Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. Nos. 2281, 2282, 2283 & 2284-dep.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This is an appeal from the juvenile court’s jurisdictional and dispositional orders in a juvenile dependency case involving four minors: Marc A., Lucas A., Erica A., and Frank A. (collectively, the minors). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 3, 2006, respondent Sonoma County Human Services Department (the County) filed a petition under Welfare and Institutions Code section 300 alleging that (1) Marc, 17 years old; Lucas, 17 years old; Frank, 14 years old; and Erica, 10 years old; had suffered or were at substantial risk of suffering serious physical harm inflicted nonaccidentally by their adoptive mother, appellant O.A. (§ 300, subd. (a)); and (2) Marc, Lucas and Frank had suffered or were at substantial risk of suffering serious emotional damage, as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of appellant’s conduct (id., subd. (c)). The petition described a pattern by appellant of excessive corporal punishment and threats to physically harm the minors and their other siblings over a 12- to 13-year period of time. Specifically, the petition alleged that the minors and their siblings had suffered repeated “whippings” on the buttocks and legs with an extension cord and other objects; that the minors and their siblings had been made to wait for the whippings with knowledge of what was to come but not of what they did to warrant the whippings in the first place; that appellant had threatened to poison Lucas after he went to San Francisco without her permission; and that appellant had hit Lucas with a metal hanger, leaving a scar on his thigh. The petition also alleged various acts of abuse by appellant to certain of her older children who were not the subject of the dependency proceedings.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code, and all citations to rules herein are to the California Rules of Court.
Appellant has 8 adopted children, including the minors involved in these proceedings, and 9 biological children. Appellant has also been guardian for another child, and has cared for over 100 foster children.
As set forth in documents filed by the County with the petition, the allegations stemmed from reports made by Marc and Lucas after moving out of appellant’s home that appellant had repeatedly subjected them to excessive corporal punishment, including whippings and scaldings, and to emotional abuse, including intimidation, threats, waiting for whippings and being forced to punish their other siblings. Marc and Lucas reported that the physical and emotional abuse also happened to Erica and Frank, and to other of the children who had already left appellant’s home. Appellant, a licensed foster parent, had been referred to the County at least 8 other times dating back to 1990 due to allegations of abuse or neglect in her home.
On March 13, 2006, the County filed an amended petition, again raising allegations of serious physical harm or substantial risk thereof with respect to all minors (§ 300, subd. (a)), and of serious emotional damage or substantial risk thereof with respect to Marc, Lucas and Frank (id., subd. (c)). The amended petition reiterated allegations that appellant had whipped the minors, made the minors wait for whippings with knowledge of what was to come but not of what they did to warrant the whippings in the first place, and had engaged in other identified acts of abuse and threats of abuse to Lucas. The amended petition omitted, however, among other things, the allegations in the original petition that appellant had engaged in acts of abuse against certain of her older children who were not the subject of these proceedings.
According to the County, the amended petition was “significantly shorter” than the original petition in an attempt “to omit the language most likely to be interpreted as inflammatory, and to limit the allegations to such matters that have been corroborated independently by more than one person, although in fact not all such instances have been incorporated into said Petition.”
Following a detention hearing, the juvenile court found that a prima facie case against appellant had been established, and that reasonable efforts had been made to prevent or eliminate the need to remove the minors from her home. Accordingly, the juvenile court ordered the minors’ detention pending further court order.
On March 10, 2006, the County filed a jurisdiction report, prepared by the investigating social worker, Kara Jacobs, recommending that the juvenile court find true the allegations set forth in the amended petition. The report noted that, while appellant “is an extraordinarily devoted parent to her children,” she had over the years engaged in a pattern of excessive physical and emotional abuse against them. In particular, the report set forth evidence, including statements made by appellant’s children during interviews with County personnel, that supported the allegations in the amended petition. This evidence had also been provided to the juvenile court in documents filed along with the original petition.
A contested jurisdictional hearing began May 9, 2006. Fifteen witnesses testified in person and one witness testified by stipulated offer of proof, including nine of appellant’s adopted or biological children. Following the hearing, on June 27, 2006, the juvenile court found by a preponderance of the evidence that the minors came within section 300, subdivisions (a) and (c), and ordered that the minors continue to be placed out of the home pending disposition.
The witnesses’ testimony is set forth in detail, post, in connection with our discussion of appellant’s challenge to the sufficiency of the evidence supporting the juvenile court’s jurisdictional and dispositional orders.
