In re J.E.

Filed 3/5/10 In re J.E. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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After mother E.E. submitted the matter in May 2009 on the social study, the juvenile court sustained the allegations of a petition that the minor J.E., born March 1996, came within its jurisdiction as a victim of sexual abuse from his mother and her cohabitant, and ordered the minors placement in foster care. (Welf. & Inst. Code,  300, subd. (d), 355, 361.5, subd. (c)). After the contested dispositional hearing in July 2009, the court ordered the minors placement in long-term foster care and denied reunification services to the mother on the basis of severe sexual abuse. (Id.,  358, 361, subds. (b)(6), (c), (h) & (i).)

The mother filed a timely appeal, and appears in propria persona after her appointed appellate counsel advised her that counsel could not find any arguable issues pursuant to In re Sade C. (1996) 13 Cal.4th 952. ( 395.) (Although preceding In re Phoenix H. (2009) 47 Cal.4th 835, this procedure does not conflict with that opinion.) As we interpret her filing, she reargues the evidence, attacks the credibility of the minor, and makes conclusory assertions that she was denied due process of law. We affirm the orders.

Facts and Proceedings

According to the detention report, the minor told a teacher in April 2009 that Edward B., his mothers cohabitant, had, over the course of the previous year, subjected the minor to mutual acts of significant sexual conduct. He also reported that Edward B. had compelled him to engage in significant sexual conduct with his mother. After taking the minor into protective custody ( 305), a deputy obtained the mothers statement. She confirmed that she had participated in significant sexual acts with the minor at their previous home only because Edward B. strongly encouraged it. The Department of Health and Human Services (DHHS) filed a petition two days later alleging the mother and her cohabitant had sexually abused the minor, and the mother had failed to protect the minor from Edward B., whom she knew was a registered sex offender.

The social study for the jurisdictional hearing noted that the mother, born in 1956, had married the minors father in 1979. The father died in 2004. The social worker believed the mother had speech and hearing difficulties, but could understand the questions posed to her. The mother asserted that she had associates degrees in bookkeeping and early-childhood education, and was taking classes toward her bachelors degree. The mother said that she had engaged in sexual acts with the minor only when Edward B. was present in response to the latters insistence. Edward B. was now in prison for violating parole after convictions for unrelated child molestation and oral copulation of a child; she was not maintaining contact with him, and did not have any interest in resuming a relationship on his release from prison.

The minor told the social worker that Edward B. first engaged in sexual acts with him the previous year; when Edward B. started to force his attentions on the minor, the latter locked himself in the bathroom and called his mother who was aware of Edward B.s existing interest in watching the minor commit acts of incest with her. She asked whether he needed her intervention; the minor said he would handle it. The minor then came out of the bathroom and submitted to mutual acts of significant sexual conduct. When the mother returned home, the minor told her not to call the police and wait instead until the right time. The minor reported a similar sexual encounter with Edward B. after they moved to their present address, and that Edward B. had frequently shown him pornographic videos. On a couple of dozen of occasions, Edward B. induced the minor to explore his mothers body orally; the minor denied committing any other type of sexual act with her. The minor wanted to remain in his mothers custody because he believed that she would be defenseless without him.

The minors teacher and an aide told the social worker that the minor lately exhibited bizarre behavior indicating he was under some sort of severe distress. The minor had told the aide only recently about his compelled sexual acts with his mother and her cohabitant. The aide was concerned that there was a recent report that the minor had solicited a sexual act from a younger classmate. The aide had also heard from another school employee that the mother intended on resuming her relationship with Edward B. on his release from prison.

Between March 2006 and October 2008, there had been eight referrals to DHHS regarding the minors family, involving the minor being disorderly and acts of violence between the minor and his mother, and between the minor and his mothers previous cohabitant.

The social study concluded that the minor, who objected to adoption, was not adoptable and therefore, a permanent plan of long-term foster care was necessary as a guardian could not be identified. The report also recommended the denial of reunification services to the mother for inflicting severe sexual abuse on the minor (and failing to protect the minor from it).

Before the jurisdictional hearing, the mother, with the concurrence of her attorney, executed a written waiver of her right to a trial and to testify at that trial, the right to confront and cross-examine witnesses, the right of compulsory process and her privilege against self-incrimination. As noted above, she submitted the matter on the social study, after which the juvenile court found jurisdiction over the minor.

