Opinion
C093963
02-07-2022
In re Je. S. et al., Persons Coming Under the Juvenile Court Law. v. J. S., Defendant and Appellant. TRINITY COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. Nos. 20JP024A, 20JP024B, 20JP024C
Robie, J.
Appellant J. S. (father) appeals from the juvenile court's orders under Welfare and Institutions Code section 300 et seq. exercising dependency jurisdiction over his minor children, Je. S. and A. S., and removing them from his custody and care. He argues the court erred in making dispositional findings based on his submission to jurisdiction when it was unclear whether he understood the consequences of submitting on the jurisdiction report. He further contends the juvenile court erred in denying his motion to set aside his no contest plea (although father did not plead no contest but rather submitted on the jurisdiction report), as his submission was not knowingly and intelligently made.
Further undesignated statutory references are to the Welfare and Institutions Code.
We conclude that any alleged error in advising father of his rights and obtaining a waiver before ruling on the petition was harmless beyond a reasonable doubt, and that the court did not err in denying father's motion to set aside a "no contest plea" which in fact he never made. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
Family History And Child Abuse Referral
Father and stepmother (parents) are married and share one daughter together, two-year-old L. S. Father was previously married to Carmen O. (mother), and they share two children together, 14-year-old Je. S. and 12-year-old A. S (sometimes referred to as the children). Je. S. and A. S. originally resided with mother, but in December 2017 they moved in with father and stepmother.
On November 4, 2020, Je. S. e-mailed his school counselor disclosing that he had family problems at home, and he feared that stepmother was going to take him and A. S. out of on-campus learning, which "horrified" him as he did not like his home "even one bit." According to Je. S., A. S. had been spanked so bad the week before winter break that she had a black eye and stayed home from school even though she was not sick. He encouraged the counselor to check her attendance records. A review of the school records confirmed A. S. had been absent during that time period. Je. S. also said A. S. was absent for a second time this school year due to another black eye. He asked to speak with the counselor with his sister if they came to school the next day, and if they did not show up, then he asked the counselor to "please help."
The following day, the matter was referred to the Trinity County Department of Health and Human Services (Department) for further investigation. On November 6, 2020, a social worker, sheriff's deputy, and district attorney investigator interviewed Je. S. Je. S. reported that he lived with his father, stepmother, and sisters. His stepmother did not work, and his father farmed marijuana on their property. Father was often gone at work while the children stayed with stepmother; they saw him about once a week because he usually got home after they went to sleep.
Je. S. described father as a veteran who suffered from posttraumatic stress disorder (PTSD). Father sometimes punched Je. S. and A. S. and hit them with a "military" style belt. Je. S. said being hit with the belt was painful, but that it hurt more when he was punched because he could not breathe. One time, his father hit him in the chest approximately 20 times and he felt as if his lungs would fail. Father usually hit him with the belt in places that were not visible, such as his lower back, torso, or testicles, which made it difficult to urinate. The social worker observed dark spots with scabbing and bruising on Je. S.'s back, as well as scratch marks that appeared to be scars on his side. Je. S. had a long scar between his shoulder blades, which he said was from being hit with the belt; he had bled as a result of that whipping.
Two nights prior, on November 4, 2020, stepmother was upset Je. S. and A. S. had allegedly eaten a bag of chips and told father when he returned home. Father told them to turn around, and he hit Je. S. first because he was "the boy." Je. S. stated that he tried to take it, because if he flinched father would hit him more. According to Je. S., A. S. is more of a "flincher," and sometimes refuses to turn around when father orders; father beats her until she falls to the ground. On that occasion, father punched A. S. on her thighs, held her down, and hit her with the belt while A. S. screamed. On other occasions, father had hit A. S. in the face causing black eyes.
Je. S. said stepmother had hit him with a spatula before, but not that frequently, and more often mentally abused him and A. S. According to Je. S., stepmother often called them toxic and horrible people, just like their mother. Father and stepmother repeatedly called Je. S. derogatory names because he is autistic.
Je. S. further reported that stepmother made him and A. S. do excessive daily exercise as a form of punishment while she cursed at them. He showed the social worker marks on his elbows, which he said were caused by doing planks until his elbows bled. Stepmother also "fat-shame[d]" them because Je. S. and A. S. were always hungry. The children were only allowed to eat at certain times and were generally only fed lentils and rice. Sometimes they would sneak food because they were "starving"; he said he was always hungry after dinner because he did not get enough food. Unlike stepmother, Je. S. said father did not withhold food as punishment.