On August 21, 2006, a dispositional hearing was held. Following the hearing, consistent with the County’s recommendations, the juvenile court ordered continued out-of-home placement for the minors, appellant to comply with the County’s proposed case plan, and reunification services for appellant with respect to Erica and Frank. Appellant waived reunification services with respect to Marc and Lucas. The juvenile court set a 6-month review hearing for October 5, 2006, six months from the date the minors entered foster care.
On October 20, 2006, appellant filed a timely notice of appeal.
DISCUSSION
Appellant raises the following arguments on appeal: (1) the factual allegations in the amended petition failed to state a cause of action under section 300; (2) substantial evidence failed to support the jurisdictional and dispositional orders; (3) the 6-month review hearing was improperly calendared, violating appellant’s due process rights; (4) the case plan was inadequate in that it was not designed to reunify the family; and (5) the same attorney, Jacqueline Gillespie, was improperly permitted to represent all four minors despite the existence of an actual conflict of interest among them. Respondents Erica and Frank (minor respondents) join appellant in challenging the juvenile court’s decision to permit the same attorney, Gillespie, to represent all four minors despite the existence of an actual conflict of interest among them.
We deny respondent minors’ request for judicial notice of certain orders issued by the juvenile court in this matter after it issued the orders on appeal because we do not find them helpful to our resolution of the issues before us. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [“ ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration’ ”].) We deny the County’s request for judicial notice of a sealed transcript from a hearing held April 5, 2007 for the same reason.
Before turning to appellant’s and the minor respondents’ arguments, we briefly set forth the key principle guiding California dependency proceedings. The primary objective of such proceedings is to protect children’s safety and well-being. (In re Josiah Z. (2005) 36 Cal.4th 664, 673; In re Malinda S. (1990) 51 Cal.3d 368, 384, modified by statute on other grounds as recognized in In re Lucero L. (2000) 22 Cal.4th 1227, 1240-1241.) “ ‘The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time.’ (In re Marilyn H. (1993) 5 Cal.4th 295, 307 [19 Cal.Rptr.2d 544, 851 P.2d 826].)” (In re Josiah Z., supra, at p. 673.) As such, “[t]he best interests of the child are paramount. [Citations.]” (Ibid.)
I. Stating a Basis for Jurisdiction Under Section 300, Subdivisions (a) and (c).
We now address appellant’s initial claim that the amended petition failed to state a basis for the juvenile court’s jurisdiction under section 300, subdivisions (a) and (c). To state a cause of action in dependency proceedings, the petition must contain “[a] concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (§ 332, subd. (f).) “This does not require the pleader to regurgitate the contents of the social worker’s report into a petition, it merely requires the pleading of essential facts establishing at least one ground of juvenile court jurisdiction.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 399-400; see also In re S.C. (2006) 138 Cal.App.4th 396, 410.)
A challenge to the sufficiency of a petition is treated as a demurrer. (In re Alysha S., supra, 51 Cal.App.4th at p. 397; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133.) As such, the reviewing court must construe the well-pleaded facts in favor of the petition and determine whether a basis for jurisdiction is stated. (In re Nicholas B., supra, at p. 1133.)
Here, as set forth above, the amended petition alleged that (1) Marc, Lucas, Frank, and Erica had suffered or were at substantial risk of suffering serious physical harm inflicted nonaccidentally by appellant (§ 300, subd. (a)); and that (2) Marc, Lucas and Frank had suffered or were at substantial risk of suffering serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others as a result of appellant’s conduct (id., subd. (c)). Supporting those allegations, the amended petition described a 12- to 13-year pattern by appellant of excessive physical punishment in disciplining her children, including whipping them on their bare skin with an extension cord and other objects, and regularly making them wait for their whippings with knowledge of what was to come but not of what they did to warrant the whippings in the first place. The amended petition further described that appellant had on separate occasions threatened to poison and to kill Lucas, and had hit him with a metal hanger, leaving a scar on his thigh.
As an initial matter, we note that appellant failed to challenge the legal sufficiency of the allegations in the amended petition before the juvenile court. Appellant did file objections to certain evidence contained in the jurisdiction report filed by the County in support of the amended petition. Specifically, appellant objected on hearsay and relevancy grounds to certain statements regarding the abuse allegedly made by the minors and appellant’s other children that were referenced in that report. Appellant’s attorney also argued in her opening statement before the contested jurisdictional hearing that the allegations in the amended petition were insufficient to state a claim under section 300, subdivision (a) or (c). But appellant did not file a demurrer to the amended petition, or otherwise move to dismiss it as legally insufficient under section 300. According to the County, appellant has thus waived her right to challenge the petition on appeal.
