In re A.P.

Filed 10/22/08 In re A.P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Reversed with directions.

Nicole Williams, under appointment by the Court of Appeal, for Appellants.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Respondent R.H.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Respondent T.P.

Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minor M.H.

Appellants A.P. and C.H. (the children) were named in a juvenile dependency petition alleging that their older sister, M.H., was sexually molested by the father of M.H. and C.H. (father).^[1] At a jurisdictional hearing, all parties with the exception of the children, i.e., the Riverside County Department of Public Social Services (DPSS), father, the childrens mother (mother), and M.H., purportedly agreed that the petition would be dismissed and the social worker would instead undertake a program of supervision. (Welf. & Inst. Code,^[2] 301.) The juvenile court approved the arrangement on the record, after which it directed the deputy county counsel to prepare an appropriate agreement for the parties signature, and an order for the courts signature. Neither the order nor the agreement appears in the record, and presumably were never documented.

In light of the foregoing, DPSS, father, mother, and M.H. (collectively referred to as respondents) urge us to dismiss the appeal. We decline. Instead, as explained below, we deem the appeal as having been taken from an order of dismissal which should have been rendered and, viewing the challenged order in that light, remand the matter to the juvenile court with directions to substantiate the basis for its order.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2007, a juvenile dependency petition filed under subdivisions (b), (c), and (d), of section 300 alleged that M.H., then age 13, had been sexually abused by father. The petition also alleged that under subdivision (j) of section 300, her 12-year-old brother, A.P., and her 10-year-old sister, C.H., were at risk of suffering from similar harm. M.H. had reported that the abuse occurred over a period of two years, starting when she was eight years old and ending when she was 10. Father denied the allegations; mother expressed disbelief, claiming that it never happened. The children and M.H. were placed together in a foster home.

A jurisdictional hearing was held the following August, by which time all three children had been returned to mothers custody. The court heard testimony from M.H., who continued to maintain that she had been molested by father. The court also heard testimony from a counselor at M.H.s school and her seventh grade teacher, to whom she had initially reported the abuse. The court called a brief recess, and when the proceedings resumed, had this to say: All parties have had a conversation regarding resolution of this case. Were in agreement at this time, or would submit on the proposed [section] 301 agreement.^[[3]] That [section] 301 agreement, that the parties are to participate in individual counseling for father, individual counseling for mother, and mother is still attending Parents United. [] And, also, we would have a [section] 301 agreement that family counselingonce [M.H.]s counselor agrees its appropriate for counseling, fatherIm sorry, Daughters United.

Counsel for mother added: I would ask mother be required to do counseling, as well, if father is. Mother has been very supportive of [M.H.] I think counseling for mother is very appropriate. The deputy county counsel agreed: Thats fine. Just counseling for mother.

Everyone was agreeable to these terms, except counsel for the children, who stated: And [the] Court notes my objection, for the record. A moment later, the court acknowledged that the concerns of counsel for the children were noted prior to the parties coming back in. Those concerns, however, are not reflected in the record.

The court then directed the deputy county counsel to prepare a written documentation of that, along with an order for me to sign approving it. The deputy county counsel assured the court she would have the parties sign the document that same day and would bring it to court the following day.

A week later, the childrens counsel filed a notice of appeal, but failed to designate on the printed form, by check mark or otherwise, the order or judgment from which she was appealing. She simply checked the box indicating she believe[d] arguably meritorious grounds exist for a reversal or modification and appealing is in the clients best interest.

Neither an order nor the underlying stipulation appears in the record, and attempts to locate such documents have been futile. As indicated above, respondents therefore maintain the appeal must be dismissed.^[4] We disagree. In ABF Capital Corp. v. Grove Properties Co. (2005) 126 Cal.App.4th 204, after acknowledging that this courts policy is ordinarily not to save an erroneous appeal from a nonappealable order, we stated: Nonetheless, where, as here, it is clear that an appealable judgment should have been rendered, the appellate court is empowered to order the trial court to enter the judgment nunc pro tunc. The judgment is then treated as entered when it should have been entered. [Citation.] (Id. at p. 213.) The same rationale applies here. Because the court expressly stated on the record that it would approve the [section 301] arrangement that has been discussed, and all parties obviously believe that their agreement has been implemented and the dependency petition dismissed, we shall exercise our inherent power to order the trial court to enter an order of dismissal nunc pro tunc, which may then be treated as an appealable order.^[5]

