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In Re M.C., A Person Coming Under the Juvenile Court Law. v. Felicia C. et al


September 29, 2011


(San Francisco City & County Super. Ct. No. JD10-3007) Superior Court of San Francisco City and County, No. JD10-3007, Donna J. Hitchens, Patrick J. Mahoney, Ellen L. Chaitin, Judges, and Catherine A.S. Lyons, Commissioner.

The opinion of the court was delivered by: Bruiniers, J.


When he was 16 years old, M.C. ran away from his home in Guatemala where he lived with his mother, Felicia C. (mother), and his father, Juan E. (father). He came to San Francisco, where he was found begging for money on the street and was referred to a homeless shelter. The San Francisco Human Services Agency (Agency) investigated allegations of abuse and neglect to determine if M.C. was a dependent child, within the meaning of Welfare and Institutions Code section 300,*fn2 and declined to file a dependency petition. Legal Services for Children (LSC), serving as counsel to M.C., challenged the Agency's decision not to initiate dependency proceedings by filing an application, pursuant to section 331, seeking juvenile court review. The juvenile court ordered the Agency to file a dependency petition and to take M.C. into protective custody. The juvenile court subsequently declared M.C. a dependent child (§ 300, subds. (b), (c), (g)).

In the published portion of our opinion, we address whether section 331 violates the doctrine of separation of powers, to the extent it authorizes the juvenile court to order the Agency to file a dependency petition. We hold that, under the authority of section 331, the juvenile court may order the Agency to file a dependency petition and that this authority does not violate the separation of powers doctrine. In the unpublished portion of our opinion, we reject the Agency's various challenges to the court's jurisdictional and dispositional findings and orders.


Before addressing the facts unique to this case, we think it necessary to first discuss the governing statutes. The juvenile court system is a statutory creation. (See In re Ramon M. (2009) 178 Cal.App.4th 665, 672 [delinquency case].) "A 'juvenile court' is a superior court exercising limited jurisdiction arising under juvenile law. [Citation.] Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code." (In re Chantal S. (1996) 13 Cal.4th 196, 200.) "Under section 300, a child who is neglected or abused falls within the juvenile court's protective jurisdiction as a 'dependent child of the court.' Alternatively, the juvenile court may take jurisdiction over a minor as a 'ward of the court' when the child is habitually disobedient or truant (§ 601), or commits a crime (§ 602)." (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1123.)

The dependency statutes provide different avenues for presenting a child's circumstances to the juvenile court. Juvenile dependency petitions are filed by social workers. (§ 325.)*fn3 Thus, social workers are required to investigate suspected cases of child neglect and abuse and determine whether dependency proceedings should be commenced. (§ 328.)*fn4 If the social worker determines that a child is within the jurisdiction of the juvenile court, the social worker may decide that informal supervision is appropriate, in lieu of filing a dependency petition. (§ 301.)*fn5 If a child has been taken into custody and cannot be released to the custody of his or her parents, a social worker must immediately file a dependency petition with the juvenile court. (§§ 309, subd. (a), 311, subd. (a), 313, subd. (a).)*fn6

The statutes also provide methods for private parties to bring a minor's case to the attention of a social worker and juvenile court. (§§ 329, 331.) Section 329 provides: "Whenever any person applies to the social worker to commence proceedings in the juvenile court, the application shall be in the form of an affidavit alleging that there was or is within the county, or residing therein, a child within the provisions of Section 300, and setting forth facts in support thereof. The social worker shall immediately investigate as he or she deems necessary to determine whether proceedings in the juvenile court should be commenced. If the social worker does not take action under Section 330[*fn7 ] and does not file a petition in the juvenile court within three weeks after the application, he or she shall endorse upon the affidavit of the applicant his or her decision not to proceed further and his or her reasons therefore and shall immediately notify the applicant of the action taken or the decision rendered by him or her under this section. The social worker shall retain the affidavit and his or her endorsement thereon for a period of 30 days after notifying the applicant."

Section 331 provides: "When any person has applied to the social worker, pursuant to Section 329, to commence juvenile court proceedings and the social worker fails to file a petition within three weeks after the application, the person may, within one month after making the application, apply to the juvenile court to review the decision of the social worker, and the court may either affirm the decision of the social worker or order him or her to commence juvenile court proceedings."

It is the latter section we consider here.


Section 329 Application

On August 31, 2009, LSC submitted, to the Agency, an application to commence juvenile dependency proceedings by affidavit, pursuant to section 329. The application alleged that M.C. was currently homeless after coming to San Francisco, from Guatemala, to escape physical abuse by his father. M.C. had been referred to Huckleberry House for emergency shelter and then to Diamond Youth Shelter. The application also noted that both Huckleberry House and LSC had made hotline referrals to Child Protective Services (CPS).

The application further states: "The CPS investigation was closed August 26, 2009. It was explained to our office that the case was closed because [M.C.] was classified as a runaway. [¶] . . . Diamond Youth Shelter is not an appropriate placement for this minor. . . . An emergency housing shelter is an insufficient solution to [M.C.]'s problem of homelessness due to abuse by his father. [¶] . . . [M.C.] cannot return to his country of origin, Guatemala, as there is no one to care for him."

On September 15, 2009, Kristina Hermann, a social worker with the Agency, declined to commence juvenile court proceedings on behalf of M.C. Hermann endorsed the section 329 application and attached a statement of reasons for her decision. She stated that she met with M.C. on August 3, 2009, and concluded that the allegations of abuse and abandonment were unfounded. She explained: "[M.C.] stated that he is from a small town in Guatemala . . . . [M.C.] stated that he 'chose to leave Guatemala in June 2009, in search of employment and educational opportunities.' [M.C.] reported . . . that his parents and his siblings do not know that he left home for the U.S. [¶] . . . [M.C.] stated that his father has a history of drinking alcohol. He stated that in [his] country, 'it is common for men to drink after work.' . . . [M.C.] stated that his parents were not emotionally or physically abusive to him. [M.C.] stated that his father hit him only once, 'with an open hand to his face but it did not leave a bruise.' [M.C.] stated that his father and mother were not abusive to him. [M.C.] did report that there have been occasions when [his] father engaged in a physical altercation with [his] mother. [M.C.] stated that he witnessed the altercations a few times.

"[M.C.] reported that the town that he is from has limited economic opportunity and that his family has always struggled to make a living. He reported that he has 10 other siblings who have remained in the town and have not left for the U.S. as he did. [M.C.] stated that he left school at age 9 to work in construction, something he said 'is not that uncommon for guys where I'm from.' [M.C.] reported that his parents do provide adequate provisions at home for him and his siblings.

"[M.C.] stated that in or around June of 2009, he was invited by an older co-worker, 'Felipe' whom he worked with, to come to San Francisco, CA, to better his life. [M.C.] chose to leave Guatemala and his hometown despite the fact that he did not tell his parents that he was choosing to runaway to the U.S. [M.C.] reported that his parents still do not know that he left Guatemala for the U.S. He told [me] that there is no way of contacting them; neither by phone nor by mail. . . .

"[M.C.] reported that the trip to the U.S. took about 2 and a half weeks . . . and stated that they mostly hitch hiked rides with 'Felipe', and Coyotes . . . . [M.C.] stated that when he arrived in S.F., he panhandled for money in front of Safeway on Mission St. There he said, he met a man . . . who [M.C.] said, 'let me stay with him for several nights,' and then brought him to [LSC]. He completed an intake there and was then brought to Huckleberry House. [M.C.] stated that he does not have any way of contacting the gentleman who brought him to LSC. [¶] . . . [¶]

"[M.C.] stated that he came to the U.S. to go to school and work. [M.C.] reported that he is not afraid of his parents or to go back home to Guatemala, but that he would rather stay in the U.S., where he has more opportunity to work and attend school. [M.C.] does not have any relatives or friends here in the U.S. [M.C.] will be transitioning to live at Larkin Street Youth Services's [sic] shelter program where [he] will reside with case management services. [¶] . . . [¶]

"On 8/21/09, [I] spoke with [my supervisor] who stated that it seems clear that [M.C.] is a runaway minor and based upon the facts provided by [him], the allegations of abuse and neglect are unfounded. [M.C.] is not afraid to return home, and ther[e] are no safety factors presenting [sic] him from living in Guatemala, and [he] can in fact be transported back to Guatemala with the transportation assistance of [the Agency]."

On August 21, 2009, Hermann met with M.C. again, at his school. M.C. reported that "[he] has been attending school consistently, and living at Larkin Street Youth Services Diamond/Drop In Shelter for youth." He also stated that he had not had any contact with anyone in Guatemala. M.C. provided two phone numbers for contacts in Guatemala, neither of which were working numbers.

