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In re M.V.

California Court of Appeals, First District, Fourth Division

May 5, 2014

In re M.V., a Person Coming Under the Juvenile Court Law. M.V., Defendant and Appellant.

Alameda County Super. Ct. No. OJ11018154 Hon. Rhonda Burgess Judge.

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COUNSEL

Linda K. Harvie, under appointment by the Court of Appeal, for Plaintiff and Appellant.

Kamala D. Harris Attorney General, Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler, Assistant Attorney General Eric. D. Share and Christina Vom Saal Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

Reardon, J.

M.V., a minor, appeals from an order of the juvenile court dismissing dependency jurisdiction under Welfare and Institutions Code section 300, [1] declaring her to be a ward of the court pursuant to section 602, and placing her in out-of-home care. Specifically, M.V. identifies numerous bases for error in the juvenile court’s decision under section 241.1 to make her a ward of the court rather than continuing her as a juvenile court dependent. M.V. also advances several reasons why the negotiated plea agreement on which her declaration of wardship was based should be set aside. We affirm.

I. BACKGROUND

On October 22, 2012, the Alameda County District Attorney’s Office (District Attorney) filed a wardship petition pursuant to section 602 alleging that M.V. (then 15 years old) had loitered in a public place with the intent to commit prostitution (Pen. Code, § 653.22) and had agreed to engage in an act of prostitution (Pen. Code, § 647, subd. (b)). The police report filed in connection with this matter described the incident upon which these allegations were based as follows: On October 19, 2012, two police officers spoke

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with an individual in the parking lot of the Islander Motel in Hayward, a venue known for prostitution activity. The man admitted that he was at the motel to meet a prostitute whom he had contacted through a magazine advertisement. He further stated that, while in the motel room with the prostitute, she received a phone call informing her that the police were in the parking lot and that he should leave. Subsequently, when M.V. exited the motel room, the man identified her as the prostitute. The police then contacted M.V., and the minor admitted to being at the motel for prostitution. Further, she identified a “friend” waiting for her nearby as her pimp. As a result, this individual—who admitted that he knew the minor—was taken into custody on a host of charges, including felony pimping (Pen. Code, § 266h, subd. (a)), and felony pandering involving a minor (Pen. Code, § 266i, subd. (b).)

At the detention hearing on October 23, 2012, the court appointed counsel for M.V., and the minor submitted to continued detention at the juvenile justice center. It was also noted that M.V. was a current juvenile court dependent and that her “dual status” would be considered in connection with the disposition in her section 602 matter. Thereafter, M.V. agreed to admit to the loitering charge in exchange for dismissal of the prostitution allegation. Jurisdiction was established on this basis on October 31, 2012, with the juvenile court finding the minor to be a person described by section 602. Since M.V. was also a dependent minor under section 300, the court ordered that a report be prepared pursuant to section 241.1 to aid in determining which status—dependent or ward—would be most appropriate for the minor going forward.

M.V.’s involvement with the juvenile court began almost a year before her section 602 petition was filed, when the Alameda County Social Services Agency (the Agency) filed a juvenile dependency petition with respect to the minor, alleging that she came within the dependency jurisdiction of the juvenile court under subdivisions (c) and (g) of section 300. Specifically, the petition averred that the then-14-year old minor had been hospitalized for psychiatric issues four times over the previous two years. Nancy V., the minor’s mother, was unwilling to provide further care or support for M.V. due to her suicidal ideation and aggressive behavior. Further, the minor’s father had a history of substance abuse and incarceration and was unavailable to care for M.V.

The minor’s relationship with her mother is a troubled one and has been variously described as “complex, ” “strained, ” “extremely volatile, ” and, by the minor’s own admission, “not the best.” Nancy V. has long-term mental health issues and has stated that she is both bipolar and has borderline personality disorder. In addition, she reports that the minor has received a

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number of mental health diagnoses, including depression, oppositional defiance, ADHD, bipolar, and borderline personality. Further, both M.V. and her mother have a history of substance abuse and treatment. M.V. has reported daily marijuana use and a history of ecstasy, alcohol, and oxycodone abuse. She has completed two inpatient drug treatment programs.

The minor’s most recent psychiatric hospitalization occurred on December 15, 2011, when she was committed pursuant to section 5150 after she attempted to stab her 26-year old stepbrother with a knife and talked about hanging herself.[2] In addition, the minor hit her mother with some wood from a broken picture frame. During this hospitalization, Nancy V. refused to participate in family meetings and visited the minor only once, on Christmas day for 15 minutes. She did not bring a gift. In addition, Nancy V. refused to pick the minor up upon her release from the hospital on December 26 and stated that she would “rather go to jail” than have the minor returned to her care.

M.V. has experienced significant trauma in her young life. When she resided with her father during her early years, he would engage in drug dealing in front of her. There are suspicions that the minor was sexually abused when she was seven years old. In addition, in March 2010, her 23-year old stepbrother—with whom she was quite close—passed away due to complications from diabetes. In approximately April 2011, M.V. was raped in an incident that was possibly related to sexual exploitation. Finally, shortly before her dependency action was filed, in November 2011, Nancy V. became engaged and moved her fiancé into the family home. The minor felt abandoned by her mother, who admitted to spending much of her time with her fiancé. In addition, the minor felt that Nancy V. had failed to protect her from an older stepbrother, who called her derogatory names and tried to seduce her. According to Nancy V., this stepbrother may also have psychiatric problems.