Je. S. feared that he and A. S. would be beaten if social workers talked with his parents. Je. S. begged to go somewhere safe if social workers planned on speaking with father and stepmother because he knew they would "deny everything," and then "beat the crap out of us" as soon as the social workers left. The children had been warned several times not to "snitch" or report the abuse to "officials."
Je. S. said that father and stepmother treat L. S. differently and do not abuse her. When asked how A. S. might respond during an interview, Je. S. said she would probably say everything was okay because she was an optimist, but that really they were afraid in their home.
After speaking with Je. S., the social worker, deputy, and investigator interviewed A. S. She described father as giving, and stepmother as open-minded and vegan, although stepmother could sometimes exaggerate things. A. S. confirmed that stepmother made them do planks and pushups as punishment. She said two years ago she was spanked with a belt because she pulled a knife on her brother. She had also been made to kneel on rice as a form of punishment, although she could not remember the reason.
When asked about the chip incident that preceded Je. S.'s e-mail to his school counselor, A. S. said stepmother accused her and Je. S. of eating the chips, and stepmother told father when he got home. Father was angry, and he smacked them. Although father supposedly hit A. S. on her thighs and hands, she fell down because she was scared, and father simply walked away. She was unsure whether she had any bruising on her thighs but did not want to show the social worker her legs.
According to A. S., it was later determined that their little sister, L. S., took the chips, so father and stepmother were nicer to Je. S. and A. S. Because the parents felt they had hit Je. S. the hardest, he got to pick what kind of enchilada he wanted.
A. S. initially denied being hit other times, but later admitted it happened about once a month. On one occasion, A. S. got scared when she was getting in trouble, and she fell and hit her eye on a cabinet, resulting in a black eye. She denied father pushed her, and said he only picked her up "kind of hard" after she fell. Father did not allow her to go to school for four days because he did not want her to "get taken away." She got a black eye on another occasion when father repeatedly hit her hands and she flinched because she thought he was going to hit her face; father "accidentally" hit her in her eye but asked if she was okay. A. S. said she believed she deserved every spanking she got, even if she did not know why she was getting it.
A. S. said she was grateful that she had not been put in a cage or microwave like some other children she had seen on the news, and that she did not want to be an orphan or go into foster care because she had heard the children bully one another and that staff were mean. After the social worker explained that foster care was different than she had been told, and that she was really worried about A. S.'s safety in her home, A.S. began to cry.
When the social worker told A. S. that she was going to visit her parents that day, A. S. said she would get in trouble and asked the social worker not to disclose what she had said during the interview. A. S. stated that her stepmother told her that if the police ever came to their house, the parents would tell them the children were liars, thieves, and bad kids. A. S. said she did not want her parents to get mad, that everything was her and Je. S.'s fault, and that they deserved what they got. She also did not want her younger sister to be taken from her parents as they would never like A. S. again.
The social worker, deputy, and investigator visited the children's home later that day. Stepmother laughed when they told her about the child abuse referral they received. When father arrived home, he said they never let the children feel hungry, although they did not let them eat whatever they wanted. According to father, mother "dumped" Je. S. and A. S. with him three years ago, and they were obese and prediabetic. He changed their diet and made them exercise to get healthier.
Father denied that stepmother made the children exercise excessively, although he acknowledged that he only saw them about once a week before they went to bed and that the rest of the time they were alone with stepmother. He said he did not know why the children would make such claims against stepmother, but that the children were liars and manipulative and he blamed their mother for the way she had raised them. He claimed the children were lazy and did not want to help with chores.
When they did not listen, father said he looked them in the eye and discussed how to make better decisions. He admitted that when conversations did not work, he spanked the children with his hands and a belt, which father claimed was legal in Georgia where the family had previously resided. When the social worker explained that it was legal to spank children in California but that it was not legal to leave marks and bruising on a child, father said he did not know that because it was legal in Georgia. Father then admitted that he had hit the children and left marks on them about 10 times.