Hermann's report concluded: "It is [my] assessment . . . that [M.C.] has chose[n] to leave/runaway from his family and hometown behind in Guatemala in search of employment and educational opportunities in the U.S. While [M.C.]'s family is limited by their economic situation, [he] has stated, he 'is not fearful to return home.' He further added that he 'would rather stay in the U.S. to go to school and find work.' The allegations of abuse and neglect are unfounded as there is no evidence of abuse or neglect by his parents. Despite the limited economic conditions as described by [M.C.], he also reported that his family does provide adequate provisions for him and his siblings."

Section 331 Application

On September 29, 2009, LSC filed an application with the juvenile court, pursuant to section 331, seeking review of Hermann's decision. The section 331 application included a copy of the endorsed section 329 application. Attached was the above-described statement of Hermann's reasons for declining to take action.

A declaration from M.C. was also submitted with the section 331 application. In his declaration, M.C. stated: "I do not have any family members in the United States. [¶] . . . [¶] . . . My father is an alcoholic. When my father was drunk he would physically abuse my mother. I would get very upset every time I saw my father treat my mother this way but she had no other way to support herself. She has heart disease and cannot work. Many times I would get in his way to try and protect my mother and then he would hit me too. He was also violent toward my brothers and sisters. [¶] . . . Because of my father's drinking, there was never enough food to eat. I would give my mom the money that I earned so that she could use it to buy food for us. When my father worked he used his money to buy alcohol instead of food. My mother would also borrow money from my aunt to feed us. We do not have much land but there was an apple tree that we would eat from when we were very hungry. When the economy started getting bad, the money I made was not enough to support my family. . . . [¶] . . . [¶] . . . One day I met a man who said that he could bring me to the United States if I paid him 2,000 Quetzales (Guatemalan currency). . . . I could not stand the physical and emotional abuse from my father anymore and thought it was a good idea to leave with this man. I used my savings to pay the way. . . . [¶] . . . I came to the United States by bus and truck with the man that I had paid. The trip took many days and I crossed a desert and stopped in several big cities. After some days had passed, the man said we had arrived in San Francisco. We walked into a store and the man said that we would eat a sandwich and then he would take me with him to work. He told me to wait for him inside the store. I waited for many hours but the man never came back. While I was waiting I began to ask for money because I was very hungry. A man named Isidro came up to me and asked what I was doing in the store and where I was from. I told him that I had just come from Guatemala. Isidro took me to his home and gave me some food. He said that he could not afford to keep me in his house but that he would take me to [LSC.] [¶] . . . [¶] . . . I live at Diamond Youth Shelter with other kids. Because I cannot go there until it is late at night I try to do my homework at the Drop-In Office at Larkin Street. . . . [T]hey do not let us inside [the shelter] until 8:00 p.m. The times that I have arrived at the Shelter before it is open, I have had to wait outside in the cold."

On the same day that the application was filed, the juvenile court (Judge Hitchens) ordered the social worker "to commence proceedings by filing a petition pursuant to . . . section 300 based on the allegations set forth in this application." The Agency moved to set aside the order, arguing that the Agency had no opportunity to be heard and that the order was not properly served. The Agency and M.C.'s counsel were notified that the juvenile court would hold a hearing on October 7, 2009. Thereafter, the Agency filed a "Trial Brief," in which it argued, among other things, that section 331 violates the separation of powers doctrine and is unconstitutional.

At the hearing, the Agency requested the opportunity to present evidence. The court denied the request, stating: "[T]hat's what the jurisdictional phase is for. You don't get a trial on this particular issue, so I'm not going to allow that. I am going to order the [Agency] to file a petition. Obviously because it's a situation where the roles are somewhat reversed at the jurisdictional hearing in this matter, the burden is really going to fall on [M.C.] instead of the [Agency.] [¶] But I think there are sufficient allegations in this case to show that there is a prima facie showing that this child is an abused and neglected child to at least proceed."

On October 7, 2009, Judge Hitchens entered the following order (October 7 Order): "The Court, having heard further argument . . . , hereby affirms its decision initially made on September 29th, 2009 and orders the social worker to immediately commence proceedings in this matter. The [Agency] is ordered to take [M.C.] into its protective custody no later than 5pm on October 14, 2009."

Writ Review & Protective Custody Warrant

On October 9, 2009, the Agency filed a petition for writ of mandate (No. A126368) with this court. The Agency argued, among other things, that section 331 violates the separation of powers doctrine.*fn9 Pending further consideration of the petition for writ of mandate, we initially stayed the October 7 Order. Following briefing, we denied the petition and dissolved the stay. Specifically, our order, dated December 23, 2009, provided: "The petition for writ of mandate is denied, as [the Agency] has not persuasively demonstrated that it does not possess other adequate remedies at law to obtain a cessation of juvenile court proceedings, or that [it] cannot take steps to avoid the irreparable harm claimed in the petition. The court notes that [the Agency] does not contend that it lacks the ability to initiate a declaratory relief action to challenge . . . section 331 on separation of powers grounds. The previously issued stay is hereby ordered dissolved." The Supreme Court denied the Agency's petition for review.

Application for Protective Custody Warrant

On January 13, 2010, the new social worker assigned to the case, Erin Monahan, applied for a protective custody warrant, pursuant to section 340.*fn10 Monahan stated that she had interviewed M.C. on December 29, 2009. Monahan summarized that interview as follows: "[M.C.] indicated that both of his parents are good people and that he was well taken care of in Guatemala. He fondly recalled how his mother provided him with oil for his throat when he had been ill. His family in Guatemala is large and has helped his parents take care of [M.C.] and his 10 siblings. [¶] [M.C.] told me his father drank and sometimes 'drank away the money,' but that was what 'men do where I am from.' His extended family helps provide for the family in instances where it is necessary. [M.C.] indicated to me, as he did to Hermann in August, that his father hit him once, but left no mark or bruise. He said that there was no pattern of violence and his father never hit him again. [¶] When asked if his father was violent when he drank, [M.C.] was adamant that he was not. He further indicated that his father was not verbally abusive. [¶] . . . [¶] I discussed with [M.C.] the meaning of abuse and neglect, and he reiterated that he had been neither abused nor neglected in Guatemala. When asked if he was safe where he was, he indicated that he felt safe--that no one was hurting him or threatening him in any way. [¶] At the end of our discussion, I again asked [M.C.] if he was afraid of his parents or if he was afraid to return to Guatemala. He said he was not, but that he came to the United States to make money and be able to send some money back to Guatemala. He told me he was not running from anything, but was coming to the United States to seek a better life."

With respect to his life in San Francisco, Monahan wrote: "[M.C.] attends school regularly and takes advantage of services offered to him at school including after school tutoring and help with his homework. [¶] During school, he is provided free breakfast and lunch. During breaks from school, he gets free breakfast at the shelter. During the day he goes to the Drop in Center where he is provided lunch. The shelter offers dinner every night. [¶] The Drop in center, where [M.C.] can spend the day, closes at 7:30, and the Shelter opens at 8:00pm. [M.C.] indicated to me that he sometimes misses dinner. I contacted the shelter and confirmed that [M.C.] can tell the shelter in the morning if he will not be back in time for dinner and they will save him a plate of food. Residents of the shelter can get up to five meals a day . . . . [¶] [M.C.] indicated that the shelter provides a jacket for him--although he doesn't always wear it as he finds it too warm. I also confirmed that there is medical attention available at the shelter should it be necessary. [¶] . . . [¶] Late in the week of January 4, 2010, the [Agency] received a referral on [M.C.] indicating that he had a fever and there was no one to take him home."

Monahan concluded: "In my professional opinion--based on 20 years of child welfare investigations, [M.C.] has not been abused or neglected, nor is he facing immediate risk of harm where he currently resides. His basic needs are more than being met. Nonetheless, I understand in October 2009, the Juvenile Court ordered the Agency to take [M.C.] into protective custody. Since that order is over ten weeks old, I am seeking a warrant authorizing the Agency to take [M.C.] into protective custody." Judge Mahoney signed and issued the warrant the same day.

Dependency Petition & Detention Report

On January 15, 2010, the Agency filed a dependency petition on behalf of M.C., alleging that "minor's counsel claims" M.C. comes within the court's jurisdiction pursuant to section 300, subdivisions (b), (c), and (g). The Agency also filed a motion to dismiss the petition, asserting that it failed to state a cause of action.

The detention report, filed by Monahan on January 15, 2010, indicated that M.C. had been placed in a foster home. In that report, Monahan reiterated the facts she submitted in her request for a protective custody warrant. She also added: "Numerous phone calls . . . have been made to Guatemala to the parents and to the Guatemalan Consulate, but these have . . . proved unfruitful in locating the parents."