A split of authority exists regarding whether an appellant in dependency proceedings may challenge the legal sufficiency of a petition for the first time on appeal. In In re Alysha S., supra, 51 Cal.App.4th 393, 397 [Alysha S.], the reviewing court permitted the appellant to raise such challenge for the first time on appeal, reasoning: “In the analogous civil context, such claim may be raised on appeal in the first instance. ‘ “If the party against whom a complaint or a cross-complaint has been filed fails to object to the pleading, either by demurrer or answer, that party is deemed to have waived the objection unless it is . . . an objection that the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.80, subd. (a) . . . .)’ [Citation.]” (In re Alysha S., supra, at p. 397.)
In In re Shelley J. (1998) 68 Cal.App.4th 322, 327-328 [Shelley J.], however, the reviewing court expressly disapproved the Alysha S. court’s reliance on rules governing civil cases in permitting the appellant to challenge the legal sufficiency of a section 300 petition for the first time on appeal. Concluding that the appellant had waived any such challenge by not raising it below, the reviewing court in Shelley J. instead looked to rules governing criminal cases, reasoning: “[R]ules applicable to civil cases are not applicable to dependency actions unless expressly made so. ‘Dependency proceedings in the juvenile court are special proceedings governed by their own rules and statutes. [Citations.] Unless otherwise specified, the requirements of the Civil Code and the Code of Civil Procedure do not apply. [Citations.]’ [Citation.] [¶] We find no authority that Code of Civil Procedure section 430.80, subdivision (a) applies to dependency actions. Rather, California Rules of Court, [former] rule39 [repealed in 2005] provides that rules governing criminal cases and appeals apply to juvenile proceedings unless otherwise specified. [Citations.] Accordingly, juvenile cases are governed by Penal Code section 1012, which provides that the failure to demur to defective pleadings waives the defect.” (In re Shelley J., supra, at p. 328. Accord In re S. O. (2002) 103 Cal.App.4th 453, 459; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1038, fn. 8 [“If the parent believes that the petition does not ‘adequately communicate’ the [Agency’s] concerns or is otherwise misleading, the onus is on the parent to challenge the petition at the pleading stage.”].)
Still other reviewing courts have observed that, so long as the juvenile court’s jurisdictional findings are supported by substantial evidence and the parent received adequate notice of the factual allegations against him or her, the adequacy of the petition is irrelevant. (In re Athena P. (2002) 103 Cal.App.4th 617, 628 [In re Athena P.]; In re Javier G. (2006) 137 Cal.App.4th 453, 458-459; see also In re Jessica C., supra, 93 Cal.App.4th at pp. 1036-1038; In re Jeremy C. (1980) 109 Cal.App.3d 384, 397.) Those courts have reasoned that, under the California Constitution, in all legal proceedings including dependency proceedings, “[n]o judgment shall be set aside . . . for any error as to any matter of pleading . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Accordingly, “[i]f the evidence at the jurisdictional hearing was insufficient, [the parent] can seek reversal on that ground. But if the evidence was sufficient to support the juvenile court’s findings, any failure of the petition to state a cause of action became harmless error. Either way, the only issue before us is the sufficiency of the evidence at the jurisdictional hearing.” (In re Athena P., supra, 103 Cal.App.4th at p. 628; accord In re Jessica C., supra, 93 Cal.App.4th at pp. 1037-1038 [“after a hearing on the merits has been held on the petition, the focus must necessarily be on the substance of the allegations found true by the juvenile court”].)
We agree with this reasoning set forth in In re Athena P. As such, given that appellant has not claimed to have received insufficient notice of the allegations against her, we turn to her challenge to the sufficiency of the evidence to support the juvenile court’s jurisdictional and dispositional orders.
II. Sufficiency of the Evidence Supporting Jurisdiction and Disposition.
Appellant contends the juvenile court’s jurisdictional and dispositional findings were not supported by sufficient evidence. “A jurisdictional order is only a finding. The dispositional order is the judgment. Only the judgment is appealable. On appeal from the judgment, the jurisdictional findings can be reviewed.” (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112, citations omitted.) We separately address each of the juvenile court’s findings below.
A. Jurisdictional Findings.
“ ‘The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court’s jurisdiction.’[Citation.]” (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.) Section 300 provides that any child who comes within one of 10 descriptions “is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court.” Here, the juvenile court found the minors came within the descriptions set forth in section 300, subdivision (a) and (c).
Section 300, subdivision (a) permits the juvenile court to adjudge a child a dependent of the court where “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian. . . . For purposes of this subdivision, ‘serious physical harm’ does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.” Section 300, subdivision (c) permits the juvenile court to adjudge a child a dependent of the court where “[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. . . .”
