Opinion
B200898
7-1-2008
In re DOMINIQUE S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PHYLLIS S., Defendant and Appellant.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Senior Associate County Counsel, for Plaintiff and Respondent.
Not to be Published
Appellant Phyllis S. (mother) appeals from the jurisdiction/disposition order of the juvenile court sustaining an amended petition regarding her daughter, Dominique S. The sole issue on appeal is whether the juvenile court committed prejudicial error when it found that mother stipulated to the factual basis for the amended petition. We find no prejudicial error, and affirm the order.
BACKGROUND
Mother and Daniel S. (father) were married for more than 25 years and had four children, the youngest of whom is Dominique. At the time mother filed for divorce in June 2005, Dominique was 10 and a half years old and her next oldest sibling was 17 years old; her other two siblings were adults. By March 2007, all three of Dominiques siblings were living with father and his new wife, and mother and father were involved in a very contentious dispute in family court over custody of Dominque.
By this time, all three of Dominiques siblings were adults.
In March 2007, the Los Angeles Department of Children and Family Services (the Department) received a referral alleging that father was neglecting Dominiques medical needs by failing to administer medication and throwing away her nebulizer (a device to administer asthma medication) and her prescription eyeglasses. The Department investigated and found the allegations were unfounded. But in the course of its investigation, the Department interviewed Dominique and two of her adult siblings, all of whom asserted that mother physically abused them throughout their childhood, supposedly without fathers knowledge. In addition, Dominique said that she had been choked by mothers boyfriend in December 2006.
As a result of its investigation, the Department filed a petition under Welfare and Institutions Code section 300, alleging several counts under subdivisions (a), (b), and (j), based upon Dominiques and her siblings assertions of abuse by mother and her boyfriend. Mother denied the allegations of abuse and accused father of making false accusations against her and manipulating Dominique and her siblings because he was angry at her for divorcing him. Dominique was ordered detained from mother and released to father.
Further undesignated statutory references are to the Welfare and Institutions Code.
At the pretrial resolution conference, the court ordered an Evidence Code section 730 evaluation of the family, and also ordered the parties to mediation. The psychologist who conducted the evaluation, Dr. Crespo, noted that Dominique and her parents were involved in a "relatively severe child custody dispute" and found that Dominique, who expressed a desire to stop all visitation with mother, was "rather entrenched in her rejection of the mother." He believed that "[m]ost of [Dominiques] allegations and/or beliefs about her mother seem the result of exposure to discussions about her mother by her father and/or siblings." Although he recommended that Dominique remain placed with father, he believed that she would remain at risk of emotional abuse "given that she has been more likely than not engulfed in family dynamics unfavorable to the mother, and without clear evidence that the mother has engaged in the severe form of abuse alleged against her." Therefore, he concluded that efforts should be made to re-establish "no less than a visiting relationship" with mother. He recommended that mother have monitored visits in the office of a conjoint therapist (preferably one with expertise in working with high-conflict divorce cases), upon confirmation that mother, father, and Dominique were each participating in individual therapy.
Before the jurisdiction/disposition hearing, the parties participated in mediation, resulting in an agreement regarding the disposition of the case. The mediation agreement, which was submitted to the juvenile court, provided that the petition would be amended to include a single count under section 300, subdivision (b), alleging, "There exists a conflict between the child Dominique [S.] and mother . . . resulting in mother being unable to provide appropriate supervision for the child and the child being unwilling to have contact with mother. Said conflict and mothers inability to care for the child places the child at risk of harm." The agreement stated, "Mother will submit on the petition [as] amended. . . . Father will submit to the jurisdiction of the court." In addition, the agreement stated that the parties agreed to terminate the dependency case with a family law order that gave mother and father joint legal custody of Dominique, gave father physical custody, and provided for visitation with mother as recommended in Dr. Crespos evaluation.
At the jurisdiction/disposition hearing, mother and father each submitted waiver of rights forms. Both checked the box stating that they wished to "submit the petition on the basis of the social workers or probation officers report and other documents, if any." Each also initialed the box stating "I understand that if I plead no contest or submit the petition on the report, the court will probably find that the petition is true." The juvenile court asked each of them whether they signed and initialed the forms, whether they discussed the forms with their attorneys and understood them, whether they were giving up the rights set forth in the form, and whether they were "submitting on the form." They each responded in the affirmative.