M.V. was arrested three times in the months prior to her detention under the dependency statutes. On both September 7 and October 5, 2011, she was arrested for misdemeanor possession of marijuana on school property. The minor successfully completed diversion with respect to each incident. Additionally, on November 2, 2011, M.V. was arrested for misdemeanor battery.

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This matter was closed with a reprimand. When she attended school, the minor had an individualized education plan (IEP) and received special education services pursuant to Assembly Bill No. 3632 (1983-1984 Reg. Sess.) for emotional disturbance. M.V. is reported to do well in school when she is present and has been described academically as “very capable of completing her work.”

The minor was detained in foster care at detention hearings on December 29 and 30, 2011. On January 18, 2012, the minor was removed from her first foster home due to solicitation activity. Thereafter, at the combined jurisdiction and disposition hearing on February 1, 2012, both parents submitted to jurisdiction on an amended petition, the minor was found to be a person described by subdivisions (c) and (g) of section 300, and the court declared M.V. to be a dependent child of the juvenile court. Reunification services were ordered for both parents.

A month later, in March 2012, M.V. received a seven-day notice that she would need to leave her second foster placement due to behavioral problems. Nancy V. advocated that M.V. be placed in a locked residential facility, despite the fact that the minor’s behavior did not warrant such a restrictive placement. Ultimately, M.V. was able to be stabilized in this foster home, and the notice was withdrawn. However, on April 23, 2012—after a family therapy session with her mother “went very bad”—the minor went AWOL from her foster placement for approximately three weeks. According to M.V., she “met a guy” who got her into prostitution. She went with him to Los Angeles and prostituted there as well. While in Los Angeles, another man told her that he would take care of her and that she should not be prostituting. She went with this man by bus to Phoenix and then to Dallas, where she was eventually located by the police. After destroying property while in juvenile hall in Texas, M.V. was detained in a psychiatric facility until her social worker flew to Dallas and retrieved her.

Upon her return to California, the minor spent several weeks at the assessment center awaiting a new foster home as her behavior problems made her difficult to place. Ultimately, she was transferred to foster care in May 2012, but was asked to leave less than a month later for stealing. M.V. entered her fourth foster home on June 15, 2012. In July 2012, at the six month review in her dependency action, reunification efforts were continued for both parents. The social worker opined that “the parents need to demonstrate that they are willing and able to improve their parent/child relationship with [M.V.] and demonstrate they can safely parent [the minor].” Progress towards reunification at that point was minimal as the father had only recently been released from jail and the minor and her mother continued to struggle and blame each other for their problems.

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M.V. went AWOL from her fourth foster placement on September 5, 2012. According to the minor’s mother, M.V. had been visiting her home a few days earlier over the Labor Day weekend when she left to go prostitute. M.V. was then placed in a group home on September 11, 2012, but left “out of impulse” on October 16, 2012. She admits that, after leaving the group home, she was staying in various hotels and prostituting herself. Finally, on October 19, 2012—as discussed in detail above—M.V. was arrested on prostitution charges in the incident that formed the basis for the wardship petition in this case.

On November 28, 2012, the juvenile court held a hearing to determine the appropriate disposition for the minor, including resolution of her dual status as both a dependent and a ward. Both the Agency and the Alameda County Probation Department (Probation) recommended in their assessment filed pursuant to section 241.1 that M.V. be adjudged a ward and that her dependency case be dismissed. Specifically, the report concluded that there was “no placement plan that would meet this minor’s needs” through the dependency system. M.V.’s dependency counsel, in contrast, submitted a letter and appeared at the hearing to argue in favor of continued dependency. The minor’s section 602 attorney and the District Attorney also argued in favor of maintaining M.V.'s section 300 status. At the conclusion of the hearing, the juvenile court stressed its concern about the minor’s “level of dangerous activity” and indicated the need for a placement “that’s more secure where we can keep her there.” The court then adopted the joint recommendation of Probation and the Agency, adjudged M.V. a juvenile court ward, dismissed the minor’s dependency action, and referred the minor to Probation for out-of-home placement. A timely notice of appeal was filed on December 13, 2012.

II. DUAL JURISDICTION ISSUES

A. Statutory Framework and Standard of Review

A child that has been abused or neglected falls within the juvenile court’s protective jurisdiction under section 300 as a “dependent” child of the court. In contrast, a juvenile court may take jurisdiction over a minor as a “ward” of the court under section 602 when the child engages in criminal behavior. (In re W.B. (2012) 55 Cal.4th 30, 42-43 [144 Cal.Rptr.3d 843, 281 P.3d 906] (W.B.); D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1123 [93 Cal.Rptr.3d 418].) As a general rule, a child who qualifies as both a dependent and ...


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