On appeal, we apply the substantial evidence rule to the juvenile court’s findings under section 300, subdivisions (a) and (c). “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.]” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; see also In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
In applying this standard, we must not evaluate the credibility of witnesses or reweigh the evidence. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) Further, we must not disturb the juvenile court’s order unless it exceeds the bounds of reason. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) We must also keep in mind that, as set forth above, the “paramount purpose” of dependency proceedings is protection of the child. (In re Jason L., supra, 222 Cal.App.3d at p. 1214.)
Here, the record reveals significant evidence – provided in testimonial form from 16 witnesses, including 9 of appellant’s biological or adopted children – relating to the allegations of appellant’s physical and emotional abuse of her children. A brief summary of such evidence follows.
Two of the minors – Marc and Lucas – testified on behalf of the County. Both described being physically and emotionally abused by appellant. In particular, they described being lined up with their siblings for whippings, often in the middle of the night and usually with an extension cord but sometimes with other objects, including a wire hanger and a piece of a wooden picture frame. Often, appellant did not tell the children why they were being whipped. Marc and Lucas also both described being forced by appellant to hit their siblings, thereby participating in the other children’s punishment.
In addition, Marc testified that the whippings hurt badly, and at times caused his bottom to bleed. Lucas pointed out a visible scar on his left leg, which he said was caused by appellant hitting him with a wire hanger. Lucas stated that appellant had also threatened to poison or to kill him and other of his siblings, and that he believed appellant was capable of carrying out such threats.
Relevant to the allegations of emotional abuse, Lucas noted: “You can never get used to getting whipped.” And Marc and Lucas both expressed sadness that, because they had left appellant’s home, they believed appellant would forbid them from having contact with their other siblings.
The juvenile court noted some inconsistencies in Marc’s and Lucas’s testimony. For example, Marc initially denied, but later claimed, that appellant often whipped his bare skin, and Lucas initially claimed to have seen appellant whip Erica two times, then later claimed to have seen it happen “a couple hundred times.” The juvenile court ultimately found, however, “the consistencies [in their testimony was ] more prevalent than the inconsistencies,” and noted their testimony about appellant lining them up for whippings with an extension cord was “nearly identical.”
The juvenile court found “the most powerful and convincing testimony,” however, to be that of Renee and Sharon, two of appellant’s biological children who initially came to the hearing to support their mother. Both described abuse by appellant that was, according to the juvenile court, “strikingly similar to that described by Marc and Lucas.”
In particular, Renee, a 50 year old accountant, acknowledged having been physically and emotionally abused by appellant when she was a child living in appellant’s home. Renee explained that, although she loved appellant, she had read a booklet on child abuse in the court lobby, and realized the importance of coming forward with the truth about appellant’s abuse of her and her siblings. Very similar to Marc’s and Lucas’s testimony, Renee testified that appellant threatened her and her siblings and lined them up for whippings with extension cords or other cords when they misbehaved, causing welts on their legs. Renee also recalled appellant calling her and her siblings names like “whores,” “heifers,” “cows,” and “a-holes,” and “mak[ing] [them] feel like nothing” or “stupid” if they disagreed with appellant. According to Renee, “the emotional abuse, I think – I would think it was even a little more than the physical abuse. You take that with you into adulthood. You have to grow past that.”
Sharon, a 55 year old retired police officer, likewise testified that appellant had lined up her and her siblings and whipped them with an extension cord, causing welts on their legs. She also recalled them being slapped, threatened, called names like “cow” and “heifer,” and insulted. Sharon, like Renee, described the emotional impact of appellant’s abuse: “Always living in fear. . . . I mean, I know she can’t physically harm me, but just living like – fear, like . . . I think sometimes the emotional is the worse [sic], or the words, or the tone, or the names. It just makes you feel like less than human.” And while Sharon never saw appellant physically abuse the minors, she “saw the tone, and . . . saw the snatching on them, and . . . saw really severe control issues. As soon as I would go [to appellant’s home], I wanted to leave.” Sharon also explained that she felt compelled to testify against appellant because “I knew I couldn’t live with myself if something happened to [Frank or Erica].”
Similar to the testimony of Marc, Lucas, Renee and Sharon, T., an 18 year old female for whom appellant used to act as guardian, testified by offer of proof that appellant had whipped her with an extension cord as a mode of discipline, and had threatened her with hot water. T. did not, however, see appellant physically discipline Frank or Erica.
