IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
December 17, 2010
IN RE HENRY R., A PERSON COMING UNDER THE JUVENILE COURT LAW.
CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, PLAINTIFF AND RESPONDENT,
K.H., DEFENDANT AND APPELLANT.
(Contra Costa County Super. Ct. No. J09-00541)
The opinion of the court was delivered by: Bruiniers, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
K.H. (Mother) appeals from a dispositional order of the Contra Costa County juvenile court providing for the continued detention of her son, Henry R. (Minor). The focus of her arguments, however, are alleged procedural irregularities in the initial detention and jurisdictional hearings held before the Sonoma County juvenile court. After Mother's trial counsel entered a plea of no contest to one of the allegations of the juvenile dependency petition and submitted on another, that court found the Minor to be a person described in Welfare and Institutions Code section 300.*fn1 It then assumed jurisdiction over Minor and transferred the case to Contra Costa County. On appeal, Mother raises claims of inadequate notice of the jurisdictional hearing, insufficiency of the initial dependency petition, and ineffective assistance of trial counsel. We conclude that none of Mother's claims is meritorious, and we will therefore affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Both parents in this case have been convicted of having committed lewd or lascivious acts with a minor under the age of 14. (See Pen. Code, § 288, subd. (a).) Mother admitted to having sexual intercourse with a 13-year-old boy in 1993 and was convicted of the offense. Henry R., Jr. (Father) was convicted of lewd and lascivious acts with a child under 14, as well as other sexual offenses. As a result, both Mother and Father are required to register as sex offenders under Penal Code section 290, subdivision (c). Each parent knew the other was a registered sex offender.
On March 12, 2009, the Sonoma County Human Services Department (the Department) filed a juvenile dependency petition in Sonoma County Superior Court. The petition alleged Minor came within the juvenile court's jurisdiction under three separate subdivisions of section 300. It charged Father with failure to protect Minor because of Father's history of substance abuse and domestic violence. (§ 300, subd. (b).) The petition further alleged both parents were Penal Code section 290 registrants, each of whom had failed to protect Minor from the other parent. (§ 300, subd. (d).) Finally, the petition alleged Mother was incarcerated and therefore unable to care for Minor. (§ 300, subd. (g).) The Department also filed a "Prima Facie in Support of Petition(s)," a memorandum in which it described the parents' prior offenses and the reasons why Minor would be at substantial risk of harm if left in their care. The Department appended to its prima facie memorandum extensive documentation regarding the parents' criminal histories.
The juvenile court held an initial detention hearing on March 13, 2009. The court officer opened the hearing by stating "we're on this morning for detention and the Department's request for jurisdiction as a presumption appears to exist and for a transfer out to Contra Costa County where the father resides." Counsel for the Department explained she was asking the court to make jurisdictional findings on the basis of the presumption set forth in section 355.1, subdivision (d).*fn2 Mother's counsel objected, and the court announced that it would hold a contested detention hearing on March 16 and would set additional dates based on the outcome of that hearing. Counsel for both parents waived reading of the petition and further advisement of rights. Mother submitted on the issue of detention, and the court ordered Minor removed from the parents' custody.
When the contested detention hearing convened, Mother had already been transported to Contra Costa County on an outstanding warrant, and her attorney appeared on her behalf. Mother's counsel explained that her client had previously submitted on the issue of detention. Father presented evidence at the hearing in an attempt to rebut the presumption created by section 355.1, subdivision (d), but the court found there was sufficient evidence to support detention because the presumption had not been rebutted. The juvenile court therefore ordered Minor detained.