When asked about A. S.'s black eyes, father explained that he tried to spank her but she flinched and fell into a table. Father vaguely remembered hitting A. S. on a different occasion on her hands or arm area when she flinched to cover her face and he hit her on the face, accidentally giving her a black eye.
Stepmother denied mentally abusing the children by berating them and calling them derogatory names. She also denied ever telling the children that she would never forgive them if L. S. got taken away. Father accused the social worker of being rude and "judgey," and unnecessarily attacking him and stepmother. Nevertheless, father said they would not be so strict with food and the social worker observed adequate food supplies in the home.
The social worker advised the parents that the children were scared and refused to return home for fear of being beaten. A protective warrant was issued and Je. S. and A. S. were removed from the parents' home.
II
Dependency Petition And Detention
On November 10, 2020, the Department filed a dependency petition under section 300 on behalf of Je. S., A. S., and L. S. The petition alleged that Je. S. and A. S. had suffered, or there was a substantial risk they would suffer, serious physical harm inflicted nonaccidentally because father had physically abused Je. S. and A. S. by spanking, punching, slapping, and hitting them with a belt. (§ 300, subd. (a).) It further alleged that Je. S. and A. S. were suffering, or at a substantial risk of suffering, serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward themselves or others as a result of their parents' conduct, including father's physical abuse and stepmother's berating, cursing, name calling, and her use of excessive discipline. (§ 300, subd. (c).) As to L. S., it was alleged that there was a substantial risk she would be abused in the same manner as her siblings. (§ 300, subd. (j).)
The Department prepared a detention report and, based on the above described events, recommended that Je. S. and A. S. be detained and remain in out-of-home placement pending a jurisdictional hearing. The Department recommended that L. S. remain in the care of her parents.
Attached to the detention report were recommended findings and orders that included the following rights advisements for the parents: (1) that they had the right to be represented by counsel at every stage of the proceedings; (2) the right to be informed by the court of the contents of the petition, the nature and possible consequences of juvenile court proceedings, the reasons for the initial detention and the purpose and scope of the detention hearing if the child was detained; (3) the right to have a child who was detained immediately returned to the home if the petition was not sustained; (4) that if the petition was sustained and the child was removed from the care of the parent, the time for services would commence on the date the petition was sustained or 60 days from the date of the initial removal, whichever was earlier; (5) that the time for services would not exceed 12 months for a child aged three years or over at the time of the initial removal; (6) that the time for services would not exceed six months for a child under the age of three years at the time of the initial removal or for the member of a sibling group that includes such a child if the parent fails to participate regularly and make substantive progress in any court-ordered treatment program; (7) the right to a hearing by the court on the issues presented by the petition; and (8) the right to assert the privilege against self-incrimination, to confront and cross-examine the persons who prepared reports or documents submitted to the court by the petitioner and the witnesses called to testify against the parent, to subpoena witnesses, and to present evidence on his or her own behalf.
At a detention hearing on November 12, 2020, the juvenile court explained the petition allegations to father and stepmother, who were present in court. After advising them of their right to counsel, the court appointed separate counsel for father and stepmother. Father's counsel was not present, so at the court's behest, stepmother's counsel agreed to specially appear for father's counsel. The court explained the parents' rights during the dependency proceedings, including that at a subsequent jurisdictional hearing they had the right to counsel, the right to remain silent, and the right to confront and cross-examine witnesses.
After reviewing the detention report, stepmother's counsel, on behalf of stepmother and father, waived a formal reading and further advisement of rights, and submitted on the report. After considering and admitting the detention report into evidence, the court found a prima facie showing that the children came within section 300 and that they could not safely be maintained in their home. The court detained the children in out-of-home placement, ordered supervised visitation for father, and set the matter for a jurisdictional hearing on December 3, 2020.
III
Jurisdiction Hearing
At the jurisdiction hearing on December 3, 2020, father was represented by his appointed counsel, Kenneth Miller. Father's counsel appeared remotely via Zoom, while father was present in the courtroom. Stepmother and her appointed counsel, Larry Olsen, were also present in the courtroom, and mother appeared for the first time with her appointed counsel.
