In re M.V.

Filed 5/22/08 In re M.V. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

M.V., the three-year-old son of Ysela V. (Mother), suffered devastating injuries under circumstances that suggested deliberate abuse and neglect. After the Solano CountyHealth and Social Services Department (Department) filed a petition under Welfare and Institutions Code[1] section 300, subdivisions (a), (b), (e), and (j) with respect to M.V. and his six siblings, a contested jurisdictional hearing was begun. Prior to Mothers submission of evidence, the parties engaged in an off-the-record discussion with the juvenile court and reached an agreed disposition. Under that agreement, the court was to sustain the allegations under section 300, subdivisions (a), (b), and (j), reject the allegations under subdivision (e), and grant reunification services to Mother. In reliance on that agreement, Mother waived any further contest of the jurisdictional allegations of the petition.

Although the juvenile court made the agreed factual findings, it denied reunification services after a subsequent dispositional hearing. Mother contends the trial court abused its discretion in failing to abide by the terms of the agreement. While we do not agree that the agreement constrained the courts free exercise of discretion in selecting the appropriate disposition, the juvenile court was required, before departing from the terms of the agreement, to offer Mother the opportunity to withdraw from it and contest the jurisdictional allegations. We therefore vacate the denial of reunification services and remand for further proceedings.

I. BACKGROUND

M.V., then nearly three years old, and his six siblings were the subject of a petition under section 300, filed September 7, 2006. The Department detained M.V. on the basis of allegations that he had suffered unexplained non-accidental life-threatening injuries while in Mothers care and that Mother failed to seek appropriate and timely care for the injuries. Although there was no evidence M.V.s brothers and sisters had been abused, they were subject to allegations under section 300, subdivision (j) based on M.V.s treatment.

The petition was supported by a report and recommendation stating that M.V. was taken to the hospital suffering from a perforated colon, brain hemorrhage, and bumps and bruises. There was reason to believe that M.V.s perforated colon, an injury that would have caused him excruciating pain, was left untreated by Mother and her boyfriend for up to two or three days before M.V. was brought to the hospital. By that time, feces had spread throughout his body cavity, causing massive infection, and he had suffered cardiac arrest brought on by 18 hours of vomiting. The lack of blood circulation during his cardiac arrest left M.V. with severe brain damage, rendering him in a vegetative state. The accounts of the cause of M.V.s injuries given by the various family members, including Mothers live-in boyfriend, were confused and in conflict.

Although the juvenile court found that a prima facie case of neglect had been made and initially detained M.V., the court later dismissed the petition after a contested jurisdictional hearing on September 27, 2006. The juvenile court concluded that the initial injuries likely resulted from roughhousing among M.V. and his siblings. Although there was expert opinion suggesting that M.V.s abdominal injury had been neglected for at least two days, the court found that Mother and her boyfriend took M.V. for treatment within 19 hours after he first showed signs of distress.

Less than three months later, on December 19, 2006, a second section 300 petition was filed with respect to M.V. and his siblings. Allegations under subdivision (a) of section 300 stated that M.V. had been admitted to the hospital and found, despite his neurologically devastated condition, to have new injuries resulting from non-accidental trauma. Subdivision (b) allegations again stated that Mother had failed to obtain prompt treatment for these new injuries. The accompanying report and recommendation explained that Mother had brought M.V. to the doctor for treatment of an eye infection and a cold. When examining him, the doctor noticed that M.V.s leg was broken and badly swollen. She ordered a full-body X-ray, which revealed multiple healing fractures on the minors body in various healing stages, a pattern consistent with deliberate abuse. M.V. was ultimately determined to have 13 distinct bone fractures, none of which were present when he was brought to the hospital three months earlier. In addition, both of M.V.s eyes were so severely infected, in a manner consistent with a deliberate act of intent to harm, that he was rendered blind.

