Opinion
A156309
03-30-2020
In re T.K. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.P., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J1800262, J1800263)
C.P. (Mother) appeals from a juvenile court order finding dependency jurisdiction over her daughters T.K. (born 2002) and C.J. (born 2011). (Welf. & Inst. Code, § 300.) The court entered the order after Mother, pursuant to an agreement with the Children and Family Services Bureau (bureau), pled no contest to amended jurisdictional allegations and waived her right to appeal the jurisdictional findings. Before the disposition hearing, however, Mother filed a trial brief that appeared to the juvenile court to deny the factual basis for her plea. In response, the court adopted a procedure—to which it referred as an "allocution"—to elicit Mother's confirmation that there was in truth a factual basis for her plea. Mother contends that the court violated her rights and acted in excess of its jurisdiction by applying the criminal law "allocution" procedure. (see Pen. Code, §§ 1200-1201) She has not shown, however, that any terminological misuse or procedural error caused any prejudice. We shall therefore affirm the substance of the court's order, but at the parties' joint request will remand for the limited purpose of enabling the juvenile court to address compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
All undesignated statutory citations are to the Welfare and Institutions Code.
Factual and Procedural History
In February 2018, the bureau detained T.K. (then age 15) who alleged that Mother had physically abused her and her half-sister C.J. (then age 6). Two days later, the bureau filed petitions initiating these proceedings. The bureau alleged that T.K. was subject to dependency jurisdiction under subdivision (a) of section 300 because Mother had nonaccidentally inflicted serious physical harm on her and had a history of doing so, and under subdivision (b) because T.K. was at risk of serious harm in light of allegations that, in 2006, Mother abused T.K.'s older half-sibling. The bureau alleged that C.J. was subject to jurisdiction under subdivision (b) for the same reason and under subdivision (j) based on the abuse of T.K. Mother filed a "Parental Notification of Indian Status" form stating that she may have Cherokee ancestry.
The juvenile court ordered each girl detained. At the jurisdiction hearing on July 12, 2018, the parties informed the court that they had agreed on amended jurisdictional allegations to which Mother would plead no contest in exchange for not being listed in the state Child Abuse Central Index (CACI), and to spare T.K. from having to testify. The petition was amended by hand to add allegations that, as to T.K., Mother "has, in the past, used inappropriate physical discipline on the child," warranting jurisdiction under subdivision (b), and that, as to C.J., Mother "has, in the past, used inappropriate physical discipline on the child's half-sibling," warranting jurisdiction under subdivision (j). Mother executed "Waiver of Rights" forms stating that she wished to plead no contest and waive various trial-related rights, and that she understood that the court would likely find the allegations in the amended petitions to be true.
After orally confirming Mother's knowing agreement to the waiver of rights, the court accepted her plea of no contest and her stipulation, through counsel, that a factual basis for jurisdiction existed. The court found a factual basis for the plea, found the amended jurisdictional allegations true, and set a contested disposition hearing on August 13.
Before that hearing, the bureau filed disposition reports stating incorrectly that Mother had filed ICWA forms indicating that she had no Indian ancestry. Moreover, as her attorney later represented, Mother was arrested based on the alleged abuse of T.K. In anticipation of the disposition hearing the attorney filed a brief contending that T.K. had "alleged abuse as [a] false justification to leave home," had lied about her alleged injuries, and had injured herself.
At the dispositional hearing on August 13, the court said that its "thought after reading this [brief] is to allow [Mother] to withdraw her plea" and to schedule a contested jurisdiction and disposition hearing because "this brief reads [as] really a complete denial of everything" and "sets [the case] up for an attack on a finding of a basis [for] jurisdiction." "If Mother does not want to withdraw her plea," the court stated, the court would request "more details about . . . [the] inappropriate physical discipline. I'd like to hear what that discipline is."
After a recess, Mother's counsel stated that Mother would need "a little more time to fully understand" the court's offer to let her set aside the plea and hold "a contested jurisdiction[/]dispositional trial." Counsel added that she had "tried to explain to [Mother] what [']allocution['] meant and that she would have to give a statement . . . of what precisely she meant when she agreed not to contest" the amended jurisdictional allegations.
The court directed counsel to appear a week later to advise the court whether Mother wished to withdraw her plea, and scheduled August 31 for the next hearing, which would either be a combined jurisdiction/disposition hearing, or a disposition hearing if Mother did not wish to withdraw her plea. "I'd like to know what it is that Mother is saying that she did that was inappropriate in terms of that physical discipline," the court added, "so I understand the basis for that finding and also what's appropriate in terms of a disposition."
