IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 19, 2011
IN RE T.B., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
S.B. ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. JD230014)
The opinion of the court was delivered by: Butz , J.
In re T.B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
S.B., mother, and D.D., father, of the infant minor T.B., appeal from the judgment of disposition. (Welf. & Inst. Code, §§ 360, 395.)*fn1 Appellants contend there is insufficient evidence to support jurisdiction because the finding was based solely on hearsay. D.D. raises several other arguments relating to appointment of counsel, evidentiary matters and procedural problems. S.B. argues the case plan was unreasonable as to her and joins D.D.'s various arguments. We shall affirm.
The Sacramento County Department of Health and Human Services (the Department) secured a warrant in July 2009 to detain the minor based upon a request from a social worker in Washington who was assigned to the half siblings' case in that state. The half siblings were detained from S.B. due to neglect and physical abuse by both S.B. and D.D. as alleged in petitions filed in Washington in April 2009.
Both appellants appeared at the initial hearing on August 5, 2009, and counsel was appointed. D.D. brought a Marsden motion,*fn2 which was resolved by a recess to permit further discussion between D.D. and his counsel. The initial hearing resumed the next day and again both appellants were present in court. The court ordered the minor detained and further ordered the Department to offer services to S.B. and D.D. D.D.'s request to be allowed to bring his service dog into court was denied pending documentation.
The jurisdiction/disposition report filed August 26, 2009, stated neither S.B. nor D.D., although given the necessary contact information, had actually contacted the social worker to provide background information or to respond to the allegations of the petition. The social worker made repeated attempts to contact both S.B. and D.D. Prior to removal of the minor, the Department offered services to appellants but they refused them.
The report stated the half siblings remained in foster care in Washington state pending trial on jurisdiction. The California social worker interviewed the Washington social worker who recounted interviews with the half siblings who reported physical abuse by D.D. and their expressed belief that D.D. was trying to kill them. The Washington social worker described the contents of the Washington petition, which included allegations that D.D. went to the half siblings' school yelling and intimidating staff, and that the half siblings reported domestic violence between D.D. and S.B. The Washington social workers also stated that there were multiple referrals for physical abuse and neglect of the half siblings, that S.B. and D.D. were referred to voluntary services and S.B. agreed to services but left the area and ultimately left the state with D.D.
The emergency response social worker contacted the hospital (UC Davis Medical Center) where S.B. went into labor. The staff reported D.D. was controlling and would not allow S.B. to speak for herself or without him present and was suspected to be mentally ill. The parents left the hospital against medical advice.
The report recommended services be offered to S.B. and D.D. The services recommended for the case plan, as summarized in the report, included parenting classes, mental health counseling, anger management and domestic violence counseling, and a medication evaluation for D.D. who previously was diagnosed with bipolar disorder. An addendum, filed August 28, 2009, provided the court with proposed findings and orders and uncertified copies of the petitions and the detention order for the half siblings filed in the Washington case.
At the next hearing, in September 2009, S.B. was present but D.D. began a pattern, which would characterize the ongoing proceedings, of appearing at the courthouse but refusing to enter the courtroom without his dog, insisting on accommodation under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.; see Cal. Rules of Court, rule 1.100)*fn3 while declining to properly complete the necessary paperwork. At this hearing, D.D. requested another Marsden hearing but refused to enter the courtroom without his dog and the court declined to relieve counsel in his absence.
Counsel for D.D. filed a motion to be relieved as counsel, citing a breakdown in communication with his client. Counsel provided a detailed account of the contact he had with D.D. to demonstrate the breakdown.
D.D. filed a response to his counsel's motion to be relieved as well as a document entitled "Letter and Motion [re] Inadequate Counsel." In a supporting declaration, D.D. expressed a desire to be represented by counsel.
The contested jurisdictional hearing and counsel's motion to be relieved were continued. The Department had not yet interviewed S.B. or D.D. because they insisted on recording any interview, which was against Department policy.
Counsel for D.D. filed a pretrial statement that challenged the sufficiency of the evidence to support jurisdiction. The pretrial statement also contained specific objections to the hearsay statements in the social worker's report by the Washington social workers and the Department's investigating social worker insofar as their statements related to evidence of physical abuse or violent behavior on the part of D.D. Counsel for S.B. also filed a pretrial statement but did not make any specific hearsay objections.