M.V. was detained again. A first amended petition was filed on February 6, 2007, containing further allegations about M.V.s injuries, including, for the first time, allegations of severe physical abuse under section 300, subdivision (e). Subdivision (e) permits detention of a child if [t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. A finding against Mother under subdivision (e) would have significantly restricted the availability of reunification services to her. ( 361.5, subds. (b)(5), (c); see Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 846848.)[2] On May 18, a second amended petition was filed, adding new allegations of abuse based on information developed since the earlier filing.

The jurisdictional hearing was begun on May 29, 2007. After three Department witnesses were examined, the matter was continued in anticipation of further testimony. In the interim before the next session, Mother filed hearsay objections to various materials contained in the second amended petition and Department reports.

The jurisdictional hearing resumed on June 21, 2007. At the commencement of the hearing, the juvenile court announced that the parties had conferred in chambers. The court then asked the Departments counsel to summarize the discussions. Counsel responded, [B]ased upon the Courts indicated ruling and what the positionas I understood it in chambers, that the mother was prepared to submit on the petition with the exception of the [section 300, subdivision] (e) allegations and wanted an indicat[ion from] the Court as to the (e) allegation[s]. The indicated rul[ing] was that the Court was not prepared to sustain the (e) allegations and would direct the offering of services. Counsel continued, Then based on those representations, the Department is prepared to rest its case at this time, with the understanding that all of the evidence and all of the reports that have been received by the Court would constitute the factual basis of whatever decision the Court were to render with regard to the allegations except for the (e) allegations.

Counsel for the other parties confirmed their agreement with the Departments attorneys characterization of the understanding reached in chambers. Counsel for Mother withdrew her hearsay objections in reliance on the agreement. The court then found, [b]ased on the stipulation, that the Department had proven the allegations under section 300, subdivisions (a), (b), and (j), but had not proven the allegations under subdivision (e).

After discussion about the scheduling of a dispositional hearing, counsel for Mother explained to Mother, in open court, the events that had just transpired and obtained a waiver of her rights, saying, We were going to come back today and continue the trial and put on more witnesses. And instead of doing that, weve reached an agreement where theres a finding been made, essentiallybottom line to you is you are going to get reunification services offered. The [section 300, subdivision] (e) allegations are not found to be true. [] . . . [] You are giving up your right, though, in doing this to fight . . . all of the other allegations. Were resting now and the judge is taking jurisdiction of your children, and were not putting on witnesses, and were not arguing. You know what the results are going to be. [] . . . [] So we have chosen not to have a trial today; weve chosen not to put on witnesses, and weve chosen not to cross-examine witnesses. [] . . . [] And we understood when we did this that the judge was going to make the findings that he just did, which is take jurisdiction of your children but not finding the allegations [under subdivision (e)]. [] . . . [] And you understand we had a right to fight this and try to win it all, right? After Mother responded, concurring in the waiver, the court said, All right. Im satisfied.

Although the Departments disposition report, filed 11 days later, stated that the Department was prepared to offer reunification services to Mother, the report was harshly critical of her attitude, character, and conduct. Throughout, Mother had been uncooperative with the Department in its efforts to protect her children, and she continued to have contact with the boyfriend suspected of abusing M.V., despite a court order against such contact.

A contested dispositional hearing was set for July 16, 2007. On that day, M.V.s siblings were the primary focus of Mothers testimony and the parties argument.[3] At the dispositional hearing, counsel for Mother assumed that she would be granted reunification services regarding M.V., noting, [S]he reports shell jump in and try to unify with [M.V.] and do whatever she needs to keep the children. At the end of the hearing, the juvenile court took the matter under submission.

In its dispositional order filed three days later, the juvenile court denied reunification services to Mother. An explanatory statement attached to the order noted Mothers uncooperative attitude and concluded, Although [Mother] states that she is willing to participate in services, the court finds that her resistance to benefit from such services renders her participation of little value.[4] No mention was made of the parties earlier agreement.