At the detention hearing, on January 19, 2010, Commissioner Lyons appointed counsel for mother and father. The court continued the matter for a contested detention hearing on February 4, 2010. On February 4, 2010, the juvenile court continued the matter again in order to find an appropriate interpreter, after learning that M.C.'s native language was Quiche (Mayan) and not Spanish. The matter was eventually set for April 26, 2010.

Contested Detention & Motion to Dismiss Hearing

By the time of the contested detention hearing, which took place on April 26 and May 13, 2010, mother and father had been located and were represented by appointed counsel. They submitted to detention. After the presentation of evidence by the Agency and M.C., the court found that father is M.C.'s presumed father. The court also found that a prima facie case had been made for detention and denied the motion to dismiss. Commissioner Lyons said: "I believe there's been enough evidence brought to the Court's attention that [M.C.] does come within 300(B)." M.C. was ordered detained in foster care.

Contested Jurisdiction/Disposition Hearing

In preparation for the contested jurisdiction hearing, Monahan filed a dismissal report, asking the court to dismiss the dependency petition. She wrote: "[I] must give the professional opinion that particularly in these budgetary times, it is not prudent nor is it appropriate to be using the Child Welfare system's thin resources for a person who does not appear to be at risk for harm (either if he stays here or if he returns to Guatemala). [M.C.] is almost an adult and seems to be able to navigate his world quite well. He has no special needs or disabilities and in fact appears quite healthy and happy and mature."*fn11

The contested hearing was held on July 26, 2010, before Judge Chaitin. The Agency and M.C. presented the testimony of several witnesses and the court admitted into evidence the detention and dismissal reports, among other exhibits. Notably, M.C. testified that his father beat him "many times."

In closing argument, the Agency's counsel questioned M.C.'s credibility. M.C.'s counsel urged the court to find jurisdiction, arguing "even putting aside 300B allegations, it's unequivocal that [M.C.] falls within court jurisdiction under section 300G, that he has been left without any provision for support." Mother's counsel noted: "[T]here's no question he is in the country in a jurisdiction where he has no parents or no provision for support. And the statute is quite clear. It makes no distinction between the child of one country to another country so long as the child is under 18 at the time jurisdiction is established. [¶] I think that statute is exactly there to protect this type of child who is found in a foreign country. We would want the same thing to happen to any kid in any other country." Father's counsel added: "[F]ather does support [M.C.]'s position here. And the evidence does seem to show that this family is unable or incapable at this time of providing for his needs."

Jurisdictional & Dispositional Findings

The court sustained the dependency petition and adjudged M.C. to be a dependant of the juvenile court. The court made the following findings:

* M.C. was physically abused by father while living in Guatemala;

* mother and father engaged in domestic violence in the home;

* M.C. was impacted negatively by the domestic violence;

* father has an alcohol problem and cannot parent M.C.;

* mother cannot protect M.C. from father;

* father has caused M.C. serious emotional damage as evidenced by anxiety, stress and fear he expresses at the thought of returning home;

* M.C. is homeless and suffers severe anxiety as a result;

* M.C. has been left without any provision for support;

* M.C. has been sleeping at Diamond Youth Center which is inappropriate;

* there would be a substantial danger to M.C.'s physical safety or physical/emotional well being if he were returned home;

* there is no reasonable means by which M.C.'s physical health can be protected without removal from the parents' custody.

M.C. was ordered placed in foster care. Reunification requirements were ordered "to be filed at [a] later date." On August 19, 2010, the Agency filed a notice of appeal.


On appeal, the Agency contends: (1) that the juvenile court's October 7 Order was either unauthorized by statute or in violation of the doctrine of separation of powers; (2) that substantial evidence does not support the findings made in connection with issuance of the protective custody warrant; (3) that the court's jurisdictional and dispositional findings are not supported by substantial evidence; (4) that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.); and (5) that the juvenile court abused its discretion in making certain evidentiary rulings at the contested jurisdiction/disposition hearing. M.C., mother, and father urge us to affirm the juvenile court's orders.*fn12 We agree that none of the Agency's arguments necessitate reversal.

A. Appealability

First, we consider whether the challenged orders preceding the dispositional order are reviewable on this appeal. Appeals in dependency proceedings are governed by section 395, which provides: "A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment . . . ." (§ 395, subd. (a)(1).) In dependency cases, the dispositional order is generally the first appealable order. (In re Joann E. (2002) 104 Cal.App.4th 347, 353-354; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250.) However, jurisdictional findings and other orders entered before the dispositional hearing are generally reviewable on appeal from the dispositional order. (In re Joann E., supra, 104 Cal.App.4th at p. 354 ["[i]f there is no specific statutory requirement that a writ be taken before a final, appealable order or judgment is entered, review of intermediate rulings and orders may occur on appeal"]; In re Athena P. (2002) 103 Cal.App.4th 617, 624; In re Megan B. (1991) 235 Cal.App.3d 942, 950 ["[a] jurisdictional finding, while not appealable, may be reviewed in an appeal from the dispositional order"]; Code Civ. Proc., § 906.)

One could argue that the October 7 Order, requiring the Agency to file the dependency petition, was separately appealable as a final order in a collateral proceeding, in which case the time to appeal has expired. (Cf. In re Keisha T. (1995) 38 Cal.App.4th 220, 229 [order granting a petition for press inspection of juvenile court records under § 827 "is appealable as a final judgment in a special proceeding" because the "petitions were not part of the dependency proceedings; the petitions commenced a special proceeding on a collateral matter"].) But, here, we cannot say that the section 331 application was separate and apart from the dependency proceedings. There would have been no dispositional order in this case if it were not for the October 7 Order compelling the Agency to initiate dependency proceedings. We conclude that the Agency properly challenges the October 7 Order and the jurisdictional findings on appeal from the dispositional order.*fn13

Next, we turn to the issue of mootness. M.C. argues that the Agency's objections to the October 7 Order have been mooted by the intervening jurisdictional findings. "An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way. [Citation.] An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. [Citations.] On a case-by case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outcome of the case in a subsequent proceeding. [Citation.]" (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.) M.C.'s argument has merit. But, we note that the Agency's primary argument is not that Judge Hitchens abused her discretion in making the October 7 Order, or that her order was unsupported by substantial evidence. Rather, the Agency challenges the juvenile court's power to make such an order. The statutory interpretation and separation of powers questions before us are of continuing public importance and similar disputes are likely to arise in the future. Accordingly, we will exercise our discretion to address these issues. (See In re Christina A. (2001) 91 Cal.App.4th 1153, 1158-1159.)

We will not, however, address the Agency's challenge to the juvenile court's January 13, 2010 issuance of the protective custody warrant.*fn14 The parties agreed, at oral argument, that the court's intervening orders render any error in the warrant's issuance moot. (See In re Richard D. (1972) 23 Cal.App.3d 592, 595 [erroneous failure to follow detention hearing procedural requirements rendered moot by subsequent wardship jurisdiction and disposition proceedings].) The Agency only argues that there was insufficient evidence to support issuance of the warrant. This is not an issue of continuing public importance.

B. Does Section 331 Violate the Separation of Powers Doctrine?

The primary issue presented is whether section 331 violates the separation of powers to the extent it authorizes the juvenile court to order a social services agency to file a dependency petition, over the agency's objection. This is a question of first impression. The Agency argues that a literal application of the statute unconstitutionally allows the juvenile court to usurp a power vested exclusively in the executive branch. Therefore, the Agency urges a narrow statutory construction, permitting the juvenile court only to review an agency decision not to file a dependency petition for abuse of discretion. According to the Agency, if an abuse is demonstrated, the court may only order further investigation by the social services agency.

The California Constitution provides: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (Cal. Const., art. III, § 3.)*fn15 "The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly . . . ." (Cal. Const., art. IV, § 1.) "The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed." (Cal. Const., art. V, § 1.) The judicial power is vested in the courts. (Cal. Const., art. VI, § 1.) "[T]he essential power of the judiciary [is] to resolve 'specific controversies' between parties." (People v. Bunn (2002) 27 Cal.4th 1, 15.)

"Although the language of California Constitution article III, section 3, may suggest a sharp demarcation between the operations of the three branches of government, California decisions have long recognized that, in reality, the separation of powers doctrine ' "does not mean that the three departments of our government are not in many respects mutually dependent" ' [citation], or that the actions of one branch may not significantly affect those of another branch. . . . [¶] At the same time, [the separation of powers] doctrine unquestionably places limits upon the actions of each branch with respect to the other branches." (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52-53.)