The Department filed a second addendum in November 2009 stating that S.B. and D.D. had not yet given the Department interviews and had not visited the minor. The addendum reported that the Washington petitions for the half siblings were sustained on the grounds of physical abuse and neglect and services were ordered for both parents. Uncertified copies of the jurisdictional findings and orders and the judgment of disposition from Washington were attached to the addendum.
At the hearing on counsel's motion to be relieved, D.D. again refused to enter the courtroom without his dog. The court explored the facts of counsel's interaction with D.D. and granted the motion to be relieved. The court did not appoint new counsel but ordered that D.D. would proceed in propria persona. In January 2010, prior to the continued contested jurisdictional hearing, D.D. filed a request for counsel.
On February 18, 2010, the date of the contested jurisdictional hearing, neither parent was present.*fn4 The court denied a further continuance. Counsel for S.B. objected to portions of the allegations of the petition as unsupported by evidence but did not raise hearsay objections. The court sustained the petition as modified, dismissing the allegations of neglect but retaining the allegations of risk of physical abuse. At the end of the hearing, the court reappointed counsel for D.D.
A third addendum was filed, but not considered, at the February 18 jurisdictional hearing. It stated that D.D. was recently arrested for an act of domestic violence perpetrated on S.B. and that there were reports D.D. was threatening staff at visits. A fourth addendum in March 2010 provided details of a recent visit in which D.D. became upset because his dog was excluded from the visit and the dog reacted to D.D.'s emotional state by growling. There was also information from the Washington social worker that D.D. is excluded from visits in Washington due to his past behavior in visits and that the half siblings fear him. The addendum recommended adding a psychological evaluation to D.D.'s case plan.
The contested dispositional hearing commenced in late March 2010. S.B. was present; D.D. was at the courthouse but refused to enter the courtroom without his dog. The Department did not provide a formal case plan prior to the hearing. Counsel for the Department reviewed the elements as described in the first report, which were to be included in the plan for both S.B. and D.D., and stated that S.B. would be in compliance with the California case plan requirements if she completed services in Washington for their equivalent case plan requirements; thus, she would not have to do any program twice. S.B. and D.D. objected to the proposed findings and orders. As to S.B., the court clarified that its intent was to rule on disposition and set a further hearing to specify the parameters of S.B.'s case plan. The court found a substantial danger to the minor if returned to appellants' custody based on evidence of abuse of the half siblings, D.D.'s behavior when interacting with service providers and recent information on domestic violence. The court found reasonable efforts were made to prevent removal and adopted the recommended findings and orders as modified.
Additional facts appear where necessary in the following discussion.
Appellants contend there is insufficient evidence to support the jurisdictional findings because mere hearsay is insufficient to sustain the petition.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
"A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d)." (§ 355, subd. (b).)
The jurisdiction/disposition report contained evidence that both S.B. and D.D. had recently inflicted physical abuse on the minor's half siblings and that the half siblings were placed in protective custody in Washington. Both D.D. and S.B. had previously avoided voluntary services designed to address issues of neglect and abuse. The half siblings reported being subjected to physical abuse by both S.B and D.D. and that they feared D.D. Appellants' ongoing propensity for violence against the half siblings and their avoidance of attempts to modify their behavior placed the minor at risk of physical abuse by both D.D. and S.B. Substantial evidence supported the court's finding that the minor came within the provisions of section 300, subdivisions (a), (b) and (j).
D.D. argues that the report contained hearsay and could not support the court's findings. However, absent a timely objection, the hearsay in the report was admissible. (§ 355, subds. (b), (c)(1).) D.D. was not present and thus made no objections to the evidence. S.B. did not raise any hearsay objections to the report and has forfeited the issue. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
It is true that "[o]bjections that could have been made to evidence introduced shall be deemed to have been made by any parent . . . who is present at the hearing and unrepresented by counsel . . . ." (§ 355, subd. (a).) D.D. was not represented by counsel and, had he been present, the court could have deemed the hearsay objections to have been made to portions of the social worker's reports and the uncertified copies of the petitions and orders from Washington to the extent that such objections were proper. However, D.D. was not present. The court was not required to consider any objections on his behalf.