II. DISCUSSION

Mother appeals the juvenile courts denial of reunification services, contending that the court was required to comply with the understanding under which she waived her right to contest the Departments jurisdictional allegations. We review a denial of reunification services for abuse of discretion. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)

We have found no legal authority addressing, or even mentioning, the type of agreement reached in this dependency proceeding, which involved not only the parties but the juvenile court itself. The law is clear, however, that agreements reached solely among the parties to a dependency proceeding do not bind the juvenile court in the exercise of its dispositional discretion. Two decisions illustrate the principle. In In re Jason E. (1997) 53 Cal.App.4th 1540 (Jason E.), the juvenile court terminated the parents reunification services. Thereafter, extended family members of the dependent child fell into a dispute over the childs future. (Id. at p. 1544.) Following mediation, the family agreed that the child would be placed in long-term guardianship with an aunt and uncle. Disregarding the agreement, the juvenile court sided with the social services agency, terminated parental rights, and authorized the childs adoption. (Id. at p. 1545.) In affirming the juvenile courts refusal to abide by the family members agreement for guardianship, the court noted that the juvenile court had the sole power to determine Jasons permanent plan, and no agreement by the parties could strip the court of that power. (Id. at p. 1547, fn. omitted.)

Similarly, in In re Joshua G. (2005) 129 Cal.App.4th 189 (Joshua G.), the social services agency reached an agreement with the dependent childs parents to recommend guardianship, again after the juvenile court had terminated parental reunification services. (Id. at pp. 194195.) Although the agency later appeared to conclude that adoption was the more appropriate disposition, it adhered to its recommendation of guardianship in deference to the agreement reached with the parents. The juvenile court nonetheless terminated parental rights and authorized adoption of the child. (Id. at p. 195.) In refusing to apply estoppel against either the juvenile court or the social services agency, the Court of Appeal held that the agency and the juvenile court had an overriding duty to act in the best interests of the dependent child that could not be constrained by agreement. (Id. at p. 197; see similarly In re Lance V. (2001) 90 Cal.App.4th 668, 675 [mediation agreement among parties not binding on juvenile court]; but see In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1097 [juvenile court abused its discretion in failing to accept agreement of parties when there was no showing of continued risk to the children].)

Two factors distinguish these cases from Mothers situation. First, in both Jason E. and Joshua G., the agreement was reached further along in the dependency process, after the affected parents had a full opportunity to contest jurisdiction and participate in the reunification process. Because reunification services had been terminated, the parents retained few, if any, procedural rights at the time the agreements were made, and in neither case did the parties sacrifice any procedural rights in entering into the agreement. Second, in neither case was the juvenile court involved in the process of reaching agreement, nor could the court be considered a participant in the agreement itself. While the agreements in those cases reflected the wishes of important parties in the processthe parents, extended family members, and, in Joshua G., the social services agencythose wishes were necessarily advisory to the juvenile court, which retained the ultimate responsibility for determining the childrens best interests. Particularly in light of the juvenile courts lack of involvement, there was no reason for the parties to believe that the agreements could or would bind the court in determining those best interests.

The agreement in this matter was quite different. First, it was arrived at in the middle of a contested jurisdictional hearing, prior to Mothers presentation of evidence in opposition to the Departments allegations. Mother was at the start, rather than the end, of the dependency process. In consenting to the juvenile courts sustaining certain of the jurisdictional allegations, Mother knowingly waived her right to present evidence refuting the Departments contentions and withdrew objections to certain of the Departments evidence. Second, Mother did so only after receiving assurances from the court that it would rule in favor of granting her reunification services.[5] The approval of the juvenile court was crucial to this agreement. There is no reason to believe that any of the participants viewed this agreement, which was arrived at with the participation and approval of the juvenile court, as merely advisory. It featured one partys conscious waiver of procedural rights on the assurance of a particular outcome in the proceedings. Accordingly, this agreement more closely resembled a plea bargain in a criminal prosecution than it did the agreements in Jason E. and Joshua G.