The court then turned to the attorneys. After noting that certain documents would be kept in the court file, the court asked, "Counsel, do I have waiver and stipulation to a factual basis?" Mothers attorney and fathers attorney each said, "Yes, Your Honor." The court then sustained the petition as amended, noting that mother and father waived their constitutional rights and submitted to the factual basis for the petition. Based upon the parties agreement, the court terminated jurisdiction but stayed the order pending receipt of a family law order, and set a date for a hearing for receipt of that order and lifting of the stay.
The reporters transcript is somewhat garbled, although it seems clear that the court believed mother and father agreed there was a factual basis for the amended petition. The transcript provides: "And court finds that mother and father have knowingly and understood the waiver form of their constitutional rights and their conduct as alleged in the petition and they are submitting freely and voluntarily and understandingly and that there is a factual basis for the plea and the petition is sustained as follows."
The juvenile court subsequently received the family law order, lifted the stay, and terminated jurisdiction. Mother timely filed a notice of appeal from the jurisdiction/disposition order in which the juvenile court sustained the amended petition.
DISCUSSION
Mother contends on appeal that, although she agreed to submit the amended petition on the basis of the social workers report, she did not submit to a factual basis for the amended petition. Therefore, she argues that the juvenile court erred by sustaining the petition based upon her attorneys unauthorized statement that she did submit to a factual basis. We need not determine whether there was error, however, because any error was harmless. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377-1378 [error in accepting a waiver of rights based solely on counsels representation is subject to harmless error analysis].)
We will assume, arguendo, that mother merely submitted the petition on the basis of the social workers reports and other documents in the juvenile courts file and did not submit to the factual basis of the amended petition. We also will assume that under those circumstances the court could not accept mothers attorneys representation that mother submitted to the factual basis for the petition and was required to "weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved." (In re Richard K. (1994) 25 Cal.App.4th 580, 589, citing In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237; see also Cal. Rules of Court, rule 5.682(d) [an admission of allegations by a parent must be made personally by the parent].) Thus, we assume — but do not decide — that the court erred.
We note that the mediation agreement, which was personally signed by mother, might be interpreted as acquiescing in the basis for the courts jurisdiction (i.e., a submission to the factual basis for the amended petition), because mother not only agreed to "submit on the petition [as] amended," but she also agreed to the disposition of the dependency case.
Mother argues that the purported error was prejudicial because she disputed the allegations that she abused Dominique, yet solely on the basis of her attorneys unauthorized statement, the juvenile court "adjudicated a child abuse petition that created a permanent legal record that . . . a court found Dominique was a person described by section 300 because [mother] was unable to adequately and safely parent her daughter." Mother misconstrues the meaning of the juvenile courts ruling.
The only allegation sustained was the amended count b-1, which stated: "There exists a conflict between the child Dominique [S.] and mother . . . resulting in mother being unable to provide appropriate supervision for the child and the child being unwilling to have contact with mother. Said conflict and mothers inability to care for the child places the child at risk of harm." There was no allegation of abuse in the amended petition. Therefore, the fact that mother disputed that she ever abused Dominique is irrelevant to the harmless error analysis. There was, however, no dispute that at the time the jurisdictional finding was made, Dominique wanted to have no contact with mother. Her unwillingness to have contact with mother necessarily prevented mother from properly parenting her. Thus, even if the juvenile court erred by accepting counsels representation that mother submitted to the factual basis of the petition, the error was harmless.
We do not decide which harmless error standard applies — Chapman v. California (1967) 386 U.S. 18, or People v. Watson (1956) 46 Cal.2d 818, 836 — because the error here would be harmless under either standard.
In light of the ongoing custody dispute in the related family law case, we emphasize that the finding that Dominique was a person described by section 300 must be read in context. The juvenile court did not make any findings about mothers general ability to adequately parent her daughter. Nor did the court make any finding regarding the source of the conflict between mother and Dominique. The only finding the court made by sustaining the petition was that, because of a conflict between mother and Dominique, Dominique was unwilling to have contact with mother, resulting in mother being unable to provide adequate care for Dominique.
DISPOSITION
The jurisdiction/disposition order is affirmed.
We concur:
EPSTEIN, P. J.
MANELLA, J.