D.D. contends the juvenile court erred in failing to address his objections to certain hearsay contained in the social worker's report as specified in the pretrial statement filed by his former counsel, thereby denying him due process. D.D. asserts that the court should have considered the objections although he was absent and no longer represented by counsel at the jurisdictional hearing.
"If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding . . . ." (§ 355, subd. (c)(1).) "[A]n objection is timely if it identifies with reasonable specificity the disputed hearsay evidence and it gives the petitioner a reasonable period of time to meet the objection prior to a contested hearing." (§ 355, subd. (c)(2).)
The pretrial statement filed by D.D.'s former counsel in November 2009, did, as required by section 355, specify certain portions of the original social worker's jurisdiction report as objectionable hearsay. However, the issues identified in a trial brief are subject to being abandoned if not pursued by the litigant. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 249, 283-286.) D.D. chose not to be present at the contested hearing in February 2010 and evidently did not contact the court or anyone connected with the hearing to indicate that he continued to rely on the issues identified in a pretrial brief filed several months before the hearing. We conclude D.D. abandoned the hearsay objections.
The juvenile court was not required, sua sponte, to sift through the brief in D.D.'s absence and determine what, if any, issues remained from the pretrial brief, particularly in light of the additional evidence before the court from the second addendum. The court did not err in failing to address D.D.'s abandoned hearsay objections.
D.D. contends the juvenile court erred in failing to appoint counsel for him prior to the jurisdictional hearing.
"When it appears to the court that a parent . . . of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, . . . the court shall appoint counsel for the parent . . . unless the court finds that the parent . . . has made a knowing and intelligent waiver of counsel . . . ." (§ 317, subd. (b), italics added.) "Counsel shall continue to represent the parent . . . unless relieved by the court upon the substitution of other counsel or for cause." (§ 317, subd. (d).)
Prior to the jurisdictional hearing, D.D.'s counsel filed a motion to be relieved. Counsel cited a breakdown in communication based on D.D.'s actions and demands, which made it impossible to represent him, and asked the court to permit D.D. to proceed in propria persona or appoint new counsel for him. D.D. responded to the motion and requested counsel be appointed.
The juvenile court granted counsel's motion to be relieved. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 914.) The court also ordered D.D. to proceed in propria persona. However, D.D. had expressly requested counsel and, pursuant to section 317, subdivision (b), the court was required to appoint new counsel for him. (Cf. Janet O. v. Superior Court (1996) 42 Cal.App.4th 1058, 1064-1066 [parents' failure to maintain contact with counsel for over a year and failure to attend court proceedings for more than three years strongly suggested the parents had lost interest in the proceedings and the court could conclude they no longer desired representation].)
The jurisdictional hearing was continued and D.D. again requested appointment of counsel. At the contested jurisdictional hearing, D.D. was without counsel but did not appear. The court proceeded with the jurisdictional hearing when D.D. was absent and unrepresented. Doing so in the face of D.D.'s express wishes to have counsel violated D.D.'s statutory right to counsel.
Violation of a statutory right to counsel is reviewed under the Watson standard.*fn5 (In re Ronald R. (1995) 37 Cal.App.4th 1186, 1195.) That is, whether it is reasonably probable a result more favorable to D.D. would have been reached in the absence of the court's error. (Ibid.) D.D. asserts a different result was probable because counsel would have advocated the hearsay objections raised in former counsel's pretrial brief and additional objections that arose from the attachments to the addendum reports.
Section 355 provides, in pertinent part:
"(a) At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300. Any legally admissible evidence that is relevant . . . may be received in evidence. . . .
"(b) A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d). [¶] . . . [¶]
"(c)(1) If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions:
"(A) The hearsay evidence would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay. [¶] . . . [¶]
"(D) The hearsay declarant is available for cross-examination. . . ." (§ 355, subds. (a), (b) & (c)(1)(A) & (D).)
The objection must identify "with reasonable specificity the disputed hearsay evidence . . . ." (§ 355, subd. (c)(2).)
