Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 2811-DEP.
Marchiano, P.J.
Defendant M.M. is the father of one-year-old M.P., a dependent child of the juvenile court. The juvenile court terminated Father’s parental rights. Father does not challenge that order on appeal. Rather, he asks that we correct two of the juvenile court’s findings of jurisdiction: (1) that Father had previously been convicted of sexual abuse as defined in Penal Code section 11165.1; and (2) that Father had admitted committing conduct constituting sexual abuse. Father contends the jurisdictional findings are not supported by substantial evidence. We reject Father’s contention because he has waived the issue and because the findings are supported by substantial evidence in the record.
I. PROCEDURAL BACKGROUND AND FACTS
Because Father does not challenge the dispositional findings and the order terminating his parental rights, we need only discuss the facts and procedural background pertinent to the challenged jurisdictional finding.
On February 25, 2008, respondent Sonoma County Human Services Department (Department) filed a dependency petition on behalf of M.P., who was then nine days old. The Department alleged that Father and M.P.’s mother, J.P., had failed to protect M.P. (Welf. & Inst. Code, § 300, subd. (b)) due to their substance abuse, Mother’s mental illness, and the couple’s domestic violence. The Department also alleged sibling abuse. (§ 300(j).)
Subsequent statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
This appeal concerns the Department’s additional jurisdictional allegation of sexual abuse (§ 300(d)): “The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent....” As supporting facts, the Department alleged: “On or about May 18, 1995, in the Second Judicial Court of the State of Nevada, in and for the County of Washoe, [Father] was charged with child endangerment and sexual assault of two infant minors ([28 days] old at the time of the incident). As a result of his conviction for these violent felony charges, [Father] was sentenced to serve two years in Nevada State Prison.”
The Department submitted records of the Nevada proceedings to the juvenile court. On December 13, 1993, Father was indicted by the Washoe County Grand Jury for several sex offenses involving Brittany V.R. and Mark V.R., both 28 days old, as well as numerous drug offenses. In a guilty plea memorandum, signed by Father on March 9, 1994, and filed with the court the next day, Father acknowledged that he was charged with felony sexual assault and misdemeanor child abuse of Brittany (counts I and II); misdemeanor child abuse of Mark (count IV); and six drug felonies, including possession of marijuana (count VIII).
The guilty plea memorandum recites that Father desired to plead guilty to counts II and IV, misdemeanor child abuse of Brittany and Mark, and count VIII, felony marijuana possession. In exchange for his plea, the prosecution agreed to “concur with the recommendation of the Department of Parole and Probation” and dismiss all other criminal charges.
The guilty plea memorandum contained these recitations by Father with regard to the child abuse allegations to which he was pleading guilty: “I understand the charge(s) against me and that the elements of the offense(s) which the State would have to prove beyond a reasonable doubt at trial are that on the 25th day of November, 1993, or thereabout, in the County of Washoe, State of Nevada, I did, as to Count II, willfully and unlawfully, being an adult person, cause BRITTANY V.R., a child of the age of 28 days, to suffer unjustifiable physical pain as a result of abuse, in that I caused the infant victim’s vagina to be penetrated resulting in the tearing of her vagina with resultant bleeding and an open wound. I understand the charge(s) against me and that the elements of the offense(s) which the State would have to prove beyond a reasonable doubt at trial are that on the 25th day of November, 1993, or thereabout, in the County of Washoe, State of Nevada, I did, as to Count IV, willfully and unlawfully, cause MARK V.R., a child of the age of 28 days, to suffer unjustifiable physical pain as the result of abuse in that I caused bruises to the infant victim’s face and penis ....” (Italics added.)
Immediately after these recitations, Father recited: “I understand that I admit the facts which support all the elements of the offenses by pleading guilty. I admit that the State possesses sufficient evidence which could result in my conviction.” (Italics added.)
The memorandum further recited that Father entered his guilty plea pursuant to North Carolina v. Alford (1970) 400 U.S. 25 (Alford).
On April 19, 1994, the Washoe County District Court entered a judgment finding Father guilty of counts II, IV, and VIII. The court sentenced Father to one year in county jail on count II and a consecutive one year in county jail on count IV. The court ordered that defendant be sentenced to prison on count VIII. On May 18, 1995, the court sentenced Father to a suspended prison sentence of two years on count VIII.
At the jurisdictional hearing in the present case, the social worker testified that the records showed that Father pleaded guilty to and was convicted of misdemeanor child abuse—and was not convicted of the original charge of felony sexual assault (count I of the indictment).
Counsel for the Department argued that “there is undisputed evidence of a history of conviction for child abuse, and those child abuse allegations related to sexual abuse, although, they became misdemeanors as the plea agreement was reached.” Counsel also argued that the Nevada records show “graphic sex abuse which gave rise to [Father’s] convictions in Nevada.... [T]he plea agreement outlines them in detail.... This was pled to [as] a misdemeanor... but it doesn’t mean that the sex abuse did not take place as [it] is graphically described and chillingly so of... 28-day-old twins.”
With regard to the section 300(d) allegation of jurisdiction, the juvenile court found: “That under [section 11165.1(b)(3)] of the Penal Code, anyone who penetrates the vagina of another against the will and consent of that person is guilty of the act of sexual assault. As for the facts and circumstances [of] the [section 300](d) allegation, the Court does find that on November the 25th, 1993, or thereabouts, [Father] did penetrate the vagina of a 28-day-old child, resulting in bleeding, an open wound. Also on November the 25th, 1993, [Father] did bruise the face and penis of a 28-day-old child as admitted by [Father]and filed with the Court on March 9th, 1994.
“Based upon the admissions of [Father], there is a [section] 300(d) allegation.