The Constitution "vest[s] each branch with certain 'core' [citation] or 'essential' [citation] functions that may not be usurped by another branch." (People v. Bunn, supra, 27 Cal.4th at p. 14.) "The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch. [Citations.] ' "The courts have long recognized that [the] primary purpose [of the separation-of-powers doctrine] is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government." ' [Citations.] To serve this purpose, courts ' "have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch." ' [Citations.]" (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297 (Carmel Valley Fire Protection Dist.).)

"The doctrine, however, recognizes that the three branches of government are interdependent, and it permits actions of one branch that may 'significantly affect those of another branch.' [Citation.] . . . 'The purpose of the doctrine is to prevent one branch of government from exercising the complete power constitutionally vested in another [citation]; it is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch.' (Younger v. Superior Court (1978) 21 Cal.3d 102, 117.)" (Carmel Valley Fire Protection Dist., supra, 25 Cal.4th at p. 298, italics added & parallel citation omitted.) One branch of government may perform an act or exercise a function affecting another branch provided it does not "defeat or materially impair" the exercise of a power of the other branch. (Id. at p. 305.) " ' "The [separation of powers] doctrine has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another. . . ." [Citation.]' " (In re Attorney Discipline System (1998) 19 Cal.4th 582, 596, italics omitted.)

1. Statutory Interpretation

First, the Agency attempts to persuade us to limit section 331 through statutory interpretation. (See People v. Bowen (1991) 231 Cal.App.3d 783, 789 ["constitutional questions are to be avoided when a case may be decided on other grounds"].) The Agency argues that "[t]he [juvenile] court's jurisdiction under the statute should extend only to ordering the Agency to investigate allegations of abuse or neglect and to reviewing the Agency's decision whether to commence juvenile court proceedings for legal error or a clear abuse of discretion. In the event the court finds legal error or abuse of discretion, the remedy would not be to order the [A]gency to file a petition but rather to revisit the matter consistent with the legal standards the court sets down."

We review questions of statutory interpretation de novo. (County of Alameda v. Pacific Gas & Electric Co. (1997) 51 Cal.App.4th 1691, 1698.) "The primary duty of a court when interpreting a statute is to give effect to the intent of the Legislature, so as to effectuate the purpose of the law. [Citation.] To determine intent, courts turn first to the words themselves, giving them their ordinary and generally accepted meaning. [Citation.] If the language permits more than one reasonable interpretation, the court then looks to extrinsic aids, such as the object to be achieved and the evil to be remedied by the statute, the legislative history, public policy, and the statutory scheme of which the statute is a part. [Citation.] . . . Ultimately, the court must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and it must avoid an interpretation leading to absurd consequences. [Citation.]" (In re Luke W. (2001) 88 Cal.App.4th 650, 655.)

Section 331 provides: "When any person has applied to the social worker, pursuant to Section 329, to commence juvenile court proceedings and the social worker fails to file a petition within three weeks after the application, the person may, within one month after making the application, apply to the juvenile court to review the decision of the social worker, and the court may either affirm the decision of the social worker or order him or her to commence juvenile court proceedings." (Italics added.)

The Agency's suggested interpretation of the statute conflicts with its plain language. "In ordinary statutory usage a proceeding is commenced by the filing of a petition or complaint. . . ." (People v. Marchman (2006) 145 Cal.App.4th 79, 88.) Consistent with that ordinary understanding, section 325 provides: "A proceeding in the juvenile court to declare a child to be a dependent child of the court is commenced by the filing with the court, by the social worker, of a petition, in conformity with the requirements of this article." (Italics added.)

People v. Karriker (2007) 149 Cal.App.4th 763 (Karriker) does not support the Agency's argument that section 331's phrase "commence juvenile court proceedings" means something other than the filing of a dependency petition. In Karriker, the Sonoma County Public Conservator appealed an order, entered in criminal proceedings, that directed her to file a petition to establish a conservatorship under the Lanterman-Petris-Short Act (LPS Act; § 5000 et seq.) for an incompetent defendant. (Karriker, supra, 149 Cal.App.4th at pp. 770, 772.)

In its review of the governing statutes, Division Three of this court observed that section 5352.5 provided: " '[C]onservatorship proceedings may be initiated for any person committed to a state hospital . . . pursuant to Section . . . 1370 of the Penal Code . . . upon recommendation of the medical director of the state hospital . . . to the conservatorship investigator of the county of residence of the person prior to his or her admission to the hospital.' " (Karriker, supra, 149 Cal.App.4th at p. 777, italics added.) Penal Code, section 1370, subdivision (c)(2), also provided, in relevant part: " 'Whenever any defendant is returned to the court pursuant to paragraph (1) or (2) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 . . . , the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 . . . .' " (Karriker, at p. 777, fn. 5, italics added.) The question on appeal was whether Penal Code section 1370, subdivision (c)(2), authorized the court only to refer a matter for investigation or whether it authorized the court to order the conservator to file a conservatorship petition. (Karriker, at p. 782.)

The court noted that " '[i]n ordinary statutory usage a proceeding is commenced by the filing of a petition or a complaint' (People v. Marchman[, supra,] 145 Cal.App.4th [at p.] 88) . . . ." (Karriker, supra, 149 Cal.App.4th at p. 782, parallel citation omitted.) However, under Chapter 3 of the LPS Act, which was specifically referenced in Penal Code section 1370, "proceedings are initiated when an authorized person recommends a conservatorship and the conservatorship investigator conducts an investigation to determine whether an LPS conservatorship is justified." (Karriker, at pp. 782-783, citing § 5352.5 [entitled "Initiation of proceedings"].) The court observed: "We see no reason to distinguish between the 'initiation' of conservatorship proceedings as that term is used in the LPS Act itself and the initiation of proceedings under the Act to which reference is made in Penal Code section 1370. The provisions in both codes cross-reference each other and were obviously intended to be applied in a consistent manner." (Karriker, at p. 783.) Accordingly, the court was only authorized to refer the matter for a conservatorship investigation and could not order the conservator to file a petition if it was determined the requirements for a conservatorship were not met. (Id. at pp. 770, 789.)

Karriker does not aid us in resolving the question presented by the Agency. The Karriker court construed only the statutes at issue in that case--a scheme in which "initiat[ion] of conservatorship proceedings" clearly meant investigation by the conservatorship investigator. (Karriker, supra, 149 Cal.App.4th at p. 777.) Contrary to the Agency's assertion, the statutory scheme at issue in this case is not "remarkably similar." Here, the plain language of both sections 325 and 331 make clear that "commencement of juvenile court proceedings" means the filing of a dependency petition.

Finally, sections 329 and 331 make clear that the social worker must have already conducted an investigation and have declined to commence dependency proceedings before section 331 is invoked. We cannot construe section 331 as only allowing the juvenile court to order yet another investigation by the social worker. "An interpretation that renders statutory language a nullity is obviously to be avoided. [Citation.]" (Williams v. Superior Court (1993) 5 Cal.4th 337, 357.)

Section 331, by its clear terms, authorizes the juvenile court to independently review the social worker's decision not to file and either affirm that decision or order the social worker to file a dependency petition. Our conclusion is consistent with the Fourth District Court of Appeal's observation, in Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, that section 331 is an exception to the social worker's discretion to decide whether to file a dependency petition. (Id. at pp. 1073, fn. 7, 1074-1075 [holding DSS does not have absolute right to dismiss dependency petition over minor's objection]; see also Cal. Rules of Court, rule 5.520(a) ["[e]xcept as provided in sections 331 and 364, . . . the social worker . . . has the sole discretion to determine whether to file a petition under section 300" (italics added)].) The juvenile court did not exceed its statutory authority in making the October 7 Order. We must therefore address the separation of powers question.

2. Separation of Powers Analysis

The Agency contends: "[T]o the extent section 331 empowers the juvenile court to order the Agency to perform a quintessentially executive act--the filing of a petition--the statute thrusts the court into the performance of a core executive function. The court's order in this case usurps the Agency's exclusive executive authority, to wit, it's [sic] discretionary power to decide whether to file a petition to initiate dependency proceedings to protect an abused or neglected child." (Italics added.)

The problem with the Agency's argument is that it assumes that it has been vested with the exclusive authority to decide whether to initiate dependency proceedings. The Agency has not directed us to any section of the California Constitution or the Welfare and Institutions Code that provides it with such exclusive power. In fact, sections 329 and 331 make clear that the Agency does not have sole discretion in this area.