The Department submitted a jurisdiction report recommending that the court sustain the petition, declare the children dependents, and maintain them in their current out-of-home placement. The report recounted the circumstances of the initial referral, the above described interviews with the children, and the interview with the father and stepmother at their home. It also noted that on November 18, 2020, A. S. had disclosed to her resource parent that father had hit her in the face and Je. S. on his body one time at a laundromat. A witness called police, and when officers arrived Je. S. lied to protect father. A. S. said no officer questioned her about the incident that day. The social worker was unsuccessful locating the 911 call, but was inquiring whether any deputies in the area recalled the incident.
Since being detained, the children expressed contentment with their out-of-home placement and refused visitation with either parent. A. S., in particular, hid in her room and the majority of the time refused contact with father. The resource parent also noted that the children had stolen food; she found a plethora of food items stashed in various places in their room. She did not say anything to them as she wanted them to feel secure that they had access to food.
The parents, according to the jurisdiction report, were frustrated with raising teenagers and were open to Department assistance.
Like with the detention report, the jurisdiction report attached proposed findings and orders. The proposed jurisdictional findings and orders contained the same rights advisement that the parents had previously received in the detention report and at the detention hearing. Father's counsel acknowledged he received a copy of the jurisdiction report before the hearing.
The Department and the children's appointed counsel submitted on the jurisdiction report and recommendation. The children's counsel noted that the jurisdiction report recited a lot of troubling facts regarding the parents' treatment of Je. S. and A. S., and that father seemed to equivocate regarding what he did or did not do, claiming the children were lying about what they had reported to the Department. Counsel took the position that it was not lawful in California to discipline children with a belt, whether it left marks or not, and that whether such conduct was lawful in Georgia was irrelevant since the family currently lived in California. He urged the parents to appreciate the opportunity to deal with the allegations in the dependency context rather than in a criminal proceeding.
Father's counsel informed the court that prior to the hearing he had faxed stepmother's counsel a waiver of rights form (JV-190 form) for father's completion if father wished to submit on the jurisdiction report at the hearing. Stepmother's counsel noted that he had the form and was in the process of having father complete it. When the court asked if stepmother's counsel needed more time to complete the form, he responded, "Well, we will, but we can even do it subsequent, if you wish to go forward. It's my understanding that [father] and [stepmother] intend to sign said documents." Father did not object to this representation.
Stepmother's counsel then informed the court that stepmother was willing to submit on the report because Je. S. and A. S. were simply adolescents going through some troubling times, and she and father had used discipline they felt was appropriate. Counsel then stated: "Based upon the fact that there are no criminal charges or anything of that sort, they're willing to submit on this report and go through the family counseling that is being offered through [the Department]. And if there is some excess or whatever, they are willing to listen and abide by whatever suggestions [the Department is] offering them, and correct anything that may have been seen by others as excessive." "Echoing [stepmother's counsel's] comments," father's counsel then stated, "we'll be submitting on the report."
The court admitted the jurisdiction report into evidence. It then noted that it had informed and advised mother, father, and stepmother of their rights, including the right to be present and represented by counsel at every stage of the dependency proceedings, subject to the court's right to seek reimbursement. The court further stated that "they [had] previously been informed of the contents of the petition, the possible consequences, the reasons for the initial detention, and the purpose and scope of the detention hearing, and the possible consequences of removal, as well as the timeline for reunification services, the right to a hearing on the issues presented by the petition, as well as the right to assert the privilege against self-incrimination, to confront and cross-examine the persons who prepared the reports, any documents submitted to the [c]ourt by the petitioner, and any witnesses called to testify against them, as well as the right to subpoena witnesses and present evidence on his or her own behalf." After admonishing the parties of their rights, and having considered the jurisdiction report, the court found by a preponderance of the evidence that the petition allegations were true.
The court asked that stepmother's counsel file the JV-190 forms for father and stepmother by the close of business. As directed, counsel filed the signed forms the same day as the hearing.
Father executed three separate JV-190 forms, one for each child. Father checked boxes on the forms indicating that he had read and understood the petition, and that he wished to "submit the petition on the basis of the social worker's or probation officer's report and other documents, if any." Father initialed multiple boxes stating that by submitting the petition on the report he was giving up the right to a trial or hearing, the right to see and hear witnesses who testify, the right to cross-examine witnesses, the social worker, and the persons whose statements are contained in the report, the right to testify on his own behalf and to present his own evidence and witnesses, the right to use the court's authority to subpoena witnesses and evidence, and any privilege against self-incrimination. Father further initialed boxes stating that he understood that if he "submit[ted] the petition on the report, the court [would] probably find that the petition is true," and that if the petition was found true and the child declared a dependent of the court, the court might assume custody of the child, and under certain circumstances, might deny reunification services.