The juvenile court then asked counsel to address the issue of jurisdiction. Father pled no contest "as to the jurisdictional issue." The court asked Father whether he had any questions for the court about what a no contest plea would mean, and Father said no. When the court asked Mother's counsel for her client's position, counsel explained: "With regard to jurisdiction, your Honor, [M]other would be pleading no contest on the (d)(1) allegation as it pertains to her, submitting on the (g)(1) allegation concerning her incarceration. [¶] I did have an opportunity to speak with . . . [M]other immediately following our initial hearing on Friday. And we specifically discussed what would happen if in the interim before coming back to court today she was indeed picked up and returned to Contra Costa on that outstanding warrant. She authorized me to move ahead, and she--it is her request that the matter should the Court find jurisdiction be transferred to Contra Costa. [¶] So we did discuss all the legal issues that would result if the issue of jurisdiction was addressed today what the consequences of that would be, and she did authorize me to proceed on her behalf."
After hearing from all counsel, the juvenile court stated on the record: "The Court is going to adopt the no contest plea finding it was freely and voluntarily and intelligently made, does make the other findings consistent with the documentation and the submissions." It further noted that it believed Minor's residence to be in Contra Costa County.
The juvenile court's written findings and orders are contained in two separate documents. On a preprinted "Findings & Order" form, the court noted, "Dad pleads no contest. Mom pleads no contest re: d1 allegation, submits on g1 allegation." In the section entitled "Facts for detention," the court wrote that both Father and Mother were registered sex offenders, and each had allowed the other unsupervised contact with Minor. It also noted Father's history of substance abuse and domestic violence. It further found that "county of residence is Contra Costa County." In an attachment to this form, the juvenile court adopted the findings and orders attached to the social worker's report.
In a document entitled "Findings and Orders Attachment," the court found notice had been given as required by law, and it sustained the allegations of the petition. The court found Minor came within section 300, subdivisions (d) and (g). It further found the presumption of section 355.1 had not been rebutted and concluded Minor came within section 300, subdivision (d) because Mother and Father had previously been convicted of sexual abuse as defined in Penal Code section 11165.1 and both parents were registered sex offenders pursuant to Penal Code section 290. It also reiterated its finding that the Minor's county of residence was Contra Costa, and it ordered the case transferred to the Contra Costa County juvenile court for further proceedings. The court did not make the other findings required by California Rules of Court, rule 5.682(f).*fn3
The transfer order was filed in Contra Costa County on April 7, 2009, and a transfer in hearing took place on April 20. The court continued the disposition hearing a number of times before setting it for late September 2009.
Mother filed a trial brief and demurrer to the petition on September 14, 2009. The demurrer was only to the sexual abuse allegations in counts (d)(1) and (d)(2) of the petition, and it did not address the other counts. Mother claimed the Department had failed to plead facts sufficient to show that Minor was at any current risk of harm as a result of his parents' history of sexual abuse of minors. Mother contended the juvenile court was required to dismiss counts (d)(1) and (d)(2) because the petition failed to describe how her past criminal conviction put Minor at a substantial risk of harm. She requested that Minor be released to her, that she be granted sole legal and physical custody, and "that the dependency be vacated and dismissed."*fn4 The Contra Costa County juvenile court overruled the demurrer on September 29, 2009.
The juvenile court held a contested dispositional hearing on October 30, 2009. Mother was in custody on an immigration hold but appeared in person. Mother's counsel requested that Minor be released to her, but the court agreed with the Contra Costa County Children and Family Services Bureau (the Bureau) that Minor could not be returned to Mother until her immigration hold was resolved. In its written order, it found Minor continued to be a child described in section 300, subdivisions (b), (d), and (g).
Mother now appeals from the dispositional order.
Mother makes three arguments in her appeal. She first claims the juvenile court erred by making jurisdictional findings at the conclusion of the detention hearing and by failing to provide her with proper notice of the jurisdictional hearing. She next argues the petition's sexual abuse allegation should have been stricken as facially insufficient. Finally, she contends the attorney representing her at the March 16, 2009 hearing provided ineffective assistance of counsel by entering a no contest plea to the sexual abuse allegation. As we find none of these arguments persuasive, we will affirm.
