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In Re Henry R., A Person Coming Under the Juvenile Court v. K.H

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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