Appellant testified on her own behalf that she followed a “graduated mode of discipline” that included whipping a child only when he or she was “endangering someone else or themselves,” but vehemently denied ever disciplining her children inappropriately, calling them names, or threatening them. To explain the allegations, appellant insisted Sharon and Renee may be affected by symptoms of menopause or by their husbands’ recent illnesses, and that Marc was the victim of a conspiracy between his foster parents and a social worker. As the juvenile court noted, however, not one of her children corroborated her so-called philosophy of progressive discipline.
Several of appellant’s children – including Rodney, Ronnie (aka Byron), Kristopher and Laurie – also testified on her behalf. Rodney denied that appellant had threatened or abused him or his siblings, but acknowledged being very loyal to her and willing to support her no matter what happened during his childhood. Rodney also acknowledged that appellant had used a belt to whip the children to discipline them. Additionally, Rodney admitted being incarcerated three times since 2000 for burglary-related offenses.
Ronnie, Laurie and Kristopher likewise denied that appellant had threatened or abused them or their siblings. In particular, Kristopher, whose room is next to Lucas’s, claimed he had never seen or heard appellant enter Lucas’s room at night to hit him, and disputed testimony by Marc that appellant had purposefully scalded Kristopher’s stomach with hot water, requiring medical attention. But Kristopher and Laurie admitted appellant had used a belt to whip the children to discipline them. Moreover, Ronnie acknowledged being incarcerated three times between 1975 and 1986 for felony offenses, and the juvenile court noted Kristopher appeared to look to appellant for approval when testifying.
Three non-family witnesses also testified on appellant’s behalf. Such witnesses included two friends and a pediatrician, each of whom had known the family for many years and denied having reason to suspect that appellant inappropriately disciplined her children. One of the friends testified that Lucas had a reputation for being untruthful at school. The pediatrician acknowledged, however, that Marc had once called him to report that appellant had hit certain of the children, and the pediatrician and the friends all acknowledged having limited knowledge of what occurred in appellant’s home because they did not live there. The juvenile court found these witnesses credible, but noted their limited personal knowledge of what occurred in appellant’s home.
On appeal, appellant spends much time pointing to the inconsistencies in Marc’s and Lucas’s testimony, and to the denials of abuse in certain of the other witnesses’ testimony. But as we have already set forth, our role as reviewing court is to establish whether substantial evidence supports the juvenile court’s findings under section 300, subdivisions (a) and (c), not to draw our own conclusions regarding the credibility of witnesses or the weight of evidence. (In re Katrina C., supra, 201 Cal.App.3d at p. 547; In re Albert T., supra, 144 Cal.App.4th at p. 216.) And applying this standard, we conclude such substantial evidence in fact exists.
With respect to the juvenile court’s finding by a preponderance of the evidence that, under section 300, subdivision (a), the minors had suffered or were at substantial risk of suffering serious physical harm inflicted nonaccidentally, we conclude the testimony from Marc, Lucas, Renee and Sharon, set forth above, relating to being whipped with household objects such as an extension cord and threatened with other types of physical abuse provided ample evidentiary support. Indeed, all of appellant’s children who testified at the hearing with the exception of Ronnie (aka Byron) admitted, at a minimum, that appellant had whipped or beaten them with objects when she disciplined them. This fact, considered together with the testimony from Marc, Lucas, Renee and Sharon, leaves us with little doubt that the substantial evidence standard has been met.
With respect to the juvenile court’s finding by a preponderance of the evidence that, under section 300, subdivision (c), the minors had suffered or were at substantial risk of suffering serious emotional damage, as evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of appellant’s conduct, we again conclude such finding was adequately supported. In particular, we point to testimony by Marc, Lucas, Renee and Sharon that appellant repeatedly threatened them and called them degrading names like “cow,” “heifer,” and “a-hole.” Both Renee and Lucas described the lasting psychological impact of such abuse, and Sharon insisted the emotional abuse was in fact worse than the physical abuse, noting that “welts [as opposed to emotional abuse] . . . can heal.” Indeed, despite being 55 years old at the time of the hearing, Sharon cried throughout her testimony. And, even more significant to our case, Sharon worried about ongoing signs of emotional abuse she observed when visiting appellant’s home: “I saw the tone, and I saw the snatching on them, and I saw really severe control issues. As soon as I would go there, I wanted to leave.”
In addition, Marc and Lucas both expressed their ongoing worry and sadness that appellant would prevent them from maintaining contact with their other siblings based on their decision to leave her home. And Sharon expressed worry that neither appellant nor her other siblings would speak to her again because of her testimony. Such feelings of anxiety and alienation from other family members clearly fall within the scope of emotional abuse covered by section 300, subdivision (c).