A. Any Deficiency in the Notice of the Jurisdictional Hearing Was Harmless.
Mother first claims she was denied due process because the juvenile court failed to notify her on March 13 that it would make jurisdictional findings at the March 16, 2009 hearing. She contends that hearing was intended to address only the issue of detention. Mother therefore asserts that we must reverse the dispositional order and remand the matter "to the Sonoma County Juvenile Court for the jurisdictional hearing that was never held." We disagree.
First, Mother's argument is factually flawed. The record does not support her claim that she received no notice of the jurisdictional hearing. At the beginning of the March 13, 2009 hearing, at which Mother was present with counsel, the court officer announced that one of the issues at the hearing would be the Department's request for jurisdiction. Counsel for the Department explained she was asking the court to make jurisdictional findings on the basis of the section 355.1 presumption. She conceded the procedure was unusual, but noted that both parents were registered sex offenders. When the court reconvened on March 16, Mother's counsel told the court she had already discussed with Mother all the legal consequences of the court's possible jurisdictional finding, and she informed the court that Mother had authorized her to proceed. This clearly indicates Mother's counsel was at least aware of the possibility that the juvenile court might proceed to make jurisdictional findings at the March 16 hearing. Thus, this is not a case in which Mother received no notice at all. (Cf. In re Wilford J. (2005) 131 Cal.App.4th 742, 750-751 [unrepresented father who was absent from detention hearing and pretrial resolution conference received no notice of nature of jurisdictional hearing].)
Second, even if one accepts that the juvenile court failed to provide Mother with the type of notice required by statute (§ 291), we may not reverse the juvenile court's judgment unless Mother can demonstrate she was prejudiced by the claimed error. As the California Supreme Court has explained, "[i]f the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required." (In re James F. (2008) 42 Cal.4th 901, 918.) An error in providing notice of a jurisdictional hearing does not automatically compel reversal. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912.) Instead, in such cases the question is whether the error is harmless beyond a reasonable doubt. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)
Here, Mother cannot show that the outcome of the proceeding would have been different absent the claimed error in notice.*fn5 (In re Daniel S., supra, 115 Cal.App.4th at p. 914 [error in notice harmless where result of jurisdictional and dispositional hearing "would have been the same regardless of whether proper notice was given . . ."]; see In re Marcos G. (2010) 182 Cal.App.4th 369, 391.) First, a child may be brought within the jurisdiction of the juvenile court based on the acts or omissions of either or both parents. (See In re John S. (2001) 88 Cal.App.4th 1140, 1143.) Since jurisdiction is over the child, not the parents, the juvenile court's finding that the allegations against Father were true satisfied the jurisdictional basis for the petition. (Ibid.; see § 300 ["[a]ny child who comes within any of the following descriptions is within the jurisdiction of the juvenile court . . . ," italics added]; § 302, subd. (a) [juvenile court may assume jurisdiction over child regardless of whether child is in custody of both parents or only one parent at time of events giving rise to petition].) Father has not appealed the jurisdictional findings, and Mother does not argue that the counts against Father were improperly sustained. It therefore appears that the ultimate result of the jurisdictional hearing would have been the same even absent the claimed defect in notice.
In addition, since the inception of these proceedings, Mother has been incarcerated and unable to care for Minor. She therefore cannot contest the correctness of the juvenile court's finding under section 300, subdivision (g) that she "has been incarcerated . . . and cannot arrange for the care of the child." Mother asserts in her brief that if the juvenile court had not "summarily" taken jurisdiction, she "might have been out of custody by the time of the jurisdiction hearing, which would have obviated the only other allegation against her." (Italics added.) This argument essentially asks us to evaluate prejudice through " 'a speculative inquiry into what might have occurred in an alternate universe.' [Citation.]" (In re James F., supra, 42 Cal.4th at p. 915.) In this universe, however, Mother was and is in custody on an immigration hold. A flawless notice of the jurisdictional hearing would not have altered this fact. Consequently, the record does not "show facts that would have caused the trial court to not adjudicate [Minor] a dependent child and take custody from Father and Mother if [Mother] had received required notices" of the jurisdictional hearing. (In re Marcos G., supra, 182 Cal.App.4th at p. 391.)