The court set the matter for disposition on January 14, 2021.
IV
Disposition And Motion To Set Aside Jurisdictional Findings
The Department filed a disposition report recommending that Je. S. and A. S. be declared dependents of the court, that jurisdiction be terminated, and that full legal and physical custody of the children be awarded to mother as a nonoffending parent.
According to the report, Je. S. and A. S. could not be safely returned to father at that time. Father had only minimally cooperated with the Department, and still maintained that he had not done anything physically or emotionally abusive to the children. Although father and stepmother had stated they were willing to attend mental health services, neither attended a mental health assessment. Father was unwilling to sign a release of information for the Department to contact his current counselor through the Department of Veterans Affairs, stating his PTSD was irrelevant to the dependency proceedings.
In father's view, all of the abuse allegations stemmed from Je. S. not wanting to exercise and wanting to eat whatever he wanted. However, both Je. S. and A. S. had met with a licensed family therapist and they reported consistent accounts of the physical and emotional abuse that occurred in father's home.
While father admitted he spanked the children, he maintained the spankings had not been excessive or left marks, which contradicted his initial statement to the social worker in November 2020 that he had hit the children and left a mark on them about 10 times. And although father insisted that the children were never denied food, their care provider reported that the children ate large quantities of food, hoarded food, and even got up during the night to get food to eat and keep in their room. Father dismissed this concern even though the social worker explained that food hoarding was not a general response in children and indicated a lack of trust that their basic needs would be met.
Je. S. did not want to visit father and would only briefly say "hi" during Zoom video chats. Je. S. expressed his desire to return to mother's care and did not want to live with father. A. S. showed a greater willingness to visit with father at that time, although there had only been one in-person visit with father and stepmother, and Zoom video chats and calls had been inconsistent. A. S. wished to live with mother, but said she would be okay returning to father's home.
Shortly before the disposition hearing, father and stepmother each substituted private counsel to represent them in the dependency proceedings. Father's new counsel, Vincent Davis, did not appear at the scheduled disposition hearing for reasons that are not clear from the record; stepmother's new counsel, Arthur LaCilento, appeared on her behalf. The court continued the disposition hearing to January 28, 2021, in light of the substitution of attorney, and stepmother's counsel agreed to notify father's counsel of the continued disposition hearing date. In the interim, the court granted the Department's request to return Je. S. and A. S. to mother's care.
At the continued disposition hearing on January 28, 2021, father's retained counsel was unaware the Department had filed the disposition report. After receiving a copy of the report during the hearing and discussing it with father, father's counsel first informed the court that father would submit on the Department's recommendation, even though he did not agree with it. Counsel then stated that father alleged he signed the JV-190 waiver of rights form based on conversations with stepmother's appointed counsel and not his own appointed counsel. Father claimed that the information given to him was incorrect because the court ended up sustaining the petition. Father's counsel intimated that father's prior appointed counsel may have provided ineffective assistance and asked to continue the disposition hearing to allow him the opportunity to file a written motion to "set aside [the] plea that he entered into." Over the Department's objection, the court granted the request and continued the matter for a combined hearing on the motion to set aside the jurisdictional findings as to father and for disposition.
Father's counsel subsequently filed a written motion with a supporting declaration from father, requesting that the court set aside his "plea of no contest" to the petition based on the alleged ineffective assistance of his prior appointed counsel, Mr. Miller. Father claimed he had unsuccessfully tried to contact Miller several times prior to the jurisdiction hearing, and that he received legal advice from stepmother's appointed counsel, Mr. Olsen, that they should sign a no contest plea since it did not mean they were guilty of the allegations and" 'to go with the flow.'" Prior to signing the "No Contest Plea," father asked Olsen if this would mean they were guilty of the accusations, and Olsen stated," 'No.'" Father also claimed he asked Olsen if he would lose any of his constitutional rights and Olsen again said," 'No.'" Father argued that his first interaction with Miller was at the December 3, 2020 jurisdiction hearing, where counsel supposedly stated to the court that he had advised and explained to father what a no contest plea meant, which father contended was a "blatant lie" since that was the first time father had ever seen Miller or heard his voice.