DISCUSSION

The essence of the childrens appeal is that the juvenile court erred in approving the section 301 agreement for voluntary services without first considering whether dismissal of the petition was in their best interests.^[6] Before addressing this issue, we dispose of the contentions of father and M.H. regarding the lack of standing of the children to challenge the order on appeal, and that they waived or forfeited the issue by objecting without presenting any additional evidence.^[7]

A. The children have standing.

To obtain a review of a ruling on its merits, a party must establish that he or she is aggrieved. To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the courts decision. A nominal interest or remote consequence of the ruling does not satisfy this requirement. (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) Where the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests. . . . [Citation.] In the absence of such intertwined interests, a [party] is precluded from raising issues on appeal which did not affect [that partys] own rights. [Citation.] (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193.)

Father and M.H. contend the children are not aggrieved because they deny any sexual abuse or awareness of any sexual abuse, are happy in the home, and they feel safe and unafraid there; thus, there is no issue as to their protection. This is not the test. Indeed, the childrens interests are intertwined with M.H.s; if not for M.H.s purported sexual abuse, the children would not have been named in the petition. Thus, should it be determined that dismissal of the petition was improper, protection of the children will remain a goal of DPSS. We therefore conclude that the children have standing to obtain appellate review in that dismissal of the petition, and hence the proceeding, impacts their right to be protectedthe very essence of the dependency system.

B. There was no waiver or forfeiture.

There is no merit to the position espoused by father and M.H. that the children waived or forfeited their right to question the propriety of the courts ruling. Father insists that the childrens counsel had an opportunity to supply whatever other evidence counsel possessed to support the allegations in the petition, but counsel did not do so. M.H. also contends the children were required to produce further evidence. Citing Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069 (Allen M.), father argues the burden was on the children and their counsel to persuade the juvenile court that approval of the section 301 agreement and dismissal of the petition was not in their best interests. The issue presented in Allen M. was whether the agency had an absolute right to dismiss a dependency petition over the minors objection. As the court there said: [W]hen the Department wishes to dismiss a petition . . . it must notify all interested persons in order to afford each the opportunity to object and be heard. If a parent or minor does object [to dismissal of a petition], resolution of the matter is properly by an order to show cause hearing requiring the Department to establish why the petition should be dismissed. (Id. at p. 1074.) The Allen M. court also said that it view[ed] the legislative scheme as affording minors counsel great latitude in presenting pertinent information to the court so as to assure the most appropriate resolution for the minor. (Id. at p. 1075.) The present case is distinguishable, however, in that DPSS did not move for dismissal of the petition outright; rather the parties (other than the children) agreed they would proceed by way of a section 301 arrangement. In any event, we are provided with no authority for the proposition the childrens counsel was required to do anything more than voice her objection on the record. Nor do we read Allen M. as stating such a requirement. Allen M. holds that, although a social worker has discretion to file a dependency petition, court approval is required before the petition may be dismissed. (Allen M., at p. 1073.) The Allen M. court further held that where, as here, the request for dismissal is offered in the context of a negotiated plea, the court must ensure the agreement . . . [does] not compromise the childrens welfare. (Id. at p. 1074.)

In any event, the court in the present case indicated that counsel for the children had made her concerns known, although it refrained from stating the nature of those concerns. As the children point out in their reply brief, [i]t was obvious that counsel disagreed with the agreed-upon disposition among the parties at that time . . . . We are at a loss as to what more the childrens counsel could have done at that time.

Turning to the merits, the issue before us is whether the court, in dismissing the petition and approving the section 301 agreement, ensured that the welfare of the children was not being compromised.

C. On this record, we cannot say that the welfare of the children was not compromised by the courts rulings.

Pursuant to section 301, where a social worker determines that a child is within the jurisdiction of the juvenile court . . . the social worker may . . . subsequent to dismissal of a petition . . . and with consent of the childs parent . . . undertake a program of supervision of the child. (Italics added.) Pursuant to section 390: A judge of the juvenile court in which a petition was filed . . . may dismiss the petition . . . if the court finds that the interests of justice and the welfare of the minor require the dismissal, and that the parent . . . of the minor is not in need of treatment or rehabilitation. Thus, a program of supervision may not be implemented unless and until the dependency petition has been dismissed, which requires a best interests finding and a finding that the childs parent is not in need of treatment or rehabilitation.