“[S]o the Court finds that [Father] admitted to penetrating the vagina causing injury of a 28-day-old girl, and causing bruising to the penis and face of a 28-day-old boy. There is a [section] 300(d) allegation.
“It’s the conduct that the Court is concerned with, not what the eventual convictions were for under [Penal Code section] 11165.1.” (Italics added.)
The juvenile court found true a section 300(d) allegation based on the findings set forth above, and ordered that the petition be amended to conform to its specific findings. The Department amended the petition to allege: “On or about November 25, 1993, or thereabouts, [Father] did penetrate the vagina of a 28 day-old child, resulting in bleeding and an open wound; also on or about November 25, 1993, or thereabouts, [Father] did bruise the face and penis of a 28 day-old child, all as admitted by [Father] in the Guilty Plea Memorandum dated March 9, 1994, and filed in the Second Judicial District Court of the State of Nevada on March 10, 1994.”
After the jurisdictional hearing, the juvenile court entered a written order including the finding that “[F]ather has been previously convicted of sexual abuse as defined in Penal Code section 11165.1.”
The court also found true additional jurisdictional allegations against Father and Mother, and continued the matter for disposition.
Father appealed from the jurisdictional findings. We dismissed that appeal as premature because it was filed prior to the dispositional findings and orders. (In re M.P. (Aug. 1, 2008, A121552) [nonpub. order of dismissal].)
At the dispositional hearing, the juvenile court denied reunification services pursuant to section 361.5(b) and set a hearing under section 366.26 (.26 hearing). Father was given notice of his right to seek appellate review by filing a petition for extraordinary writ. Father filed a Notice of Intent to file such a writ petition (Cal. Rules of Court, rule 8.450), but failed to file a writ petition.
At the.26 hearing, the juvenile court terminated Mother’s and Father’s parental rights and ordered a permanent plan of adoption.
Mother is not a party to the present appeal.
II. DISCUSSION
As noted, Father appeals from the order terminating his parental rights, but seeks only to correct the jurisdictional findings regarding sexual abuse: (1) that he had previously been convicted of sexual abuse as defined in Penal Code section 11165.1; and (2) that he had admitted committing conduct constituting sexual abuse.
Father has waived his right to challenge the jurisdictional findings by failing to file a petition for extraordinary writ from the dispositional order setting the.26 hearing.
Under the rule of waiver, if a parent in a dependency proceeding does not seek appellate review of an order subject to such review, the order “is final and binding and may not be attacked on an appeal from a later appealable order. [Citations.]” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 (Meranda P.).) This waiver rule is regarded as “sound.” (Id. at p. 1151.)
The policy of the waiver rule applies whether the unused avenue of review is direct appeal, as in the case of a typical disposition order, or a writ petition when the parent is denied reunification services and a.26 hearing is immediately set.
As discussed at some length in Meranda P., the waiver rule does not generally impede a parent’s due process rights because of the significant safeguards built into the dependency statutory scheme. (Meranda P. supra, 56 Cal.App.4th at pp. 1154-1155.) The waiver rule also ensures reasonable expedition and finality of dependency proceedings, especially given the dependent child’s interest in securing a stable home free of circumstances causing parental abuse or neglect. (Id. at pp. 1151-1152, 1155-1156.) Finally, the waiver rule facilitates legislative intent: “authorizing parents to attack final appealable orders by means of an appeal from a subsequent appealable order would sabotage the apparent legislative intention to expedite dependency cases and subordinate, to the extent consistent with fundamental fairness, the parent’s right of appeal to the interests of the child and the state. [Citation.] The Legislature has made known its desire not to allow the child’s future to be held hostage to a postponed appeal.” (Id. at p. 1156, fn. omitted.)
Father argues the waiver rule should not apply because his trial counsel was constitutionally ineffective for failing to file the writ petition. He admits that the law is apparently not entirely settled as to whether ineffective assistance of counsel can vitiate the waiver rule. (See In re Athena P. (2002) 103 Cal.App.4th 617, 624 [noting conflict in authority].) We need not resolve the question. Trial counsel’s failure to file a writ petition did not fall below the standard of care because such a petition would have been without merit. Father suffered no prejudice from the failure to file a writ.
Father simply errs by claiming he never admitted conduct amounting to sexual abuse. By the clear terms of the Nevada guilty plea memorandum, Father admitted to penetrating the vagina of a 28-day-old baby girl, causing bleeding and an open wound, and admitted bruising the face and penis of a 28-day-old baby boy. Father argues he made no such admission because he entered an Alford plea. But an Alford plea is a plea of guilty with a protestation of innocence or a denial of the facts supporting the charges. (Alford, supra, 400 U.S. at pp. 37-38.) Father’s was not an Alford plea, despite the nomenclature used by the Nevada court. Father expressly admitted the facts underlying the two counts with which he was charged regarding the 28-day-old victims. Thus, the juvenile court’s finding that he committed the conduct which he expressly admitted is supported by substantial evidence.
So, too, is the court’s finding that Father was convicted of sexual abuse as defined in Penal Code section 11165.1. Father stresses he pleaded guilty to misdemeanor crimes of child abuse, not sexual abuse—but the juvenile court properly focused on the conduct underlying the plea, not the actual crime pleaded to. Penal Code section 11165.1, part of the Child Abuse and Neglect Reporting Act, does not speak to convictions—it speaks to conduct. It defines various sexually abusive conduct which must be reported. By admitting conduct defined as sexual abuse by that statute, and being convicted based on that conduct, Father was “convicted of sexual abuse as defined in Penal Code section 11165.1.” The juvenile court’s finding was correct.
III. DISPOSITION
The order terminating parental rights is affirmed.
We concur: Margulies, J., Banke, J.
For purposes of style, we will use an abbreviated statutory citation form, such as “section 300(d)” instead of “section 300, subdivision (d).”