore
concluded that if the appealing parent does not challenge the juvenile court’s
findings based on the other parent’s conduct, the appeal raises only academic
questions of law since the appellate court “cannot render any relief . . . that
would have a practical, tangible impact on [the appealing parent’s] position in
the dependency proceeding.†(
the evidentiary support for any remaining jurisdictional findings once a single
finding has been found to be supported by the evidence.†(Ibid.)
“However, a reviewing court may
exercise its inherent discretion to resolve an issue rendered moot by
subsequent events if the question to be decided is of continuing public
importance and is a question capable of repetition, yet evading review. [Citations.]
We decide on a case-by-case basis whether subsequent events in a
juvenile dependency matter make a case moot and whether our decision would
affect the outcome in a subsequent proceeding.â€
(Yvonne W., supra, 165
Cal.App.4th at p. 1404.)
In several cases, appellate courts
have exercised their discretion to consider a parent’s appeal even after the
juvenile court has terminated dependency jurisdiction, because there were exit
or custody orders still adversely affecting parental rights, or because of the
potential for the juvenile court’s orders to affect the parent’s position in a
subsequent proceeding. (See
1295; J.K., supra, 174 Cal.App.4th at
pp. 1431-1432; C.C., supra, 172
Cal.App.4th at p. 1489; In re A.R. (2009)
170 Cal.App.4th 733, 740; In re Joshua C.
(1994) 24 Cal.App.4th 1544, 1547-1548; but see I.A., supra, 201 Cal.App.4th at pp. 1491-1492.)
Similarly, in some cases, courts
have considered one parent’s appeal of jurisdictional findings based on that
parent’s conduct alone—despite the lack of a challenge to findings based on the
other parent’s conduct—on the theory that the jurisdictional allegations
rendering the appealing parent “offending†may have a significant effect on
subsequent dependency proceedings, that parent’s ability to have custody or
visitation, or, when dependency jurisdiction has already been terminated, the
parent may continue to be affected by exit orders or custody orders in family
law court. (See, e.g.,
763; In re D.C. (2011) 195
Cal.App.4th 1010, 1015; J.K., supra, 174
Cal.App.4th at p. 1432.)
Here,
mother asserts her appeal is not moot because of the potential consequences of
the sustained jurisdictional findings naming her. Mother contends there are potential adverse
effects to her should there be a future dependency proceeding, and the findings
may also allow her to be included in the child abuse central index, as set
forth in Penal Code section 11170, subdivision (a). In In
re Joshua C., supra, 24 Cal.App.4th at pages 1547-1548, the court
reasoned: “The fact that the dependency
action has been dismissed should not preclude review of a significant basis for
the assertion of jurisdiction where exercise of that jurisdiction has resulted
in orders which continue to adversely affect appellant . . . . Moreover, refusal to address such
jurisdictional errors on appeal by declaring the case moot has the undesirable
result of insulating erroneous or arbitrary rulings from review.â€
The adverse collateral effects
mother fears may be speculative at the moment.
the merits of mother’s argument on appeal.
(See C.C., supra, 172 Cal.App.4th
at p. 1489.)
II. The
Juvenile Court Did Not Err in Adding an Amended Count to the Petition
Mother contends she waived her
right to a contested hearing on the
petition in reliance on the court’s acceptance of the parties’ mediation
agreement. She argues when the juvenile
court determined it would add language naming her in the petition, it was
required to sua sponte provide her an opportunity to withdraw her previously
entered waiver of rights. We disagree
with mother’s characterization of the proceedings.
The parties agreed at mediation
that references to mother in counts a-1, b-6, and j-5 would be deleted. These counts concerned Matthew S.’s physical
abuse of Mark, Jr. As to counts b-1 to
b-4, d-1 to d-4, and j-1 to j-4 concerning the sexual abuse allegations, the
agreement noted only that Mark C. and Matthew S. did not appear for the
mediation. Count b-5, regarding mother’s
mental or emotional problems and her failure to take prescribed psychotropic
medication, would be dismissed without prejudice. Mother’s written waiver indicated she was
submitting on the petition based on the social worker’s report and waiving her
trial rights only as to counts a-1, b-6, j-5, and b-5. Accordingly, when the juvenile court accepted
the waiver, mother’s counsel expressly noted there was agreement only as to
specified counts. The hearing then
proceeded as to the rest of the petition.
The court gave each party the opportunity to offer witnesses or
documentary evidence, including mother. Only counsel for DCFS offered any
evidence. We further note that the
parties several times referred to a tentative order. Although the record does not include the
content of that tentative, mother’s counsel indicated the court had previously
expressed a concern that mother knew about what was going on at home, and
mother’s counsel specifically argued mother had adequately protected the
children.
The record does not support
mother’s claim that she submitted on the entire petition, and was then
disadvantaged when the court decided to add an amended sexual abuse count. Before the hearing began, the court
apparently signaled its inclination to name mother in an amended count relating
to sexual abuse of the children. At the
hearing, mother clearly indicated she was submitting only on the amended
physical abuse counts. The court
accordingly provided her an opportunity to offer testimony or other evidence
relevant to the other counts of the petition.
She offered no such evidence.
Instead, mother’s counsel simply argued mother did not fail to protect
the children from sexual abuse. (See
683, 689 [amendment to dependency petition did not violate due process where
parent had explicit notice of issues being litigated and court conducted full
hearing affording each party opportunity to be heard]; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041-1042 [amendments
to conform to proof should be allowed unless pleading as drafted prior to the
proposed amendment would have misled party to its prejudice].)