At the dispositional hearing, the mother sought an order for reunification services. According to the addendum report, the social worker learned from the mothers counselor that the mothers IQ was low average, that is, 75-80 but not under 60. In an interview at the minors foster home regarding a possible act of sexual abuse between the minor and another foster child, the minor asserted that Edward B. had compelled him to have sex with his mother at knifepoint. Although the minor and his mother were devoted to each other, the report concluded that the minors well-being outweighed any benefit in providing reunification services.

At the hearing, the minor did not testify because he had become so distraught with guilt on hearing that his mother had been placed in custody and was facing charges that could result in a significant prison sentence that he had required treatment at a mental health facility. His advocate did not think that it would be in the minors best emotional interest to be present at the hearing. The only evidence before the juvenile court was the social study and its addendum; neither the mother nor any other witness testified. The juvenile court referee, as noted at the outset, made findings of severe sexual abuse warranting the denial of reunification services and of detriment to the minor if he were returned to his home, and ordered continued long-term foster care as the appropriate permanent plan.

Discussion

The mother has filed a six-page handwritten submission that does not have any discrete headings. We list her points in the order she makes them. Attempting to contradict the facts that are recited in the social study, the mother contends Edward B. forced her and the minor to engage in sexual acts only on four occasions in the former residence, twice with clothes on; the minor exaggerated the number of times he had oral sexual contact with her; she does not have any intention of renewing a relationship with Edward B.; and the minor instigated abusive behavior on the part of her cohabitants because the minor was overly protective of her. The mother argues that no one fully explained her waiver of rights at the jurisdictional hearing. She expresses remorse and the desire to finish parenting classes on completion of any prison sentence she may receive. Echoing her earlier assertion that the minor was prone to exaggeration, she claims he overstated the extent of the sexual abuse because she had been disciplining him for disinterest in his schooling. She asserts, I would like my rights to a fair hearing if possible, but she does not identify how her right to a fair hearing has been violated.

Wishing to prove that she is not a bad person, she asks consideration of the extent to which she along with the minor were victims of Edward B. In her conclusion, she again questions the veracity of the minors statements or his appreciation of the importance of telling the truth.

We review both jurisdictional findings and orders denying reunification services for sufficient evidence in support. (In re Harmony B. (2005) 125 Cal.App.4th 831, 839; In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.) To this end, we determine if a reasonable trier of fact could have reached the necessary factual conclusions (In re Angelia P. (1981) 28 Cal.3d 908, 924; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). We do not redetermine the credibility of a witness on which the trier of fact relied absent a showing of testimony that is inherently improbable as a result of being false on its face or physically impossible. (People v. Mayberry (1975) 15 Cal.3d 143, 150.)

In challenging the sufficiency of the evidence, appellants must set forth all the evidence that supports the judgment and explain the manner in which it is nonetheless inadequate; if not, they forfeit the claim. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290-291.) The mothers self-represented status does not relieve her from complying with this principle. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

To the extent the mother has not forfeited any claim of insufficient evidence, her assertions regarding the minors purported lack of veracity is addressed to the wrong court. Sadly, we do not find anything inherently improbable on its face or impossible about his statements to the investigators. The frequency of the criminal sexual encounters is also immaterial; even one such encounter would have been more than sufficient to sustain the jurisdictional and dispositional findings. The mothers attempt to lay the blame on Edward B. would not absolve her complicity absent sufficient evidence of duress, and in any event does not excuse her failure to report Edward B.s insistent demands to the authorities to protect the minor from sexual abuse. In short, she fails to demonstrate that the facts we have included above do not support the juvenile courts orders in this matter. We turn to her claims of a denial of due process.

It is also an appellants burden otherwise to establish any error on the record that is before us; absent evidence to the contrary, we presume the juvenile court properly performed its function and counsel properly performed her duties off-record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Evid. Code,  664; Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 272.) We do not consider undeveloped perfunctory claims or make arguments on behalf of a party. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10; Imagistics Intern., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 592, fn. 8.)

On its face, the written waiver of rights form that the mother signed fully explained the rights the mother was waiving at the jurisdictional hearing, and we can assume in the absence of affirmative evidence to the contrary that her attorney explained its significance. She does not identify any particular consequence of this waiver that prejudiced her, nor does she identify any other particular in which she did not receive any of the procedural protections accorded parents in a dependency proceeding. She does not provide any argument in support of her statements to this effect. We therefore reject the arguments that she experienced a denial of due process or a fair trial.

Disposition

The orders of the juvenile court are affirmed.

HULL, Acting P. J.

We concur:

ROBIE , J.

BUTZ , J.

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