In addition to his declaration, father attached an e-mail from mother written in Spanish stating that Je. S. had lied about or exaggerated the allegations in the jurisdiction report. A copy of the e-mail translated into English was also attached.
The e-mail was translated by Yazmin Morataya. Nothing in the record shows Morataya is a certified interpreter.
Briefly summarized, the e-mail recounts how mother asked A. S. to read the jurisdiction report and explain the allegations to her, that A. S. did so and then characterized some of Je. S.'s statements as exaggerations. For example, A. S. said that Je. S. alleged he was hit so hard he bled and that father had also hit him on his private parts making it difficult to urinate. A. S. told her mother that Je. S. was exaggerating and that she never saw Je. S. bleed when he was beaten. If Je. S. was hit in the private parts, A. S. claimed it was by accident. While A. S. disputed some of the specific details of Je. S.'s account of the abuse, she also confirmed that the children were hit; they essentially were fed lentils and rice; that they were forced to do exercise as punishment, although not for as long as Je. S. reported; that they had to do planks, although A. S. never saw Je. S. bleed as a result; that stepmother had hit them with a spatula; and that she had received two black eyes, one of which was the result of falling after father tried to hit her.
The Department filed a written response and objection to father's motion. The Department argued it was procedurally improper for father to challenge jurisdictional findings via his motion; that father did not enter a no contest plea but instead submitted on the petition based on the evidence before the court, including the social worker's jurisdiction report; and that father failed to prove Miller's representation was ineffective, or, even if so, that he suffered any prejudice.
At a hearing on March 4, 2021, the juvenile court denied father's motion, finding it procedurally improper. The court then proceeded to disposition. The Department submitted on the disposition report without calling any further witnesses. Father's counsel disagreed with the recommendation to the extent it was based on the jurisdictional findings, but did not otherwise object to the children living with mother out of state.
After considering the disposition report, as well as the arguments of counsel, the court found by clear and convincing evidence under section 361, subdivisions (c)(1) and (c)(3) that circumstances warranted removing the children from father's care and custody. The court granted physical and legal custody of the children to mother and terminated the dependency case. Father timely appealed.
DISCUSSION
Father contends the juvenile court erred in making its dispositional findings because he was not properly advised about the consequences of submitting on the petition at the jurisdiction hearing as required by rule 5.682 of the California Rules of Court. We find any alleged error on this record harmless.
Further undesignated rule references are to the California Rules of Court.
"A dependency proceeding is civil in nature and is designed not to prosecute the parent, but to protect the child." (In re Monique T. (1992) 2 Cal.App.4th 1372, 1376-1377.) Because a parent's fundamental right to care for and have custody of his or her child is implicated during a dependency proceeding, such rights may not be interfered with without due process of law. (Ibid.) "Among the essential ingredients of due process are the right to a trial on the issues raised by the petition, the right to confront and cross-examine witnesses, and to compel the attendance of witnesses." (Id. at p. 1377.)
The Judicial Council has adopted several rules addressing the nature and waiver of a parent's rights during dependency proceedings. Rule 5.534, for example, requires a court to advise a parent in section 300 cases of (1) the right to assert the privilege against self-incrimination, (2) the right to confront and cross-examine the persons who prepared reports or documents submitted to the court by the petitioner and the witnesses called to testify at the hearing, (3) the right to use the process of the court to bring in witnesses, and (4) the right to present evidence to the court. (Rule 5.534(g)(1)(A)-(D).)
After giving the advisement required by rule 5.534, the court must advise a parent of the following rights: [¶] "(1) The right to a hearing by the court on the issues raised by the petition; and [¶] (2) The right, if the child has been removed, to have the child returned to the parent or guardian within two working days after a finding by the court that the child does not come within the jurisdiction of the juvenile court under section 300, unless the parent or guardian and the child welfare agency agree that the child will be released on a later date." (Rule 5.682(a)(1)-(2).)