On August 20, Mother's counsel informed the court that Mother did not wish to withdraw her no-contest plea. The court began the August 31 hearing by noting its prior concern "that the trial brief . . . really was a challenge to [the] findings of jurisdiction," but adding that it now understood "that it's not a recantation, and that Mother is going to essentially make a[n] allocution today as the basis for the court making a finding of jurisdiction." Counsel confirmed that Mother "does not want to relitigate the issue of jurisdiction" and reaffirmed her waiver of the right to appeal the findings of jurisdiction. Counsel added that her brief had taken the form it did because she wanted to advise the court of the materials gathered for Mother's defense in the "ongoing criminal investigation." The attorney stated that Mother was "prepared to make an allocution to state what it is that she did or failed to do that formed the factual basis for her plea."
Mother then read a letter to the court. The letter began by stating that she understood the court to be giving her "an opportunity to take responsibility for my role and the impact of my daughters and my great loss of each other [sic]." She discussed her regrets about the situation, her view as to why she has difficulty in parenting, her beliefs about how she could become a better parent, and her resolution to do so. The letter ended, "I want to conclude that I have inappropriately disciplined my child in the past because I disciplined her the way that I was disciplined. It was a tradition in our family, and I understand all traditions are not good." The court then asked, "And this inappropriate physical discipline that you utilized with your daughter, did that discipline place your daughter at substantial risk of harm?" and Mother responded, "Yes. Yes, ma'am."
The court summarized its view as follows: "I realize the first portion of that is not an allocution. I think it's more of, by way of context, for Mother, from her perspective. [¶] I am inclined to allow her plea to stand as she has given up her appellate right to challenge a finding of jurisdiction in this case. And that being said, in terms of disposition, any of the allegations, of course, any of the facts that are presented or found to have been presented by way of evidence here today will be considered in terms of what the appropriate disposition for these two cases is. [¶] So with those comments, we can proceed with the disposition hearing."
The court then adopted the bureau's recommendations to adjudge each child a dependent of the court, find that each child must be removed from Mother's physical custody, and order that Mother receive family-reunification services and visitation. The disposition orders do not address ICWA.
Mother timely filed a notice of appeal.
Discussion
Contrary to the contentions in Mother's opening brief, the juvenile court did not purport to apply the allocution procedure set forth in the Penal Code or its common law predecessor. To the extent the court used the term "allocution," it did so as an analogy. Terminology aside, Mother fails to show that the manner in which the court proceeded was improper or caused her prejudice. Before the court pursued its inquiry into the factual basis for Mother's plea, Mother and the bureau had negotiated amended jurisdictional allegations to which she pled no contest, Mother had executed a waiver of rights, and the court had accepted her waiver and plea, found that the plea had a factual basis, and found T.K. and C.J. subject to dependency jurisdiction. The additional steps the court took to ensure that Mother's plea was factually based did not result in any changes. The court simply allowed Mother's plea of no contest to stand. The additional inquiry had no effect except to cause an 18-day delay in the proceedings, and Mother does not suggest that the delay caused any prejudice. While she insists that the procedure "converted" her no-contest plea into an admission, the "conversion" had no effect on the outcome of the proceedings.
Mother argues that if juvenile courts routinely used the procedure employed here, it could have deleterious effects, but there is no evidence of the court "routinely employ[ing]" a procedure that "systematically contravenes" the statutory dependency scheme. (Cf. In re Andres G. (1998) 64 Cal.App.4th 476, 483.) Nothing in the record suggests that the inquiry pursued here was anything other than an appropriate one-time response to unusual circumstances.
Mother also contends that, given her then-recent arrest, the court violated her privilege against self-incrimination by eliciting an admission that she had used inappropriate discipline that created a substantial risk of physical harm, and denied her due process by failing to re-advise her of her trial-related rights before eliciting the admission. Any arguable violation of the privilege, however, had no effect, prejudicial or otherwise, on the outcome of these dependency proceedings. Should the prosecution attempt to introduce any of Mother's statements in criminal proceedings, the merits of her objection may be considered in those proceedings.
We must remand the matter, however, to enable the court to make the requisite findings regarding the bureau's compliance with ICWA. As the bureau admits, it submitted disposition reports incorrectly stating that Mother had filed an ICWA form indicating a lack of Indian ancestry, when in fact her form stated that she might have such ancestry. As a result, the juvenile court never addressed whether the bureau had complied with ICWA (which the bureau represents, on appeal, that it now has done). We agree with the parties that we must remand to allow the juvenile court to address the issue.
Disposition
The orders on appeal are reversed and remanded to the juvenile court to make the requisite findings regarding compliance with ICWA. In the event the court determines that there has been compliance with ICWA, the orders, which we affirm in all other respects, shall be reinstated. The parties shall bear their respective costs on appeal.
POLLAK, P. J. WE CONCUR: STREETER, J.
TUCHER, J.