We have located only a few published decisions addressing whether a juvenile court has unconstitutionally usurped a power of the executive branch in the dependency context. In re Z.C. (2009) 178 Cal.App.4th 1271 (Z.C.), In re Ashley M. (2003) 114 Cal.App.4th 1 (Ashley M.), and Alliance for Children's Rights v. Los Angeles County Dept. of Children and Family Services (2002) 95 Cal.App.4th 1129 (Alliance) provide actual guidance.*fn16

In Z.C., Division Two of this court considered a challenge by the Alameda County Social Services Agency to the juvenile court's order requiring the provision of reunification services to a minor and her legal guardian. (Z.C., supra, 178 Cal.App.4th at p. 1275.) The agency argued that the juvenile court was limited to recommending the provision of services in such a situation. (Id. at p. 1276.) Division Two concluded that the governing statute "plainly provides the juvenile court with the authority to determine whether the legal guardianship should be maintained and whether it would be in the child's best interest to maintain the legal guardianship with reunification services." (Id. at pp. 1277, 1280.) The Z.C. court rejected the agency's separation of powers argument. (Id. at pp. 1286-1288.)

In Ashley M., we considered whether the juvenile court exceeded its authority by directing that a particular social worker be assigned to a case. (Ashley M., supra, 114 Cal.App.4th at p. 4.) We concluded: "[I]n compelling the participation of a particular social worker the juvenile court exceeded its authority. As a matter of public policy and under the doctrine of separation of powers, designation of the social worker to perform the tasks of the social services agency must be left to the discretion and expertise of the [agency's] director." (Id. at p. 10.) Our decision rested on the fact that the juvenile court had no statutory power to designate a particular social worker to a case. (Id. at pp. 8-9 & fn. 4.) In fact, the Legislature had, by statute, given internal management authority solely to the county's director of social services. Accordingly, we concluded: "The determination of how best to assign duties to employees and otherwise allocate the agency's resources is not a judicial function and must be left to the agency's own discretion." (Id. at p. 9.)

Alliance involved DSS regulations requiring social workers to visit each dependent child monthly, unless certain exceptions were established. (Alliance, supra, 95 Cal.App.4th at pp. 1132, 1142.) A children's advocacy group petitioned the juvenile court, challenging the practice of the county department of child and family services of granting waivers from the monthly visitation requirement. Specifically, the group sought a special order prohibiting the use of visitation waivers by the department. (Id. at pp. 1132-1133.) The juvenile court refused to issue such a prohibition, but did issue an order that required the social worker to submit each waiver to the judicial officer overseeing a dependency case to determine whether a waiver is in the best interest of the particular child. (Id. at pp. 1132, 1138, 1142.) The department appealed, arguing the ruling violated the separation of powers doctrine because it imposed judicial review on decisions properly made exclusively by the department. (Id. at pp. 1132, 1142.) The Second District Court of Appeal affirmed, noting that "[o]nce a child becomes a dependent ward, 'the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . .' (§ 362, subd. (a).)" (Alliance, supra, at pp. 1141, 1143.) The department conceded that the juvenile court is empowered and obligated to review the frequency and adequacy of visitation as part of its ongoing supervision of a dependant child. (Id. at pp. 1137, 1143.) The court concluded that the juvenile court's order did not violate the separation of powers or "improperly divest [the department] of its discretionary role in the waiver process." (Id. at p. 1143.) The court emphasized: "The trial court's order does not affect [the department's] decision whether a waiver is appropriate in particular cases. The order does not prevent [the department] from using waivers in general. The order retains [the department's] discretion to initiate and study whether a waiver is appropriate in an individual case. . . . The only additional step contemplated by the order is court review before, rather than after, less frequent visitation is put in place." (Id. at pp. 1142-1143.)

In Ashley M., we discussed the unique division of responsibilities in the juvenile court system. (Ashley M., supra, 114 Cal.App.4th at pp. 6-8.) Specifically, we stated: "The county's social services agency plays a 'hybrid' role in dependency proceedings, exercising both executive and judicial functions. (See [Danielle W., supra,] 207 Cal.App.3d [at p.] 1238.) 'The juvenile law system envisions a cooperative effort between the [social services agency] and the juvenile court.' (Id. at p. 1234.) The social services agency has the initial responsibility to investigate allegations of abuse or neglect and has authority to take temporary custody of an abused or neglected child. (§ 306.) But the agency must account to the court on the reasons for removing the child from home and on the services available to facilitate the child's return. (§ 319.) When, at the disposition hearing, the court decides to keep the child out of parental custody, the court must (with exceptions) order the social services agency to provide child welfare services to the parents and the child with the aim of reuniting the family. (§§ 300.2, 361.5, subd. (a).)

"In providing child welfare services, the county's social services agency acts as an administrative agency of the executive branch, subject to supervision by [DSS]. (§§ 202.5, 10000, 10051, 10800, 16500, 16500.1, 16501; Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 143-144; [Danielle W.], supra, 207 Cal.App.3d at pp. 1235-1236, fn. 6.) The juvenile court maintains ultimate control over the delivery of services through its authority to decide that the services offered or provided to the parents were unreasonable and that further services must be offered by the social services agency. (§§ 366, subd. (a)(1)(B), 366.21, subds. (e), (f), 366.22, subd. (a), 366.26, subd. (c)(2); see In re Daniel G. (1994) 25 Cal.App.4th 1205, 1213-1215.)

"In addition to providing child welfare services to the family involved in a dependency proceeding, the county's social services agency provides essential information to the court. At each stage of the dependency proceeding, the social services agency is statutorily mandated to prepare social study reports and make recommendations to assist the court. (§§ 280, 281, 319, subd. (b), 358, subd. (b), 358.1, 361.5, subd. (c), 364, 365, 366.21, subds. (c), (e), (f), 366.22, subd. (a), 366.26, subd. (b).) In this role, the social services agency acts as an impartial arm of the court in assisting the court to carry out the Juvenile Court Law. [Citations.]" (Ashley M., supra, 114 Cal.App.4th at pp. 7-8, italics added, fn. & parallel citations omitted.)

We also observed, in a footnote: "The social services agency . . . serves an executive function when it acts as the prosecuting arm of the state and initiates a juvenile dependency proceeding. (§§ 309, 311, 325; see Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 880-881 [(Alicia T.)]; In re Danielle W., supra, 207 Cal.App.3d at p. 1238.) The same is true during the course of the dependency proceeding, in which the social services agency bears the burden of proof. (§§ 319, 350, subd. (c), 355, 366.21, subds. (e), (f), 366.22, subd. (a), 366.26, subd. (c)(1).)" (Ashley M., supra, 114 Cal.App.4th at p. 7, fn. 3, parallel citations omitted.)

These cases make clear that the scope of the juvenile court's and the social service agency's authority in the "cooperative effort" is defined by the juvenile dependency statutes themselves. The Agency's reliance on Ashley M. is misplaced, because the juvenile court has specifically been authorized by statute to review the Agency's decision not to file a dependency petition on behalf of a particular minor. (See §§ 329, 331.) In Ashley M., no statute gave the juvenile court the authority to designate a particular social worker. (Ashley M., supra, 114 Cal.App.4th at pp. 8-9.) While we characterized the role of a social services agency in initiating a juvenile dependency proceeding as an "executive function" (id. at p. 7, fn. 3), the power to initiate juvenile court proceedings was not at issue in Ashley M., and we did not, in any event, intend to suggest that the juvenile court could not constitutionally supervise the agency's exercise of that function, pursuant to section 331.*fn17 In fact, we noted that the juvenile court maintains "ultimate control" over the social services agency's delivery of reunification services, which we also deemed an executive function. (Ashley M., at pp. 7, 9.)

The instant case is more analogous to Z.C. and Alliance. As in Z.C. and Alliance, it is clear here that the juvenile court has statutory authority to review the social worker's decision to decline to initiate dependency proceedings. (See § 331; Z.C., supra, 178 Cal.App.4th at pp. 1287-1288; Alliance, supra, 95 Cal.App.4th at pp. 1141, 1143.) Furthermore, like the order at issue in Alliance, section 331 does not strip the Agency of its exclusive authority to make an initial determination of whether dependency proceedings are appropriate in an individual case. (§§ 290.1, 301, 306, 309, 311, 328, 329; Alliance, supra, 95 Cal.App.4th at p. 1142.) Section 331 merely provides that, in a subset of those cases in which the Agency decides not to initiate proceedings or undertake informal supervision, the court will subject the social worker's determination to review.*fn18 The Agency does not persuasively explain why judicial review consistent with the dependency statutes was legitimate in Alliance but unconstitutional in this case.