Although the court did not make express findings, its ruling may be affirmed if its implied findings are 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. [Citation.] (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)

Father contends that, in light of the courts statement that any concerns of the children were noted prior to the parties coming back in, it may be implied that the court explored the issue and, having found that M.H. had not been sexually abused, rejected the childrens position the proposed agreement was not in their best interests. Similarly, mother contends that it is reasonable to infer that the court found the section 301 agreement to be in the childrens best interests. She contends the court undoubtedly did not believe M.H., or else it would not have agreed to the voluntary service plan.

In our view, in approving the section 301 agreement as proposed, which provided for mother and father to participate in individual counseling, the court impliedly found that the parents were in need of treatment. Such a finding is inconsistent with its dismissal of the petition, which requires a finding that the parent is not in need of treatment. Additionally, because section 301 applies only where the social worker determines that a child is or will soon be within the courts jurisdiction, the court, in approving the agreement, impliedly found that there was evidence to support jurisdiction over the children. And, if M.H. is deemed to be within the jurisdiction of the court, it follows that there is at least some truth to the allegations in the petition.

In light of what we view as an inconsistency between the courts implied findings, and because the record does not adequately reflect the courts views, we have no way of knowing the basis for its approval of the agreement or its dismissal of the petition. Thus, on this record we cannot say the childrens welfare was not compromised by the courts approval of the section 301 agreement and its dismissal of the petition. Remand to the juvenile court for clarification is required.

DISPOSITION

The matter is remanded to the juvenile court with directions to enter an order setting forth in detail its reasons for approving the section 301 agreement and its reasons for dismissing the petition. The court may, if it so chooses, hold a hearing at which the parties may present new evidence, including, but not limited to, evidence of the manner

in which the parties have complied with the section 301 agreement reached at the August 9, 2007, hearing, including the extent of their participation in counseling and the progress made.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

KING

J.

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^[1] A.P.s alleged father was not involved in the dependency proceeding and is not a party to this appeal.

^[2] Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[3] Section 301 provides, in pertinent part: (a) In any case in which a social worker after investigation of an application for petition or other investigation he or she is authorized to make, determines that a child is within the jurisdiction of the juvenile court or will probably soon be within that jurisdiction, the social worker may, in lieu of filing a petition or subsequent to dismissal of a petition already filed, and with consent of the childs parent or guardian, undertake a program of supervision of the child. If a program of supervision is undertaken, the social worker shall attempt to ameliorate the situation which brings the child within, or creates the probability that the child will be within, the jurisdiction of Section 300 by providing or arranging to contract for all appropriate child welfare services . . . within the time periods specified . . . . No further child welfare services shall be provided subsequent to these time limits. . . . Nothing in this section shall be construed to prevent the social worker from filing a petition pursuant to Section 332 when otherwise authorized by law.

^[4] It is curious that not one of the respondents expressed any concern that the documents could not be located, insisting only that we should affirm what the trial court purported to do. This causes us to ask what, if anything, has been accomplished with this family since the August 2007 hearing.

^[5] Alternatively, we could treat the appeal as a petition for extraordinary writ relief. Citing In re William M. (1970) 3 Cal.3d 16, 24-25 and In re Dennis H. (1971) 19 Cal.App.3d 350, 352-353, father argues, because there were no jurisdictional findings or orders made and because the matter did not proceed to a dispositional hearing, this Court should treat this challenge to the alleged dismissal of the petition in the same manner in which detention challenges are reviewed. This matter should be reviewable only by writ petition.

^[6] In their opening brief, the children argued counsel for M.H. rendered ineffective assistance of counsel in agreeing to dismiss the petition. In response, mother and father argued the children lacked standing to raise this issue, and father and M.H. asserted that M.H.s counsel did not render ineffective assistance. In their reply brief, the children withdrew the issue, stating they were satisfied that M.H.s appellate counsel has investigated this particular claim.

DPSS has filed a letter brief, joining in fathers contentions that the appeal should be dismissed because no judgment was entered; the children forfeited and waived any issue as to the courts approval of the section 301 agreement; and the juvenile court did consider whether dismissal was in the best interests of the children.

^[7] Mother does not contend the children lack standing, nor does she argue they waived or forfeited the issue. She contends only that substantial evidence supports the courts order.