Thus, under Welfare and Institutions Code section 355, a successful hearsay objection does not operate to exclude the report, but only activates a corroboration requirement. Assuming counsel was present on D.D.'s behalf and had relied on the timely objections to the statements of the Washington social workers and the emergency response social worker--as well as making timely objections of authentication and hearsay to the court records attached to the second and third addendum reports--all the critical evidence of D.D.'s physical assaults on the half siblings, his volatile nature, and S.B.'s failure to protect the half siblings would be under scrutiny. There is essentially no corroborating evidence from the California investigation since the jurisdictional facts all arise from the Washington case. However, we cannot assume that, had the objections in the pretrial brief not been abandoned and had timely objections been made to the admission of copies of the Washington court's orders, the Department would have failed to either procure certified copies of the orders--which orders would have then been admissible as an exception to the hearsay rule and also provide corroboration of the Washington social workers' statements (Evid. Code, §§ 1280, 1401)--or arrange for testimony from the Washington social workers and the emergency response social worker to eliminate the hearsay problem.
While we cannot condone requiring a parent, who is entitled to, and desires, counsel, to proceed without representation, under the circumstances of this case, it is not reasonably probable the presence of counsel would have produced a more favorable result. Even if the juvenile court's error is viewed as a denial of due process, the presence or absence of counsel would not have made a determinative difference on the outcome of the question of substantial evidence to sustain the petition. (In re Ronald R., supra, 37 Cal.App.4th at p. 1196.) The error in failing to appoint counsel prior to proceeding with the jurisdictional hearing was harmless under either standard.
D.D. asserts the juvenile court failed to order reasonable services, citing the lack of a formal case plan. S.B. argues the dispositional order was unreasonable as to her because she would be required to comply with case plans in two states.
The Department asserts the issue is not ripe. As to D.D., this assertion is incorrect. A challenge to the service plan must be raised on appeal from the judgment of disposition. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) However, as to S.B., the Department is correct. The court made various findings and orders declaring the minor a dependent child but specifically reserved the question of S.B.'s service plan to a later hearing so that overlap between the Washington plan and the proposed plan in this case could be harmonized to prevent S.B. from having to complete dual services and so that the requirements of the plan would be clear to her. Accordingly, we address only D.D.'s claim of error.
Prior to disposition, the social worker must prepare a social study, which includes a plan for reunification of the family. (§§ 358, subd. (b); 16501, subd. (a).) The requirements for a specific written plan are set forth in section 16501.1, subdivision (f). The purpose of the portion of the written case plan that deals with reunification services is to put the family on notice of what must be accomplished to reunify the family. (In re John B. (1984) 159 Cal.App.3d 268, 274.) A case plan that complied with section 16501.1, subdivision (f) was not attached to the social worker's report or filed with the court. This was a violation of the statutory requirements for a case plan. To prevail, D.D. must show prejudice from the statutory violation. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419 [parent must show prejudice from failure to comply with notice requirements of § 366.21]; Cal. Const., art. VI, § 13.)
D.D. argues he was prejudiced by the Department's failure to comply with the statutory requirements for a written plan because he could not tell what he had to do to reunify with the minor.
Based on the information that was available to her, as limited by D.D.'s refusal to be interviewed, the social worker developed the elements of a reunification plan which addressed the issues that led to the removal of the minor. The elements of the reunification plan included participation in general counseling, an anger management program, a domestic violence program, a parenting education program, evaluation for psychotropic medication and visitation. The report gave D.D. notice of the elements of the proposed reunification plan. While the Department would be well advised to provide a complete plan as required by statute, in this case, adequate information of the requirements for D.D. to reunify with the minor was set forth in the jurisdiction report and no prejudice to D.D. appears.
D.D. contends there was insufficient evidence to support removal of the minor because there was no clear and convincing evidence of substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or of reasonable efforts to prevent removal. We disagree.
A child may not be removed from parental custody unless the juvenile court finds clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor . . . ." (§ 361, subd. (c)(1).) In determining whether a current danger exists, the court may consider a parent's past actions. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)
"In juvenile dependency cases it is settled that hearsay evidence, which would be inadmissible at a jurisdiction hearing, may nevertheless be considered at a dispositional hearing." (In re Vincent G. (2008) 162 Cal.App.4th 238, 243.) Any relevant evidence may be admitted at the disposition stage so that the court may determine the minor's best interests. (Ibid.; § 358.)
