Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK67910, D. Zeke Zeidler, Judge. Reversed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Denise Ambrosio, Deputy County Counsel, for Plaintiff and Respondent.
Eric Esteban, Children’s Law Center of Los Angeles, for minors.
RUBIN, J.
Mother Karina B. appeals from the dependency court’s dispositional finding that she failed to protect her three children and the court’s dependency judgment as to two of the three. Respondent Department of Children and Family Services stipulates to reversal of the court’s finding and judgment.
FACTS AND PROCEEDINGS
In August 2006, Karina (mother) and Patrick were living with her two children from prior relationships: 10 year old Jose and 8 year old N. At the time, mother was pregnant with Patrick’s child, Abdul. The family came to the attention of respondent DCFS that month when a sheriff’s deputy responding to a child abuse report discovered that Patrick had physically abused Jose, for which Patrick was arrested and eventually imprisoned.
A few days after the incident involving the deputy, mother explained to a social worker from DCFS that she had been in the kitchen cooking when she heard Patrick in the living room disciplining Jose for lying. Patrick threatened to whip Jose if Jose did not tell the truth. He swatted Jose three or four times with a belt, telling Jose “he was gonna give him another chance to tell the truth.” Mother then heard Patrick “whipping [Jose] again. Jose started screaming really loud. I have never heard him scream like this before. I came into the living room and told him to stop hitting him. I immediately told [Patrick] that the first swats were okay, but after that he should have talked to Jose and explained why he was getting a spanking. . . . I explained to [Patrick] what was wrong for this type of discipline . . . .” When asked to explain the bruises on Jose’s face, mother said Jose must have “moved while he was being spanked.” N. confirmed to the social worker that mother had been in the kitchen when Patrick started hitting Jose with the belt, but came out of the kitchen when Jose started screaming.
In September 2006, Patrick informed the social worker that he was now living with his sister because of what had happened. Mother and Patrick agreed to complete parenting classes. In December 2006, mother told the social worker that Patrick had moved out of their home and she had not seen him for several days. By February 2007, Patrick had turned himself into police after initially skipping bail on the child endangerment charge and was sentenced to prison for four years for felony child abuse. Mother, meanwhile, had been compliant with the voluntary case plan.
Based on Patrick’s refusal to sign the case plan when the social worker visited him in jail in March 2007, the department concluded the children were at risk and no means existed to protect them other than removal from the parents’ custody. In April 2007, the department filed a petition alleging all three children were dependent children pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b) and (j). The detention report recommended that the children be detained from Patrick and placed in the home of mother. At the detention hearing, the dependency court found a prima facie case had been made that the children were dependent children and “remaining in the home of the father is contrary to their welfare.” It ordered the children detained and released to mother under department supervision.
All further undesignated statutory references are to the Welfare and Institutions Code.
A contested adjudication and dispositional hearing took place in October 2007. Although the department recommended that the court sustain the petition because mother had been aware of what was happening to the children but did nothing to stop it, the department also requested that the court immediately thereafter terminate its jurisdiction by issuing a family law order providing mother with the children’s sole legal and physical custody. Mother argued, on the other hand, that the evidence was insufficient to support a true finding as to her because it was undisputed that Patrick was out of the home and she would not let him return, she had complied with the department’s voluntary case plan for her, and she no longer used physical discipline. Mother requested that she therefore be stricken from each of the petition’s counts.
The dependency court sustained the petition as to all three children and placed them with mother under department supervision. The court additionally placed sole legal and physical custody of Abdul with mother while granting Patrick weekly supervised visits with his child. The court then terminated its jurisdiction as to all three children. Mother’s appeal followed.
DISCUSSION
Mother filed her opening brief in January 2008. The department did not file a respondent’s brief. Instead, in May 2008, the department, mother, and the minors filed a joint application and stipulation requesting reversal of the court’s jurisdictional findings and orders. They jointly request that this court vacate the dependency court’s findings that mother failed to protect the three children from Patrick; in doing so, the parties acknowledge the department’s disavowal of the allegation in its section 300 petition that mother “knew that [Patrick] was using inappropriate discipline and failed to take action to protect the children.” In addition, the parties jointly request a stipulated reversal of the court’s judgment of dependency as to the two older children – Jose and N. – while leaving the dependency judgment in place for Abdul, mother’s child by Patrick.
The parties’ requests are well-taken. A finding that dependency jurisdiction exists requires at the time of the dependency hearing that a child currently be at risk of harm. (In re Alysha S. (1996) 51 Cal.App.4th 393, 398-399; In re Rocco M. (1991) 1 Cal.App.4th 814, 823-824.) Here, mother had fully complied with the department’s voluntary family maintenance agreement for 14 months after the incident where Patrick inappropriately disciplined Jose. Reflecting the department’s confidence that mother posed no risk to the children, the department had consistently recommended that upon assuming jurisdiction the court place the children with mother and then terminate jurisdiction.
Code of Civil Procedure section 128, subdivisions (a)(8)(A) and (B) govern stipulated reversals of judgment. The statute provides:
“An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.”
We find the statute’s criteria are satisfied here. (See In re Rashad H. (2000) 78 Cal.App.4th 376 [applying section 128, subd. (a)(8)(A) & (B) to stipulated reversal in dependency matter].) First, no injury to nonparties or the public will arise from a stipulated reversal of the findings as to mother. She was a non-offending parent, has fully complied with the department’s voluntary case plan, and has not been viewed by the department as posing a risk of harm to her children. In expediting a speedy end to these proceedings, a stipulated reversal serves, rather than injures, the public’s interest. (Rashad, at pp. 380-381 [quick resolution of dependency matters serves public].) Second, a stipulated reversal will advance the public’s trust and confidence in the fairness and reliability of dependency proceedings not to wantonly remove children from responsible parents. (Id. at p. 381 [speedy correction of legal mistakes serves public].) And finally, a stipulated reversal in this case poses little risk of discouraging pre-adjudication dispositions and settlements in dependency proceedings involving other families. (Id. at p. 381.)
DISPOSITION
The court’s jurisdictional findings as to mother are vacated, and the judgment of dependency as to Jose and N. is reversed.
WE CONCUR: COOPER, P. J. FLIER, J.