In light of these facts, we conclude that any error in notice to Mother was harmless beyond a reasonable doubt. (In re J.H., supra, 158 Cal.App.4th at p. 185.)
B. The Juvenile Court's Failure to Obtain an Explicit Waiver of Rights Was Harmless.
For similar reasons, we also reject Mother's argument that reversal is required because the juvenile court failed to comply with the requirements of California Rules of Court, rules 5.674(a) and 5.682. Responding to the Bureau's argument that the juvenile court may make jurisdictional findings at the initial hearing based on a parent's plea of no contest,*fn6 Mother contends the juvenile court erred by not obtaining an explicit waiver of the jurisdictional hearing and by failing to read the petition and advise Mother of her rights. (See Cal. Rules of Court, rule 5.682(a), (b).) Although we agree the juvenile court erred, we again conclude the error was harmless beyond a reasonable doubt.
Mother appeared with her counsel at the March 13, 2009 hearing, and the juvenile court asked counsel whether she was "in a position to waive reading of the petition and further advisement of rights." Mother's attorney responded by saying, "So waived." At the March 16, 2009 hearing, Mother was represented by counsel, who pled no contest to the (d)(1) and (g)(1) allegations against her. Mother's counsel represented that she had discussed with her client all of the possible consequences of her plea. The juvenile court did not specifically advise Mother of her rights to (1) a hearing on the issues raised by the petition, (2) assertion of the privilege against self-incrimination, (3) confrontation and cross-examination of all witnesses, (4) court process to compel attendance of witnesses on her behalf, and (5) return of her child within two working days if the juvenile court found he did not come within the jurisdiction of the court under section 300. (Cal. Rules of Court, rule 5.682(b)(1)-(5).)
Our opinion in In re Monique T. (1992) 2 Cal.App.4th 1372 demonstrates the juvenile court's error was harmless and compels the result we reach here. In In re Monique T., the juvenile court held a detention hearing at which the mother, through her counsel, waived the reading of the petition, advice of rights, and explanation of the proceedings. (Id. at p. 1375.) Later in the same hearing, mother's counsel submitted the matter for a jurisdictional determination based on the petition and the detention memorandum. (Ibid.) The juvenile court did not advise the mother of the rights she would be giving up upon submission. (Ibid.) On appeal, we concluded that the language of former California Rules of Court, rule 1449 (the predecessor to California Rules of Court, rule 5.682) was mandatory, and thus "[t]he advisement of rights and a personal waiver is required, even though mother agreed to submit the matter at the detention hearing." (In re Monique T., at p. 1377.) We therefore held it was error for the juvenile court to accept a waiver of these rights based only on counsel's representations. (Ibid.)
Nevertheless, we concluded the juvenile court's mistake was subject to harmless error analysis and found it harmless beyond a reasonable doubt. (In re Monique T., supra, 2 Cal.App.4th at pp. 1377-1378.) Our reasoning in that case is equally applicable here: "[M]other was represented, at all stages of the proceeding, by an attorney, who explained her rights to her and who indicated that she desired to waive them. She does not deny this, nor does she claim she was under any kind of pressure to waive her rights. Moreover, the evidence of . . . [M]other's inability to care for the child is uncontradicted and . . . [M]other does not indicate that she could have offered different or more favorable evidence or witnesses." (Id. at p. 1378.)
The same is true here. Mother was represented at all stages of the proceeding, and her counsel indicated she had explained to Mother the legal consequences of her plea of no contest. Mother does not contend that she was pressured to waive her rights. She does not claim either that she was not a Penal Code section 290 registrant or that she was able to care for Minor during the course of the dependency proceedings. Nor does she identify any more favorable evidence or witnesses she would have offered had she proceeded to a contested jurisdictional hearing. In other words, she does not challenge the substance of the petition's allegations against her. As a consequence, any error in failing to advise Mother of her rights was harmless beyond a reasonable doubt. (In re Monique T., supra, 2 Cal.App.4th at pp. 1377-1379.)