We note that, while the amended petition alleged that Marc, Lucas and Frank, but not Erica, came within section 300, subdivision (c), the juvenile court found that all “the minors” came within that provision. It is unclear whether this discrepancy was a mistake on behalf of either the County or the juvenile court. The County’s disposition report, which the juvenile court adopted after the jurisdictional hearing, states that “[w]ithout question, Erica and Frank would be at substantial risk of both physical and emotional harm if they were to be placed in the home of their mother.” In any event, we interpret the court’s section 300, subdivision (c) finding, consistent with the amended petition, to include only Marc, Lucas and Frank, and not Erica. Our interpretation, however, has no significant impact on the disposition, given the substantial evidence supporting the juvenile court’s alternative finding that all minors came within section 300, subdivision (a).
In drawing these conclusions, we acknowledge appellant’s argument that, while there may be evidence in the record of past emotional and physical abuse of the children in her home, there was no evidence of current abuse or current risk of abuse to any of the minors. In particular, we note that Frank and Erica both wanted to return home, that Erica denied to the court that she or Frank had been abused by appellant, and that Marc and Lucas had reached 18 years of age and no longer lived at home.
Frank initially told County personnel that he and his siblings “get whipped” by appellant with an extension cord when they misbehave, but then later said he had “lied” about such whippings. Erica denied to the County that appellant whipped her or her siblings, but acknowledged appellant had “spanked” her a long time ago, but never with an extension cord or belt. Neither Erica nor Frank was called to testify at the jurisdictional hearing. At the dispositional hearing, however, Erica told the juvenile court that she wished to go home because “out of all those times that people say stuff happened, the thing is, none of it ever happened to me and Frank.” Frank testified that he too wished to go home and “just forget about all of this.”
Under California law, “[w]hile evidence of past conduct may be probative of current conditions, . . . ‘the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; “there must be some reason to believe the acts may continue in the future.” [Citations.]’ ” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [Rocco M.].) As the appellate court explained in Rocco M., cases finding a substantial risk of danger tend to fall into two factual patterns: “One group involves an identified, specific hazard in the child’s environment--typically an adult with a proven record of abusiveness. [Citations.] The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. [Citations.]” (In re Rocco M., supra, at p. 824.)
This case clearly falls into the first group -- an adult with a proven record of physical and emotional abusiveness. (See also § 300, subd. (a) [“[f]or the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. . . .”] [emphasis added].) For many years, appellant’s children, including Marc and Lucas, have suffered various acts of physical and emotional abuse at her hands. Moreover, the evidence supports a reasonable inference, based on the long history of appellant’s past abuse, that such abuse is likely to reoccur, placing minors at a substantial risk of serious harm. That is particularly true given that appellant has thus far been unwilling to acknowledge her abusive conduct, or to fully utilize the services offered to her. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1657-1658 [harm to minor likely to reoccur where “mother is in denial . . . about her [child-endangering conduct]” and “refuses to cooperate with professionals”].)
Accordingly, we affirm the juvenile court’s jurisdictional findings and proceed to consideration of the court’s dispositional findings.
B. Dispositional Findings.
Section 361, subdivision (c) provides that “[a] dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence” of one or more of five conditions. Here, the juvenile court found clear and convincing evidence of two such conditions, to wit, those set forth in section 361, subdivision (c)(1) and (3). Consistent with the County’s investigating social worker’s recommendation, the juvenile court thus ordered that the minors should remain out of appellant’s home while appellant received reunification services with respect to Erica and Frank.
Section 361, subdivision (c)(1) permits a child’s removal where: (1) “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home,” and (2) “there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.” Section 361, subdivision (c)(3) permits a child’s removal where: (1) “[t]he minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others,” and (2) “there are no reasonable means by which the minor’s emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian.”
As mentioned above, appellant waived reunification services with respect to Marc and Lucas.
As before, we apply the substantial evidence rule to the juvenile court’s findings under section 361, subdivision (c)(1) and (3). (In re Katrina C., supra, 201 Cal.App.3d at p. 547; see also In re Jason L., supra, 222 Cal.App.3d at p. 1214.) And, as before, we have no trouble concluding those findings were adequately supported by the evidentiary record already set forth in detail above. In addition, we note again appellant’s continued refusal to acknowledge the abusive nature of her conduct. Until such time as appellant demonstrates a willingness to work with the professionals the County has made available to her to change her approach to discipline and to improve her ability to raise children, we agree with the juvenile court that no reasonable means exist to protect the minors’ physical and emotional well-being without their continued removal from her custody.