There is precedent for looking to criminal procedure for guidance in the dependency context. California Rules of Court, rule 5.682, which governs the commencement of a dependency jurisdictional hearing, permits a parent to admit jurisdictional allegations, plead no contest, or submit to the allegations based on the information provided by the social services agency, without actively contesting the hearing. (Cal. Rules of Court, rule 5.682(c)(f).) In determining the duties of the juvenile court when accepting a parental no-contest plea under former California Rules of Court, rule 1449, the predecessor to rule 5.682, the court in In re Patricia T. (2001) 91 Cal.App.4th 400 (Patricia T.), looked to decisions from criminal law. The parent in Patricia T. entered a plea of no contest after the social services agency had submitted a report recommending that the court grant reunification services. At the dispositional hearing following the plea, the juvenile court rejected the agencys recommendation and denied services. (Id. at p. 403.) On appeal, the parent contended that the juvenile court should have advised her at the time she made her plea that it could result in the denial of services, contrary to the recommendation of the agency. In determining the juvenile courts responsibility, the Court of Appeal analogized the no-contest plea to a guilty plea in a criminal proceeding. (Id. at p. 404.) Relying on decisions holding that there is no constitutional requirement that the court advise a criminal defendant of the consequences when accepting a guilty plea, the court concluded that the juvenile court had no duty to advise the parent of the consequences of the no-contest plea.[6] (Id. at pp. 406407; see similarly In re S.G. (2003) 112 Cal.App.4th 1254, 1259.)

Although we recognize, like Patricia T., that dependency proceedings are civil in nature (Patricia T., supra, 91 Cal.App.4that p. 404), we agree with Patricia T. that the law governing criminal plea bargains provides useful guidance in this area because of the similarity between the procedures. Just as the no-contest plea in Patricia T. resembled a criminal guilty plea, Mothers waiver of rights resembled a criminal plea bargain. Indeed, Mothers transaction resembles the form of a criminal plea agreement even more closely than the no-contest plea in Patricia T., since Mothers procedural concession was made in anticipation of a promised disposition.

Criminal plea bargains are authorized by Penal Code section 1192.5, which permits a criminal defendant to enter a plea of guilty specifying an associated punishment. (See People v. Johnson (1974) 10 Cal.3d 868, 871.) If the plea is accepted in open court by the prosecuting attorney and approved by the court, the defendant cannot be given a sentence more severe than that specified in the plea. (Pen. Code,  1192.5.) In the process of entering the guilty plea, the defendant necessarily waives various procedural rights, including the right to a trial. (People v. Johnson, at p. 871.)

Like the dependency cases cited above, criminal law holds that [t]he imposition of sentence and exercise of discretion are fundamentally and inherently judicial functions and no bargain or agreement can divest the court of the sentencing discretion it inherently possesses. (People v. Ames (1989) 213 Cal.App.3d 1214, 1217.) Nonetheless, it has long been recognized that when a criminal court either refuses to approve a plea bargain or concludes that its prior approval was improvident, the court does not have the discretion to disregard the plea agreement. Rather, if the court concludes it cannot honor the agreement, it must afford the defendant the opportunity to withdraw the guilty plea and the associated waiver of procedural rights. (People v. Delles (1968) 69 Cal.2d 906, 910; Pen. Code,  1192.5; People v. Masloski (2001) 25 Cal.4th 1212, 1217.) Although contained in Penal Code section 1192.5, this principle has a constitutional basis:  [T]he requirements of due process attach . . . to the implementation of the bargain itself. It necessarily follows that violation of the [plea] bargain by an officer of the state raises a constitutional right to some remedy.  (People v. Crandell (2007) 40 Cal.4th 1301, 1307; see Santobello v. New York (1971) 404 U.S. 257, 262263.)