C. Mother's Plea of No Contest Bars any Challenge to the Sufficiency of the Petition.
Mother argues that the sexual abuse allegation in the petition should have been stricken as facially insufficient. She appears to contend that the allegation was defective because it failed to cite any evidence that either of Minor's parents had sexually violated him. We conclude that Mother's actions in the juvenile court have deprived her of this argument.
Mother chose to plead no contest to the sexual abuse allegation as it pertained to her. Such a plea "admits all matters essential to the court's jurisdiction over the minor." (In re Troy Z. (1992) 3 Cal.4th 1170, 1181.) Mother has therefore waived any right to challenge the applicability of section 300, subdivision (d) to her conduct. (See ibid.) "Any objection to the sufficiency of the petition will be deemed waived if the parent admits the allegations, 'pleads no contest,' or submits the case on the recommendations in the social study." (Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2010) § 11.53, p. 983, italics added.)
Furthermore, if Mother believed the petition did not adequately communicate the allegations against her, the onus was on her "to challenge the petition at the pleading stage." (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1038, fn. 8, italics added.) Thus, if Mother wished to challenge the sufficiency of the petition, she could have filed a motion "akin to a demurrer." (In re Fred J. (1979) 89 Cal.App.3d 168, 176.) But if such a motion "is to be filed it should be done at the detention hearing prior to entering a plea since the general rule is that once a plea is entered a demurrer for vagueness or lack of notice will no longer lie unless the court allows the previously entered plea to be withdrawn." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2010) § 2.42, p. 2-75 (Seiser & Kumli).) While Mother did file a demurrer in this case, she did not do so until after her no contest plea and after the juvenile court had found jurisdiction and transferred the case to Contra Costa County.*fn7 Moreover, at no time did Mother seek to have her no contest plea set aside, and her failure to do so bars her from contesting the sufficiency of the petition at this late date. (See In re Andrew A. (2010) 183 Cal.App.4th 1518, 1526-1527 [no contest plea barred mother from bringing motion for reconsideration of juvenile court's jurisdictional finding].)
Finally, even if Mother had properly preserved this issue for appeal, her arguments would be unavailing. The petition alleged that both Mother and Father are registered sex offenders, an allegation Mother has never contested. The materials attached in support of the Department's prima facie case contained records showing Mother had been convicted for an offense constituting sexual abuse. The petition was sufficient to put Mother on notice of the specific factual allegations against her. (In re Jessica C., supra, 93 Cal.App.4th at pp. 1036-1037.) This is particularly true when those allegations are read together with the evidence attached to the Department's prima facie memorandum. (See Seiser & Kumli, supra, § 2.42, p. 2-76 ["[t]he better practice is to read the petition together with the reports filed with it at the initial hearing in a form of notice pleading . . ."].)
Mother also fails to specify precisely how she was prejudiced by the claimed insufficiency in the petition. (See In re Athena P. (2002) 103 Cal.App.4th 617, 627-628 [mother did not claim petition "gave her prejudicially inadequate notice of the factual allegations against her"].) And since Mother does not claim the evidence before the juvenile court was insufficient to support its finding that the presumption established by section 355.1, subdivision (d) applied to Mother's case, any failure of the petition to state a cause of action would be harmless error in any event. (See In re Athena P., at p. 628; cf. In re Monique T., supra, 2 Cal.App.4th at pp. 1378-1379 [holding evidence sufficient to support presumption under § 355.1, subd. (a) that minor was injured by mother's prenatal drug use, which was probative of future neglect].)