Accordingly, we affirm the juvenile court’s dispositional findings.
III. Scheduling of the 6-Month Review Hearing and Adoption of the Case Plan.
Following oral argument, appellant filed a motion and application to augment the record, to include the amended notice of appeal referring to the 6-month review hearing. We have granted this motion and have so augmented the record; therefore, we will consider this issue on its merits.
Appellant also challenges the juvenile court’s scheduling of the 6-month review hearing, and its order at that hearing that she comply with the County’s proposed case plan. Specifically, appellant challenges the juvenile court’s scheduling of the 6-month review hearing on the ground that only 6 weeks elapsed between it, held October 5, 2006, and the disposition hearing, held August 21, 2006. She challenges the juvenile court’s order to comply with the County’s case plan on the ground that it was not designed, as dependency law requires, to reunite the minors with appellant.
At the 6-month review hearing, the juvenile court, among other things, found that the minors’ out-of-home placement continued to be necessary and appropriate, that reasonable services had been provided or offered, and that appellant had failed to participate regularly and to make substantive progress in court-ordered treatment programs and services. The court thus ordered that the minors remain out of the home, ordered appellant to comply with the case plan, and continued the matter for a permanency placement hearing. Given the substantial evidence of appellant’s long history of abusive conduct, we are at a loss to see how there is a reasonable probability that, at the 6-month review hearing, the juvenile court would have ordered the return of the minors to appellant’s custody or declined to order compliance with the case plan, even if that hearing had been scheduled for a later date. (In re Dennis H. (2001) 88 Cal.App.4th 94, 103 [“It is not enough for the [parent] to show that the errors had some conceivable effect on the outcome of the proceeding; he must show ‘ “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ . . . [Citation]”].) As such, we move on to appellant’s remaining contention.
The case plan required appellant to, among other things, meet regularly with the social worker; sign all necessary releases of information; maintain consistent visitation with Frank and Erica; “accept the disclosure of her children and acknowledge responsibility for the abuse”; participate in weekly individual counseling; complete a parenting education program; and accept any other referrals necessary to achieve the objective of having Frank and Erica return home. The County presented the case plan in connection with the dispositional hearing. Appellant admittedly did not object to it at that hearing and, in fact, indicated a willingness to “embrace [it],” although she did not sign it. Following the dispositional hearing, the juvenile court ordered her to comply with it. At the 6-month review hearing, appellant raised certain objections to the case plan. In particular, she objected to restrictions placed on her visitation with Frank and Erica. The court addressed her visitation concerns by, among other things, asking the County to consider permitting Frank and Erica to attend church with appellant unsupervised so long as an approved neutral person provided transportation, and again ordered her to comply with the case plan. In seeking to appeal the order to comply with the case plan, appellant again points to the plan’s visitation restrictions in arguing it is not intended to reunite the family.
IV. Permitting the Same Attorney to Represent All Minors.
Appellant and respondent minors claim the juvenile court erred by permitting a single attorney, Gillespie, to represent all minors, despite the existence of a conflict of interest between Erica and Frank, on the one hand, and Marc and Lucas, on the other hand. Appellant and respondent minors claim such conflict existed because, while Marc and Lucas insisted they and their siblings had been repeatedly abused by appellant and wished to remain out of her home, Erica and Frank denied such abuse and wished to return home. Given the minors’ conflicting accounts of past events and preferences as to their future placement, appellant and respondent minors claim the juvenile court should have appointed separate counsel to represent Erica and Frank.
As set forth above, Frank initially told County personnel that he and his siblings “get whipped” by appellant with an extension cord when they misbehave, but then later said he had “lied” about such whippings. Erica denied to the County that appellant whipped her or her siblings, but acknowledged appellant had “spanked” her a long time ago, but never with an extension cord or belt. During the dispositional hearing, both Frank and Erica told the juvenile court they wished to return home, and Erica denied that she or Frank had been abused.
We note as an initial matter that “[a] [parent] has standing to assert his [or her] child’s right to independent counsel, because independent representation of the children’s interests impacts upon the [parent’s] interest in the parent-child relationship. [Citations.]” (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 565, abrogated on other grounds by In re Tabitha W. (2006) 143 Cal.App.4th 811, 817.)