The same analysis applies here. A parents interest in the companionship, care, custody, and management of his or her children constitute  a fundamental civil right  that cannot be abridged without due process. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 117.) Like a criminal defendant waiving the right to a trial, Mother waived the due process right to present evidence disputing the jurisdictional allegations leading to the detention of her child. In return for this waiver, she was assured by the court that she would be granted reunification services with M.V. The constitutional nature of her waiver requires that these assurances be respected.

There is no question that, as the Department argues, the juvenile court retained the obligation to exercise its discretion in M.V.s best interests at the time of the dispositional hearing, regardless of the agreement. The juvenile courts assurances at the jurisdictional hearing did not require the court to award reunification services, particularly if additional evidence or further reflection caused it to conclude that Mother was not qualified to receive such services. On the contrary, the juvenile court was requiredto deny reunification services to Mother if, at the time of the dispositional hearing, the court was persuaded denial was the appropriate course.

As in criminal law, the recognition of the predominant nature of the juvenile courts discretion does not mean that the juvenile court was free to ignore its assurances. In light of the substantial waiver of constitutional rights made by Mother in conceding the jurisdictional allegations, it was an abuse of discretion for the juvenile court to reverse its position and deny reunification services without first giving Mother the opportunity to withdraw from the agreement. Because her decision was predicated on a particular disposition, the juvenile court could not reach a different disposition unless Mother had first been given an opportunity to repudiate her concession to the courts factual findings, reopen the jurisdictional hearing, reassert her evidentiary objections, and retry the jurisdictional allegations. Given her reliance on the juvenile courts assurances that she would be granted reunification services, fairness and due process required no less.

Accordingly, the denial of reunification services must be vacated, and the court must give Mother the option of withdrawing her consent to the courts factual findings and her procedural waivers. In the event Mother elects to reopen the jurisdictional hearing, the juvenile court should vacate its factual findings on all jurisdictional allegations.[7]

III. DISPOSITION

That portion of the juvenile courts dispositional order denying reunification services to Mother is vacated, and the matter is remanded to the juvenile court for further proceedings consistent with this decision.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

A118900

In re M.V., a minor

[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] The provision of reunification services plays a central role in Californias child dependency system.  The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citation.] When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family. (In re Celine R. (2003) 31 Cal.4th 45, 52.) As a general rule, reunification services are offered . . . in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) Nonetheless, reunification services can be denied under section 361.5, subdivision (b). Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. (In re Baby Boy H., at p. 478.)

[3] No issues are raised in this appeal concerning the juvenile courts rulings toward M.V.s siblings.

[4] Section 361.5, subdivision (b)(6) permits the denial of reunification services if the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child . . . by a parent or guardian, . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.

[5] Although the Department argues that [t]he record is very unclear as to the nature of the stipulation between the parties,  we find no ambiguity. A fair reading of the record demonstrates unequivocally that Mother agreed to waive the presentation of her evidence and withdraw her evidentiary objections on the strength of the juvenile courts assurancesinitially given off the recordthat it would reject the section 300, subdivision (e) allegations and grant reunification services.

[6] The Patricia T. court reasoned, [A]s our Supreme Court explained in People v. Walker (1991) 54 Cal.3d 1013, 10201023, advisements about the consequences of a plea in criminal proceedings are not constitutionally mandated, unlike advisements regarding constitutional rights. Rather, the rule compelling advisements about the consequences of a plea is a judicially declared rule of criminal procedure. (Id. at p. 1022.) . . . [A]lthough admonitions concerning the waiver of rights in dependency proceedings are rooted in constitutional considerations, the specific nature of any advisements about the consequences of such waivers are set solely by [the Rules of Court]. As we have explained, the requirements of [the Rules of Court] were met here. (Patricia T., supra, 91 Cal.App.4th at p. 407.)

[7] Because we must vacate the courts denial of reunification services and remand on these grounds, we need not address Mothers other asserted grounds for reversal.