Here, the court had not only the information from the half siblings' case in Washington of D.D.'s violence and physical abuse, but reports filed after the jurisdictional hearing stated he was arrested for serious domestic violence against S.B. and was threatening the visit supervisor. Additionally, further information from the Washington social worker stated D.D. was excluded from visits due to his behavior and the half siblings continued to fear him. The evidence clearly showed D.D. had engaged in impulsive and violent behavior toward others in the past and continued to demonstrate the same behavioral pattern within the weeks prior to the dispositional hearing. S.B. had not protected the half siblings from D.D. in the past, was herself a victim of his violence, and continued to remain in a relationship with him. Ample evidence supports the juvenile court's order at disposition removing the minor from parental custody.
B. Reasonable Efforts
D.D. contends the evidence did not show the Department made reasonable efforts to prevent the need for removal.
At the outset, based on the information from the Washington case, removal was necessary due to the serious risk of physical harm to the newborn as set forth in the protective custody warrant declaration. (§ 340.) The Department had already offered services but the offer was refused. Thereafter, at the detention hearing, the court ordered the Department to offer services to D.D. and S.B. However, appellants did not contact the social worker, although the social worker made multiple efforts to reach them, and referrals could not be made. Several months after the detention hearing, appellants still had not completed interviews with the social worker and had not even visited the minor. The Department was prepared to make efforts to prevent removal, however, appellants declined to interact with the Department. The evidence supports a finding of reasonable efforts to the extent possible under the circumstances.
D.D. argues he was not given any advisement at the dispositional hearing of the consequences of failing to reunify with the minor as required by rule 5.695(i)(2) (formerly subd. (g)(2)).
Rule 5.695(i)(2) states, in relevant part: "If a child is removed from the physical custody of the parent or guardian under either section 361 or 361.5, the court must: [¶] . . . [¶] (2) Notify the parents that their parental rights may be terminated if custody is not returned within 6 or 12 months of the specific date the child is determined to have entered foster care, whichever time limit is applicable." Because the minor was under three years of age at the time he was removed, the parents were entitled to six months of services from the date of the dispositional hearing. (§ 361.5, subd. (a)(1)(B).)
D.D. declined to enter the courtroom at the dispositional hearing and was not present when the court advised S.B. that failure to participate in services over the next six months could result in a permanent plan of adoption. However, the minute order for the dispositional hearing stated: "The parents are advised that if the child cannot be returned to a parent's care and custody within the next six months, a proceeding to select a permanent plan, which may include terminating parental rights pursuant to [section] 366.26 WIC, may be initiated." The order was served on D.D.
Contrary to D.D.'s contention that the order did not clearly explain the conditions under which parental rights could be terminated, the minute order contained language almost identical to the rule of court and was adequate to advise D.D. of the consequences of failing to regain custody of the minor within six months. The advisement was sufficient.
D.D. contends reversal is required for failure to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) 25 U.S.C. § 1901 et seq. We disagree.
At the outset of the case, D.D. completed the "Parental Notification of Indian Status" form. On the form, D.D. checked the box next to the statement, "I may have Indian ancestry." No further information, such as identification of any tribe or of any family member who either was associated with a tribe or had further information on the family's Indian status, appears on the form.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) These interests are protected by providing notice of pending proceedings that could affect the status of the Indian children with respect to the tribe. Notice to the Indian tribe is triggered if the court "knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.2; rule 5.481(b).)
Nothing in the vague response by D.D., which consisted solely of checking a box on a form with no further information, would give the juvenile court reason to know an Indian child was involved in the dependency case. There is nothing in the bare statement on the printed form to lead anyone to have reason to know D.D. has Indian ancestry and no suggestion there is any tribal affiliation or family tradition of such affiliation. D.D.'s belief that he may have Indian ancestry is too speculative to require notice. (In re J.D. (2010) 189 Cal.App.4th 118, 124-125.) In the absence of information that would have given the juvenile court reason to know an Indian child was involved, there was no requirement that notice of the proceedings be sent to any entity.
The orders of the juvenile court are affirmed.
We concur: BLEASE , Acting P. J. DUARTE ,J.