As we shall explain, we need not determine whether the juvenile court should have appointed separate counsel to represent Erica and Frank, because even if we were to assume the juvenile court erred in not appointing separate counsel, any error could not have been prejudicial under the applicable standard. (See People v. Watson (1956) 46 Cal.2d 818, 836.) As the California Supreme Court has held, failure to appoint separate counsel for separate siblings in a juvenile dependency matter is subject to the harmless error standard. (In re Celine R., supra, 31 Cal.4th at p. 59.) Under that standard, “[a] court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error.” (Id. at p. 60.) In other words, the error must have resulted in a “miscarriage of justice.” (Ibid., citing Cal. Const., art. VI, § 13.)
Here, the minors’ counsel acted wholly consistent with her statutory duties under section 317, subdivision (e). Specifically, the record reveals that counsel independently investigated the facts, interviewed the minors, questioned witnesses (including Marc and Lucas) during the contested jurisdictional hearing, made an offer of proof regarding the proposed testimony of T., appellant’s former ward, and otherwise participated in the dependency proceedings before the juvenile court on the minors’ behalf. Counsel also advised the juvenile court of each of the minors’ wishes regarding placement, but then ultimately recommended their continued removal from the home based, to the best of her knowledge, on the minors’ overriding need for protection and safety. Not only did the evidence support her recommendation for all the reasons set forth above in affirming the juvenile court’s jurisdictional and dispositional findings, her recommendation was consistent with that made by the investigating social worker. As such, even if Erica and Frank had been appointed separate counsel, that counsel likely would have argued, as Gillespie did, that removal was in their best interests.
And even if new counsel had argued against Erica’s and Frank’s removal, it is far from clear the juvenile court would have made a different ruling. In accepting Gillespie’s recommendation, the juvenile court was well-informed of the minors’ conflicting wishes for placement, as well as their conflicting accounts of the alleged circumstances leading to their removal. The juvenile court nonetheless quite reasonably concluded their removal was necessary.
Accordingly, we find no reasonable probability exists that, but for the failure to appoint separate counsel, the juvenile court would have ordered Erica and Frank returned to appellant’s care and custody. (In re Celine R., supra, 31 Cal.4th at pp. 59-60.)
In so finding, we acknowledge the brief filed by amicus curiae the National Association of Counsel for Children and its affiliate, the Northern California Association of Counsel for Children (collectively, NACC), on behalf of appellant and respondent minors. Seeking to establish the juvenile court erred by failing to appoint separate counsel, NACC relies not on California law, but on standards proposed by the American Bar Association (ABA) and its own organization. The ABA standards, as described by NACC, “call for client-directed advocacy based on the traditional duty of an attorney to zealously advocate the client’s legal interests and require the attorney to represent the child’s expressed preference,” even if contrary to the child’s best interests. (ABA Standards, Std. B-4.) The NACC standards, in turn, call for a modified version of the ABA standard, in which “the attorney is required to use the client-directed model of representation ‘except where the child cannot meaningfully participate in the formulation of the client’s position.’ (ABA (NACC Revised) Standard B-4(2).) In that case, the attorney is to employ a substituted judgment approach or request the separate appointment of a traditional guardian ad litem, depending on the circumstances. (Id., Standard B-4(1).)”
We decline NACC’s request to apply its own or the ABA’s proposed standards to the case at hand. Whatever their merit may be, it is clear those proposed standards conflict with the current state of California law, as set forth above. And we, of course, must follow California law, as duly enacted by our Legislature and interpreted by our courts, not the proposed standards of the two independent organizations.
The County additionally notes that, were this court to follow the standards advocated by NACC, the likely result in dependency proceedings would be (1) an increased public financial burden, as courts would be required in many cases to appoint both an attorney and a guardian ad litem rather than just an attorney who also serves as a guardian ad litem for a child; and (2) an increased adversarial environmental, as attorneys would likely request more contested hearings to avoid charges of ineffective assistance of counsel and failure to represent the child’s expressed preference. We share the County’s concerns. As the California Supreme Court has emphasized, dependency proceedings are expressly designed to be more flexible and less adversarial than general civil or criminal proceedings, to better serve the objective of safeguarding the welfare of children rather than prosecuting parents alleged to have harmed those children. (E.g., In re Malinda S., supra, 51 Cal.3d at p. 384; In re Marilyn H., supra, 5 Cal.4th at p. 307.) As such, we look skeptically at any proposed course of action that could threaten “the idealistic prospect of an intimate, informal protective proceeding” and inject “the traditional delay, the formality, and the clamor of the adversary system” into the dependency system. (See In re Charles C. (1991) 232 Cal.App.3d 952, 956, quoting McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545, 550 [declining to recognize a constitutional right to a jury trial in juvenile proceedings].)
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
We concur: McGuiness, P. J., Pollak, J.