Mother concedes the juvenile court
was not required to accept the parties’ mediation agreement. (In re
Lance V. (2001) 90 Cal.App.4th 668, 675; In re Jason E. (1997) 53 Cal.App.4th 1540, 1547.) Thus, even to the extent the parties agreed
there would be no mention of mother in the sustained petition, the court was
not required to accept that part of the agreement. In accepting mother’s submission and waiver,
the court did not represent or in any way indicate it was adopting the parties’
agreement on any counts except those mother specifically identified on her
written waiver. Mother’s rights to a
contested evidentiary hearing remained intact as to the remaining counts.
In sum, the record does not support
mother’s claim that she submitted on the entire petition and waived her right
to a contested hearing on all counts.
Even if the court’s amendment to the petition contradicted the letter or
spirit of the parties’ mediation agreement, mother’s rights as to the amended
count were unaffected by her submission on the physical abuse counts. The court had no reason to sua sponte offer
mother the opportunity to withdraw her submission on counts a-1, b-6, j-5, and
b-5, since the court accepted the parties’ mediation agreement on those
counts. There was no error.
The Juvenile Court’s
Jurisdictional Findings as to Mother Were Supported By Substantial Evidence
Mother
argues there was insufficient evidence
to support the juvenile court’s amended
allegation that, in addition to the actions of an unknown perpetrator, mother’s
“lack of appropriate support†placed the children at risk of physical harm,
damage, danger and sexual abuse. We
disagree.
“ ‘We
review the juvenile court’s jurisdictional findings for sufficiency of the
evidence. [Citations.] We review the record to determine whether
there is any substantial evidence to support the juvenile court’s conclusions,
and we resolve all conflicts and make all reasonable inferences from the
evidence to uphold the court’s orders, if possible. [Citation.]’
[Citation.] ‘ “ ‘The ultimate
test is whether it is reasonable for a trier of fact to make the ruling in
question in light of the whole record.’
[Citation.]†[Citation.]’ [Citation.]â€
(In re V.M. (2010) 191
Cal.App.4th 245, 252.)
“The three elements for jurisdiction under
section 300, subdivision (b) are: ‘ “(1) neglectful conduct by the
parent in one of the specified forms; (2) causation; and (3) ‘serious physical
harm or illness’ to the [child], or a ‘substantial risk’ of such harm or
illness.†’ [Citations.]†(In re
B.T. (2011) 193 Cal.App.4th 685, 692.)
The issue in this case was whether mother engaged in any neglectful
conduct, which the court phrased as “lack of appropriate support,†that placed
the children at substantial risk of serious physical harm or illness. Although the evidence in the record largely
indicated mother acted promptly upon suspecting the children had been subjected
to some form of sexual abuse, there was also evidence from which the juvenile
court could infer mother should have suspected abuse earlier or taken action to
protect the children from harm.
Mother admitted to the “up frontâ€
assessor that Matthew S. engaged in inappropriate and questionable behavior
with the children. Mother said Matthew
S. not only mutilated the children’s toys, but also drew “perverted†drawings
in their notebooks. This was the context
in which the court could consider Mark, Jr.’s statement that Matthew S. touched
him while he was “sleeping,†but stopped when mother came into the room. Mother also described significant physical
abuse. According to mother, Matthew S.
physically abused her while she was pregnant.
Although this happened years before any allegations of sexual abuse,
mother took no action to remove herself or the children from Matthew S. until
after the DCFS investigation in the instant case was underway. While the evidence was consistent that the
children did not witness physical violence between mother and Matthew S., M.C.
said mother admitted Matthew S. had given her bruises, Mark, Jr. said Matthew
S. spanked him “really hard,†and he heard Matthew S. and mother arguing a
lot. DCFS reported mother had previously
learned from a friend that the children were touching each other’s private
parts while under a blanket; the DCFS report did not state when the friend gave
mother this information. Mark, Jr. told
a DCFS social worker he had played the touching game with his siblings on
multiple occasions. Mother also allowed
Mark C. to move in with the family, despite the fact that he had caused serious
physical harm to another child in 2009, leading to a sustained dependency
petition as to mother’s children.
It is undisputed that once mother concretely
suspected sexual abuse, she acted promptly to address the situation. Yet, mother’s inaction in response to Matthew
S.’s behavior with the children short of inappropriate touching provided
evidence that mother’s “lack of appropriate support†placed the children at
risk of substantial harm. We also
disagree that the jurisdictional findings regarding mother were
inconsistent. The juvenile court
accepted the parties’ mediation agreement as to the physical abuse counts and
removed references to mother from those counts.
However, the court’s acceptance of this negotiated resolution of one set
of counts was not the legal equivalent of a finding that mother did not engage
in neglectful conduct as required for a finding under Welfare and Institutions
Code section 300, subdivision (b) related to the sexual abuse allegations or
neglect in general.
DISPOSITION
The
juvenile court order is affirmed.
BIGELOW,
P. J.
We concur:
FLIER,
J.
GRIMES,
J.
family had a prior history with the dependency system. In May 2009, the juvenile court sustained a
dependency petition alleging Mark C. caused serious physical injury to his
infant second cousin by throwing him on a bunk bed; mother had a history of
substance abuse, including methamphetamine; mother had a history of emotional
problems, was hospitalized in 2008, and had stopped taking psychotropic
medications; and Mark C.’s marijuana use interfered with his ability to provide
regular care for the children. Although
the children were detained from mother, in February 2010 they were returned to
mother’s home. In December 2010, the
“case was closed.â€
our own motion, we augment the record to include the “up front assessmentâ€
contained in the juvenile court file.
(Cal. Rules of Court, rule 8.155(a)(1)(A).) Although the written assessment was not
included in the clerk’s transcript on appeal, it was part of the juvenile court
record, and was referenced in the DCFS detention report.