Attempts to analogize to the decision to initiate a criminal prosecution are inapt. The Agency relies on cases like People v. Municipal Court (1972) 27 Cal.App.3d 193, 206 (Pellegrino), in which the Second District Court of Appeal barred a trial court from accepting criminal charges instituted by private citizens without the approval of the district attorney. The California Constitution expressly provides that law enforcement and the prosecution of crimes are core executive branch functions. (Cal. Const., art. V, § 13; former Cal. Const., art. VI § 20 ["[t]he style of all process shall be 'The people of the State of California,' and all prosecutions shall be conducted in their name and by their authority"]; see now Gov. Code, § 100, subd. (b).)*fn19 The governing statutes also make clear that the criminal prosecutor's charging decision is an exclusively executive function. (Gov. Code, §§ 100, subd. (b), 26500, 26501.) It is this constitutional and statutory framework that has led courts to recognize that the separation of powers doctrine forbids judicial interference with the prosecutor's charging discretion. (See Pellegrino, supra, 27 Cal.App.3d at pp. 200, 204; People v. Mikhail (1993) 13 Cal.App.4th 846, 854; People v. Smith (1975) 53 Cal.App.3d 655, 659-660 ["court acted beyond its authority in accepting a plea of guilty to a lesser nonincluded but related offense over the prosecutor's objection"].) There is no similar constitutional or statutory support for the Agency's position in this case.

Furthermore, juvenile dependency proceedings are not criminal proceedings. (See In re Malinda S. (1990) 51 Cal.3d 368, 381, superseded by statute on another ground as stated in In re Lucero L. (2000) 22 Cal.4th 1227, 1240-1242.) The purpose of a dependency proceeding is to protect the child, rather than prosecute the parent. (In re Malinda S., at pp. 384-385; In re Alysha S. (1996) 51 Cal.App.4th 393, 397; § 300.2.) In light of the state's strong parens patriae interest in preserving and promoting the welfare of the child (In re Sade C. (1996) 13 Cal.4th 952, 989), we can understand why the Legislature chose to give the juvenile court authority to review a decision not to initiate dependency proceedings. The statutory scheme simply provides some additional measure of protection to ensure an abused or neglected child does not slip through the cracks. In fact, the Legislature appears to have clearly distinguished the decision to initiate juvenile delinquency proceedings for criminal offenses, under section 602, from the decision to initiate wardship proceedings, under section 601, for minors beyond the control of parents or habitual truants.*fn20 Under section 655, the former decision is subject to the prosecuting attorney's ultimate control while the latter decision is subject to judicial review. (Compare § 655, subd. (a) with § 655, subd. (b).)*fn21

As we have noted, the Agency and its amicus cite only dicta in cases not considering sections 329 and 331 to suggest that the decision to file a dependency petition is an exclusively executive function. And, we cannot agree that, under section 331, the juvenile court is asked to perform an inherently non-judicial function. Rather, under section 331, the juvenile court adjudicates a controversy. Whomever filed the affidavit pursuant to section 329 will initiate the section 331 proceeding before the juvenile court. The juvenile court must receive and consider not only the section 329 affidavit, but also the social worker's endorsement stating the reasons why he or she declined to proceed. (§§ 329, 331.) The court may also consider additional evidence in the form of investigative reports by the social worker, declarations, and, if necessary, witness testimony. Upon receipt of this evidence, the court makes an independent assessment of whether "there was or is within the county, or residing therein, a child within the provisions of Section 300."*fn22 (§§ 329, 331.) This is similar to the role the juvenile court plays at the detention and jurisdiction hearings. (§ 319, subd. (b) ["[t]he court shall order the release of the child from custody unless a prima facie showing has been made that the child comes within Section 300"]; § 355, subd. (a) ["[a]t the jurisdiction hearing, the court shall first consider only the question whether [proof by a preponderance of evidence shows] the minor is a person described by Section 300"].)

We do not intend to suggest, however, that an applicant under section 331 need only present a prima facie showing of dependency jurisdiction. While such a showing is a necessary predicate, the court's independent review of the evidence should also give due consideration to the social worker's determination and the court may properly rely upon the agency's expertise for guidance. (See In re Miguel E. (2004) 120 Cal.App.4th 521, 548; In re Robert A. (1992) 4 Cal.App.4th 174, 189.) Ultimately, the juvenile court must exercise its own discretion to determine whether the child comes within section 300 and whether the filing of a dependency petition is necessary for the child's welfare.*fn23 (See Allen M., supra, 6 Cal.App.4th at p. 1074 ["[a]lthough the court may accord great deference to the Department's expertise [when the Department wishes to dismiss a petition over objection], the primary focus of the court is the determination of whether dismissal is in the interests of justice and the welfare of the minor"].) The court may either affirm the social worker's decision or order the social worker to file a dependency petition. Neither side discusses the appropriate standard for appellate review of the juvenile court's section 331 determination. Since the issue is not before us, we do not decide it.

In conclusion, we fail to see how the judiciary can "usurp" a power never exclusively vested in the executive branch. We find nothing in our Constitution or the statutory dependency scheme that would classify initiation of dependency proceedings as a "core" or "essential" executive function. Nor do we see how the limited judicial review provided by section 331 would "defeat or materially impair" the executive authority which is vested in the Agency.*fn24 (See People v. Bunn, supra, 27 Cal.4th at p. 14; Carmel Valley Fire Protection Dist., supra, 25 Cal.4th at p. 305.)

We hold that section 331 does not violate article III, section 3, of the California Constitution. The juvenile court did not violate the separation of powers doctrine when it ordered the Agency to file a dependency petition on M.C.'s behalf.*fn25

C. Substantial Evidence Supports the Court's Jurisdictional Findings

The Agency also asserts that the juvenile court's jurisdictional findings are not supported by substantial evidence. "We review the juvenile court's jurisdictional findings for sufficiency of the evidence. [Citations.] We review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible. [Citation.] 'However, substantial evidence is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, "[w]hile substantial evidence may consist of inferences, such inferences must be 'a product of logic and reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations]." [Citation.] "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." [Citation.]' [Citation.]" (In re David M. (2005) 134 Cal.App.4th 822, 828, italics omitted.) "A reviewing court is in no position to judge the credibility of witnesses or reweigh the evidence, and therefore must resolve all evidentiary conflicts in favor of the juvenile court's findings." (D.M. v. Superior Court, supra, 173 Cal.App.4th at p. 1128.)

1. Background

The Agency called Monahan to testify at the contested jurisdiction/disposition hearing. Monahan testified that she was assigned to M.C.'s case in December 2009, and interviewed him at that time, in Spanish. Monahan found no evidence of abuse or neglect. M.C. denied being physically or emotionally abused and told Monahan that he came to the United States to obtain an education and a better life. Physically and emotionally, M.C. appeared normal. Monahan concluded that M.C. was not at risk for abuse or neglect.

It appeared to Monahan that M.C. lived in serious poverty in Guatemala. But, she stated: "poverty does not constitute neglect." Monahan testified that M.C. was not homeless before being placed with foster parents because he was being served by the Larkin Street Youth Center Services Program. She also testified that M.C. had not been left without provision for support because "he came here on his own volition . . . ."

Monahan conceded on cross-examination that M.C. did tell her that "[father] would . . . drink away some of the family's money." But, M.C. himself told her, five or six months before the hearing, that father had stopped drinking. Monahan testified that father "might be" a binge drinker and that he had experienced periods of sobriety in the past. Monahan asked M.C. if father became violent when he drank. M.C. said "he yelled and did name call."

Monahan was aware that M.C. told another social worker, on November 11, 2009, that he was sad because he had no place to go when school is not in session. Monahan also conceded that, if the dependency petition were withdrawn and M.C. remained in the United States, there would be no parent or guardian to authorize medical care. Monahan testified that if M.C. were returned home to Guatemala "[t]here's no risk because of his age, because of the lack of any physical indicators of abuse or trauma, because of his assessment of mental health." Monahan had never spoken to mother, despite having repeatedly asked. She always ended up speaking to father when she called. But, Monahan testified that, from what M.C. had told her, mother was a suitable parent.

Hermann testified that she investigated the report that M.C. had been abused and neglected. Hermann testified that she interviewed M.C., in Spanish, and concluded that the allegations of neglect and abuse were unfounded. With respect to the allegations of physical abuse, Hermann testified that "[M.C.] said that he was hit one time by his father. He said that it happened with an open hand and that it did not leave a bruise." M.C. also told her that he was not emotionally abused and that "he wanted to leave [Guatemala] not because of any . . . bad feelings towards his parents, but because he wanted a better opportunity in the United States." M.C. also told Hermann that he was not afraid to return to Guatemala. With respect to M.C.'s father's drinking, Hermann testified: "I understood from [M.C.] . . . that his father had engaged in drinking in a recreational way after work. And that it did not come into difficulty in terms of providing for the family or in terms of providing any risk to his own safety." Hermann also testified: "I asked him if he had ever witnessed . . . any physical altercations. And he said that he had witnessed a couple times physical altercations between . . . his father and his mother. . . . But he stated that, no, it didn't cause him any type of emotional reaction."