D. Mother's Claim of Ineffective Assistance of Counsel Fails Because Mother Cannot Show Prejudice.
Mother's final contention in her appeal is that the attorney who represented her in Sonoma County juvenile court provided ineffective assistance of counsel by entering the no contest plea to the sexual abuse allegation. Mother contends there simply can be no satisfactory explanation for her attorney's conduct, and we may therefore review her claim of ineffective assistance of counsel on direct appeal. According to Mother, a reasonably competent attorney would have demanded the juvenile court follow the statutory scheme, rather than permitting the court "summarily" to assume jurisdiction. She asserts that her attorney's claimed error plainly resulted in prejudice to her. We disagree.
A claim of ineffective assistance of counsel may be reviewed on direct appeal when there is no satisfactory explanation for trial counsel's act or failure to act. (In re N.M. (2008) 161 Cal.App.4th 253, 270.) Mother claims that is the case here. To prevail on such a claim, Mother must demonstrate "(1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice. [Citations.]" (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540.) We must affirm the judgment unless the record "affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission . . . ." (Id. at p. 1541.) This means that Mother "must also show that counsel's omissions were not the result of a reasonable tactical decision." (In re Merrick V. (2004) 122 Cal.App.4th 235, 255.) In addition, we may reject Mother's claim if she cannot show it is reasonably probable the result would have been more favorable to her but for trial counsel's alleged failings. (In re N.M., at p. 270.) Thus, if Mother fails to demonstrate prejudice, we need not examine whether her counsel's performance was deficient. (See ibid.)
Mother contends that if her attorney had not entered a plea of no contest, Mother "would have been able to contest the allegation that she endangered [Minor] by allowing him to reside with his father. She might also have been out of custody by the time of the jurisdiction hearing, which would have obviated the only other allegation against her. Her attorney's failure to insist on holding the statutorily-required jurisdictional hearing thus plainly resulted in prejudice to [Mother]." We disagree with Mother, because the record does not demonstrate she was prejudiced by her trial attorney's alleged error.
As we have explained above, even if Mother had contested the sexual abuse allegation against her, the ultimate result of the jurisdictional hearing would have been the same--the court would have found Minor a dependent. Father contested the allegations against him at the March 16, 2009 hearing, but after hearing testimony from witnesses, the juvenile court sustained the jurisdictional allegations against him, and this finding alone was sufficient to make Minor a child described in section 300. (See In re John S., supra, 88 Cal.App.4th at p. 1143 [allegations against only one parent satisfy jurisdictional basis for petition].) Father has not appealed the juvenile court's jurisdictional findings that relate to him, and Mother does not contend they should be reversed.
In addition, in examining the question of prejudice, we will not indulge in speculation about what might have happened to Mother's custodial status. (See In re James F., supra, 42 Cal.4th at p. 915.) In fact, it appears undisputed that Mother has been in custody since the time of the initial detention hearing.*fn8 Her continued incarceration plainly supports the juvenile court's jurisdictional finding, because it rendered her unable to care for Minor. (See In re Marcos G., supra, 182 Cal.App.4th at p. 391 [jurisdictional finding supported by fact that one parent was incarcerated and other unable to care for minor because of substance abuse].)
Beyond the ultimate result of the jurisdictional hearing, Mother also makes no showing that she would have been able to contest the sexual abuse allegation itself. She does not explain how she would have rebutted the presumption that her status as a Penal Code section 290 registrant placed Minor "at substantial risk of abuse or neglect." (§ 355.1, subd. (d).) Her brief does not tell us what evidence she might have presented to demonstrate that her status as a registered sex offender did not put Minor at risk. In other words, Mother "does not alert us to any new evidence which she wanted to, but could not, introduce." (In re Monique T., supra, 2 Cal.App.4th at p. 1379.) In these circumstances, even if we were to assume Mother's trial counsel's performance fell below an objective standard of reasonableness, her claim of ineffective assistance fails because there has been no demonstrable prejudice.*fn9 (See In re Kristen B., supra, 163 Cal.App.4th at p. 1540.)
The judgment is affirmed.*fn10
Jones, P. J.