A parent may elect to admit the petition allegations or plead no contest and waive further jurisdictional hearing. (Rule 5.682(d).) A parent may also "elect to submit the jurisdictional determination to the court based on the information provided to the court and choose whether to waive further jurisdictional hearing." (Ibid.) If a parent "submits to the jurisdictional determination in writing, Waiver of Rights -- Juvenile Dependency (form JV-190) must be completed by the parent or guardian and counsel and submitted to the court." (Ibid.)
After submission on the petition, the court must make certain findings noted in the court's order, including that the parent has knowingly and intelligently waived the right to a trial on the issues by the court, the right to assert the privilege against self-incrimination, and the right to confront and to cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the parent's behalf. (Rule 5.682(e)(3).) The court must also find that the parent understands the nature of the conduct alleged in the petition and the possible consequences of submission, that the submission by the parent is freely and voluntarily made, and whether the allegations of the petition as submitted are true as alleged. (Rule 5.682(e)(4)-(5), (8).)
In this case, father's appointed counsel, who appeared at the jurisdiction hearing remotely via Zoom, represented to the court that he had received a copy of the jurisdiction report and that father intended to submit on the petition. Father did not object to his counsel's representation when made. Nor did father object or otherwise speak up when stepmother's counsel informed the court that it was his understanding that both father and stepmother intended to sign JV-190 waiver of rights forms and submit on the petition. Father's counsel informed the court during the hearing that he had faxed stepmother's counsel a partially completed JV-190 form for father to sign "if that's what he wishes to do, as far as submitting on the jurisdiction report." Stepmother's counsel confirmed he had received the document and was in the process of having father complete it.
Father, however, did not actually execute and submit the JV-190 form, which clearly delineated the rights he was waiving and the consequences of submitting on the petition without a contested jurisdictional hearing, before the jurisdiction hearing concluded. Although the court asked stepmother's counsel if he needed some time to complete the JV-190 forms with stepmother and father, counsel stated that the court could proceed with the hearing and they would submit the forms later given his understanding that both father and stepmother intended to sign the documents. That appears to be the course the court followed, as it later requested that counsel submit the JV-190 forms by the close of business that day.
After each of the parties submitted on the petition, but before ruling on it, the court found that father had "previously been informed of the contents of the petition, the possible consequences, the reasons for the initial detention, and the purpose and scope of the detention hearing, and the possible consequences of removal, as well as the timeline for reunification services, the right to a hearing on the issues presented by the petition, as well as the right to assert the privilege against self-incrimination, to confront and cross-examine the persons who prepared the reports, any documents submitted to the [c]ourt by the petitioner, and any witnesses called to testify against them, as well as the right to subpoena witnesses and present evidence on his or her own behalf." The court then sustained the petition based on the jurisdiction report.
Thus, while the record shows the court did recite the rights to which father was entitled prior to sustaining the petition, it does not appear that the court expressly advised father regarding his rights at the jurisdiction hearing or explicitly obtained a waiver of such rights before accepting his submission. This was arguably error.
Nevertheless, even if the above sequence of events did not strictly comport with rule 5.682's requirements, we conclude any error was harmless beyond a reasonable doubt because father had repeatedly been advised of his rights throughout the dependency process and the evidence overwhelmingly supported jurisdiction. (In re S.N. (2016) 2 Cal.App.5th 665, 671-673 [juvenile court's failure to obtain explicit waiver of rights at jurisdiction hearing was harmless error given overwhelming evidence supporting petition allegations]; In re Monique T., supra, 2 Cal.App.4th at p. 1377 [failure to properly advise parent of rights and obtain waiver at jurisdictional hearing subject to harmless error analysis]; Chapman v. California (1967) 386 U.S. 18, 24 [error of constitutional dimension is reviewed under stricter beyond a reasonable doubt standard].)
As noted above, the court first advised father of his rights at the detention hearing, including the right to counsel, the right to remain silent, and the right to confront and cross-examine witnesses. The court explained the serious nature of the petition allegations, the limited time frames for services, and the possibility that his parental rights could be terminated as a result of the proceedings. The court further explained that father had the same trial rights at the jurisdiction hearing, which the court described as "an evidentiary hearing to determine if there's evidence for this case to go forward."
The detention report included proposed findings and orders that advised father of his due process rights during the dependency proceeding -- the same rights covered by the JV-190 forms that father initialed, signed, and submitted to the court the day of the jurisdiction hearing. Thus, father had previously been advised of his rights at the detention hearing, which occurred less than a month before the jurisdiction hearing.