The Agency called Greg Loveseth, a clinician with Foster Care Mental Health Services, to testify. He testified that he interviewed M.C., in Spanish, when he entered foster care in February 2010. M.C. told Loveseth that he had not been physically or emotionally abused by his parents. M.C. also said that father had a history of alcohol abuse, but that "it was normal within his community," and that he had heard in a recent phone conversation that father had quit drinking. M.C. also told Loveseth that his family lived in poverty, but that his parents were able to provide for him. Loveseth concluded that M.C. was "not at a high level of risk for experiencing abuse."

M.C. testified, with the aid of a Quiche interpreter. He testified that father has a drinking problem, saying "there are times that he drinks like two or three months on." M.C. also stated that when father drinks "he spends the [family] money on drinking and doesn't have anything to take home."

M.C. testified that he left school at age eight to start working. When his father drank, M.C. was the primary source of support for the family. M.C. testified: "When [father] was drinking, he will get abusive and he will yell at my mother. He will hit my mother. And my mother will go outside and hide with my siblings. [¶] . . . [¶] [Father] said to me that I should go to work, or I'll beat you if you don't go to work. I'll beat you up if you don't go to work." M.C. didn't witness his father hitting his mother, but his siblings told him about it.

When asked about father's treatment of his siblings, M.C. testified that his father would come home late at night and beat them, particularly Giovani. M.C. testified: "When my brother Giovani was beaten by my father, I wanted to help him but I couldn't because my father was beating him up. [¶] . . . [¶] And he was beaten by my father and I was trying to save him and my mother would cry and they will be outside and he will be beating him up. Then my father, I don't know if he wanted to kill him. I don't know but he had this stick that he was beating him up. . . . He wanted to kill my brother, I think." M.C. explained: "There's a lot of things that I can say but it's really hard for me to say it. And [father] threatened me saying that don't say anything or all your brothers, they going to be taken away if you say anything. [¶] And my mother also saying don't say anything or your brothers, they were going to be taken away; so don't say anything. And there are a lot of stories I can tell about Giovani. [¶] . . . [¶] Giovani was beaten a lot. Many times."

M.C. was asked "has your father ever hit you or put his hands on you?" M.C. responded: "[Y]es, he beat me up many times. But this particular time when I was up in the woods and I was collecting wood and . . . it was raining, and then I got really soaking wet and he came and beat me up. [¶] And then I left into the woods and . . . I was trying to escape and run away . . . . [¶] Many times when I was in Guatemala, I felt like just to kill myself because there was no reason to live anymore. [¶] My parents, they're not worth it to live with them."

M.C. testified that he had no friends or family in San Francisco. When he arrived, he was abandoned by the man who brought him from Guatemala. M.C. ended up begging on the streets for money before he was connected with LSC.

When cross-examined about his statements to Hermann, Monahan, and Loveseth, M.C. largely stated that he did not remember what he told them. M.C. denied that anyone had told him to change his story and said "I'm just telling the truth right now."*fn26 He admitted telling Monahan, in June 2010, that father was no longer drinking. When asked if he knew whether father was currently drinking, M.C. stated: "I don't know because it's been a while that I haven't talked to him."

Angie Rodriguez, a Spanish-speaking case manager at Larkin Street Youth Services, was called to testify by M.C. She made a report to CPS regarding M.C., in August 2009, because he was an unaccompanied minor and because "he reported . . . that there were times that there was no food in the house because the father was the bread winner, and [M.C.] reported to me that [father] spent most of his money on gambling and drinking. And also, there were times . . . that he could not go to school because he was told he had to work." M.C. also reported that "[father] would come home and lash out on his children . . . ." M.C. told Rodriguez that he left because his home situation caused him a lot of stress. She conceded, on cross-examination, that she wrote on her CPS referral that M.C. "left home to make money in the states."

Caleb Maldonado, a counselor at Larkin Street Youth Services, testified that M.C. told him about his father's alcohol abuse and that M.C. was forced to work to support the family. M.C. also told Maldonado that his father physically abused him and his brothers.

Vlada Teper, M.C.'s teacher and adviser, testified that when she met M.C. in August 2009, he was sick, vomiting blood, and had headaches. M.C. told Teper that he and his siblings often went hungry because his father was an alcoholic who used what little money the family had to buy alcohol. M.C. also told Teper that he found his father drunk in a ditch on one occasion. She added: "I was very concerned because [M.C.] had a very hard time talking about [his family.] When he shared this with me, he was crying. He talked about being very upset and going to sleep at night crying as well. So also he shared this with me in September . . . and at that point he was having difficulty eating and just was very distressed and depressed." She testified that M.C. was frequently sick during the first semester of school. After being placed in foster care, "[h]e was sick less often definitely, and he seemed happier."

The court sustained the dependency petition, concluding that jurisdiction had been established under section 300, subdivisions (b), (c), and (g). In its written order, dated July 26, 2010, the court observed: "[M.C.] testified at length before this Court and vividly described the emotional and physical abuse and neglect he endured in his family, with his father as the abuser and his mother's inability to protect the family. [M.C.] cried, inconsolably, when detailing his father consistently beating up his brother and his powerlessness to come to his brother's aid. The [Agency]'s counsel vigorously cross examined the minor. At no point did the minor retreat from maintaining that he was emotionally and physically abused and neglected. The Court carefully observed his demeanor while testifying. [M.C.] testified with sincerity and credibility. His testimony was unrehearsed and genuine. [¶] . . . Many reasons exist why he did not disclose the full details of his abuse and neglect to the [Agency]. According to Mr. Maldonado, his parents told him not to 'tell' about the abuse, and in his eyes, the [Agency] is the government. The language barrier hampered his understanding and fluency and added to his discomfort discussing the abuse and neglect with the [Agency] with whom he had more formal contact as compared with his counselors and teacher. Finally, re-living the abuse and neglect was extremely upsetting, as it appeared to be when he testified. Each time he told the story he was re-traumatized by it. The Court is satisfied that he testified truthfully."

2. Analysis

The court found jurisdiction under section 300, subdivisions (b), (c), and (g). We need not consider all three subdivisions because "the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent. [Citations.]" (In re Alysha S., supra, 51 Cal.App.4th at p. 397.) Substantial evidence supports the court's jurisdictional finding under section 300, subdivision (b).

Pursuant to section 300, subdivision (b), a juvenile court may determine a child is subject to the court's jurisdiction if it finds by a preponderance of the evidence that "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, . . . the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." Section 300, subdivision (b), also provides: "The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."

" 'The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the minor, or a "substantial risk" of such harm or illness.' (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) . . . Section 300, 'subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to ["]a substantial risk of serious physical harm or illness." [Citation.]' [Citation.]" (In re David M., supra, 134 Cal.App.4th at p. 829, italics & parallel citation omitted.)

This Division has previously suggested that past conduct, alone, may be sufficient to support a jurisdictional finding under section 300, subdivision (a). (In re David H. (2008) 165 Cal.App.4th 1626, 1642-1644.) At least one court has come to the same conclusion with respect to section 300, subdivision (b). (In re J.K. (2009) 174 Cal.App.4th 1426, 1435, 1439.) Other courts have concluded that "the juvenile court [cannot] properly exercise jurisdiction over any [child] under section 300, subdivision (b), if the evidence showed they were not at current risk of serious physical harm . . . ." (In re J.N. (2010) 181 Cal.App.4th 1010, 1025; see also In re Rocco M., supra, 1 Cal.App.4th at p. 824.) We need not resolve the conflict because the record shows that M.C. is at current risk of serious physical harm.

Past harmful conduct is relevant to the risk of future harm. (In re David M., supra, 134 Cal.App.4th at p. 831; In re Rocco M., at p. 824.) And, we are not dealing with a single allegation of past abuse. The trial court expressly credited M.C.'s testimony that he had been beaten "many times" by his alcoholic father. We may not reweigh that determination. (D.M. v. Superior Court, supra, 173 Cal.App.4th at p. 1128.) " 'It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses.' " (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.)

The Agency argues that, even accepting M.C.'s testimony, there was no substantial evidence of a risk to M.C., at the time of the jurisdiction hearing, because it was undisputed that father had quit drinking. But, it was also undisputed that father had a long history of binge drinking and had experienced periods of sobriety in the past. There was no evidence that father had undergone substance abuse treatment of any kind. In fact, when M.C. was asked if he knew whether his father was drinking at the time of the jurisdiction hearing, M.C. stated: "I don't know because it's been a while that I haven't talked to him." The juvenile court was entitled to infer that father was at high risk to relapse, even though he claimed to be in remission, and that M.C. would be at substantial risk of suffering further beatings in father's custody. The trial court could reasonably infer M.C. was subject to a substantial risk of serious physical harm from his testimony regarding the severity of father's beating of Giovani. The court's finding that mother could not protect M.C. from father was also supported by substantial evidence.

D. Substantial Evidence Supports the Juvenile Court's Dispositional Findings

The Agency also contends the evidence was insufficient to justify removing M.C. from his parents' custody. "Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. [Citations.] The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent's past conduct as well as present circumstances. [Citation.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) We review the juvenile court's dispositional findings for substantial evidence. (Id. at pp. 915-916.)

The substantial evidence discussed above supports the court's dispositional findings. We need not address the Agency's argument further.

E. Jurisdiction Under the UCCJEA

The Agency also argues that the trial court lacked subject matter jurisdiction, under the UCCJEA, to make the jurisdictional and dispositional findings and orders.

"It is well settled in California that the UCCJEA is the exclusive method of determining subject matter jurisdiction in custody disputes involving other jurisdictions. [Citations.]" (In re Marriage of Sareen (2007) 153 Cal.App.4th 371, 376.) The UCCJEA applies to juvenile dependency proceedings. (In re Stephanie M. (1994) 7 Cal.4th 295, 310; Fam. Code, § 3402, subd. (d).) Foreign countries are treated as states under the UCCJEA. (Fam. Code, § 3405, subd. (a).) The purposes of the UCCJEA include " '[avoiding] jurisdictional competition and conflict, [promoting] interstate cooperation, [litigating] custody where child and family have closest connections, [discouraging] continuing conflict over custody, [deterring] abductions and unilateral removals of children, [avoiding] relitigation of another state's custody decisions, and [promoting] exchange of information and other mutual assistance between courts of sister states.' [Citation.]" (In re C. T. (2002) 100 Cal.App.4th 101, 106.)

" '[A] reviewing court is not bound by the trial court's findings and may independently reweigh the jurisdictional facts.' [Citation.] Subject matter jurisdiction either exists or does not exist at the time the action is commenced. [Citation.] There is no provision in the [UCCJEA] for jurisdiction by reason of presence of the parties or by stipulation or consent. [Citation]" (In re Marriage of Newsome (1998) 68 Cal.App.4th 949, 956.)

Under the UCCJEA, California courts have jurisdiction to make child custody determinations in the following circumstances: (1) when California is the "home state" of the child on the date of commencement of the proceeding; (2) there is no home state but the child and at least one parent have a "significant connection" to California and "substantial evidence" is available in California regarding the child's care, protection, training and personal relationships; (3) another state with jurisdiction has declined to exercise it; and (4) no state has jurisdiction under the above tests. (Fam. Code, § 3421, subd. (a).) In addition, Family Code section 3424, subdivision (a), provides: "A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse."

California was not M.C.'s "home state" at the beginning of these proceedings. " 'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period." (Fam. Code, § 3402, subd. (g).) " 'Commencement' means the filing of the first pleading in a proceeding." (Fam. Code, § 3402, subd. (e).) M.C. did not live in California "with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement" of the proceedings.*fn27 (Fam. Code, § 3402, subds. (e), (g).) But, even if Guatemala was M.C.'s home state, the juvenile court could still exercise emergency jurisdiction, pursuant to Family Code section 3424, subdivision (a).

An "emergency" exists when there is an immediate risk of danger if the child is returned to his or her parent. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1174.) "Aside from the necessity of protecting a child from immediate harm, presence of the child in the state is the only prerequisite. [¶] . . . In cases where the validity of the allegations are uncertain, the very possibility the allegations of immediate harm might be true is sufficient for the court to assume emergency jurisdiction in the best interests of the children. [Citation.]" (Ibid.)

At the time the juvenile court first became involved in this matter, it was alleged that father was an alcoholic who subjected M.C. to physical abuse. These allegations justified the juvenile court's initial assumption of emergency jurisdiction. The record also shows that the risk of harm creating the emergency continued to persist at the time of the contested jurisdiction/disposition hearing. Thus, the juvenile court properly continued to exercise jurisdiction. (See In re Nada R., supra, 89 Cal.App.4th at pp. 1174-1175 [emergency jurisdiction is intended to be short term, but court may continue to exercise jurisdiction so long as emergency conditions persist]; In re Angel L. (2008) 159 Cal.App.4th 1127, 1139-1140.) The court had authority to exercise jurisdiction under Family Code, section 3424, subdivision (a).

Finally, the Agency argues that "the juvenile court should have attempted to communicate with a court in Guatemala about this proceeding . . . ." Family Code, section 3424, subdivision (d), provides: "A court of this state that has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, shall immediately communicate with the other court. . . ." (Italics added.) The juvenile court did not have any duty to communicate with the Guatemalan courts because there is no evidence in the record of any court involvement in Guatemala.*fn28 (Cf. In re C. T., supra, 100 Cal.App.4th at p. 110 ["the juvenile court was obligated to contact the Arkansas court because it was asked to make a custody determination and it was aware of the existing Arkansas court custody order"].) The Agency cites no authority mandating communication with foreign courts in a case like this and we know of none.

F. The Juvenile Court's Evidentiary Rulings Do Not Necessitate Reversal

Finally, the Agency argues that the dispositional order must be reversed because the juvenile court made prejudicial evidentiary rulings at the contested hearing. We review the juvenile court's evidentiary rulings for abuse of discretion. (In re Cindy L. (1997) 17 Cal.4th 15, 35.)

1. Exclusion of Father's Statements to Monahan on Hearsay Grounds

The Agency first argues that the court abused its discretion by excluding portions of Monahan's testimony regarding her phone conversation with father. Monahan testified that she spoke with father on the phone once in January 2010. When Monahan was asked what father told her, she testified: "He did admit that he drank in the past, but that he was not currently drinking and that he and the mother would always have a home for [M.C.] if [M.C.] wanted to return home. . . . He wanted his son to come home. Said to be sure to tell his son that he loved him and to please call him. . . . And he said [M.C.] always had a place with them. He had a bed. He had a school he could go to. They would offer their home always for their son." The court sustained mother's and M.C.'s hearsay objections and struck the testimony. However, the court admitted father's statement that he "used to drink," as no one objected to its admission.

" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] . . . Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subds. (a), (b).) According to the Agency, father's statements were not hearsay because they were offered to show their effect on Monahan and not for their truth. (See People v. Jablonski (2006) 37 Cal.4th 774, 820.) Alternatively, the Agency argues that father's statements were admissible as either declarations against interest or admissions.

We need not resolve the issue. Even if the court abused its discretion by excluding father's statements, the Agency has not shown that the exclusion was prejudicial. (See Evid. Code, § 354 ["[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice"].) A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.) Even if father's statements that M.C. has a bed and "a place" with mother and father in Guatemala were admissible, such evidence could only have impacted the court's finding that "[M.C.] has been left without any provision for support," under section 300, subdivision (g). This evidence has no impact on the court's findings under section 300, subdivision (b). Thus, it is not reasonably probable that a result more favorable to the Agency would have been reached if the statements had been admitted.

2. Transcript of Detention Hearing Testimony

Next, the Agency argues that the trial court erred by forestalling its ability to cross-examine M.C. with a transcript from the detention hearing. At the detention hearing, father's counsel asked M.C. if "[his] father ever hit [him]?" M.C. responded: "The only thing is he was yelling at me and sometimes he pushed me." He said this happened when he was 14 or 13 years old. Then, M.C. added: "When I was also 16 also he was pushing me and yelling at me, and when he was drinking and he was drinking a lot."

At the jurisdiction/disposition hearing, in contrast, M.C. testified that he was "beaten" on several occasions by his father. On cross-examination, the Agency asked him about his testimony at the detention hearing. The Agency argued that it needed a transcript from the detention hearing to impeach M.C. The court denied the request, stating: "I'm not going to bifurcate this. I'm just not going to. [¶] If you thought that transcript was so important . . . you should have ordered it before."

The Agency's request was, in effect, a request for a continuance. "Continuances in juvenile dependency proceedings are disfavored . . . ." (In re David H., supra, 165 Cal.App.4th at p. 1635.) Section 352, subdivision (a), provides, in relevant part: "Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. . . . [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . ." (Italics added.) The juvenile court did not abuse its discretion. The Agency did not show good cause for its failure to obtain a copy of the detention hearing transcript before the contested jurisdiction/disposition hearing.


The juvenile court's orders are affirmed.

We concur: Simons, Acting P. J. Needham, J.

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