The jurisdiction report, moreover, included proposed findings and orders that contained an identical rights advisement and admonishment regarding the potential consequences of waiving his rights to a contested jurisdictional hearing and submitting on the petition. The report was served on the parties prior to the jurisdiction hearing. This likewise shows that father was made aware of his rights and the consequences of submitting on the petition prior to the jurisdiction hearing.
Given the detention report and its attached proposed findings and the jurisdiction report and its attached proposed findings, and in light of the court's rights advisement during the detention hearing as well as the court's comments at the jurisdiction hearing that again identified father's rights during the dependency process, we are convinced beyond a reasonable doubt that any purported irregularity in the sequence of filling out the JV-190 form with the help of stepmother's counsel by the close of business on the date of the jurisdiction hearing was harmless. The record shows father's submission on the petition was made after being advised of his rights during the dependency hearings and in several reports the Department filed before the detention and jurisdiction hearings.
In any event, we are convinced beyond a reasonable doubt that the juvenile court would have sustained the petition allegations even if father had not submitted on the petition. At the jurisdiction hearing, the court acknowledged that "it's the parents' position that this involved appropriate discipline of teenagers." But, as the children's counsel had previously argued and the court apparently agreed, "the discipline that was described in the reports would be excessive under California standards, and it could possibly rise to the level of criminal behavior."
The court's conclusion is overwhelmingly supported by the record. Both Je. S. and A. S. told the social worker that father had hit them with a belt and had hit and left marks on them on several occasions. Je. S. showed the social worker scars and scratches on his torso, back, and side that were consistent with his statements that his father hit him on areas of his body that could not be seen. Although A. S. said she was not sure she had marks on her thighs from where her father repeatedly hit her on November 4, 2020, for supposedly eating a bag of chips, she would not show the social worker her legs. A reasonable inference from this evidence is that A. S. also had bruising and marks from the beating.
School records confirmed A. S.'s absences from school, which tended to support Je. S.'s statement to his school counselor and the social worker that A. S. had missed school for several days as a result of a black eye she received during one episode of abuse. A. S. also acknowledged receiving at least two black eyes while father disciplined her.
Besides the children's statements and physical marks and scars, father himself told the social worker that he spanked his children with his hand and with a belt, which confirmed what the children had already reported. He also admitted that he had hit his children and left a mark on them about 10 times, which again supported the children's allegations. Father agreed he would not do that to another adult, and claimed that he was unaware he could not leave marks on his children when hitting them because it was purportedly legal to do so in Georgia where the family had previously lived.
To the extent A. S. later characterized some of Je. S.'s statements to the social worker as exaggerations or father's hitting as "accidental," as evidenced by the transcribed e-mail from mother attached to father's motion to set aside his no contest plea, she also reaffirmed that father did in fact hit them, that they were forced to do exercise as punishment, and that she had received two black eyes from episodes of father disciplining her. Given the low preponderance of the evidence burden of proof at the jurisdiction hearing (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248 [the standard burden of proof applicable to jurisdictional findings in juvenile dependency cases is preponderance of the evidence]), we are convinced beyond a reasonable doubt that the facts before the juvenile court were sufficient to justify a jurisdictional finding even considering A. S.'s supposed subsequent statements to her mother.
Father did not actually plead no contest, but rather submitted on the petition.
Father contends the court erred by denying his motion to set aside his "no contest plea." He argues the court should have exercised its authority under section 385 to set aside his submission on jurisdiction, as admittedly father did not plead no contest to the petition. We disagree.
Section 385 provides, "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We find no such abuse of discretion here.
Father moved to set aside his "no contest plea" to the petition, but he never actually pled no contest. Rather, father submitted on the petition. Thus, the juvenile court did not abuse its discretion in denying father's procedurally improper motion.
Furthermore, submission on the report did not concede the facts contained in the petition or the social worker's report. In sustaining the petition, the court simply rejected father's position that he appropriately disciplined his children as opposed to physically abused them. Thus, even ignoring the procedural impropriety of defendant's motion, we cannot say the court abused its discretion in refusing to set aside its jurisdictional findings under section 385.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: Raye, P. J., Hull, J.