Opinion
A166653
09-27-2023
In re C.H., a Person Coming Under the Juvenile Court Law. v. C.H., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J45622
BANKE, J.
After 16-year-old C.H. was arrested for various crimes in connection with an inappropriate sexual relationship with a 38-year-old woman, N.S., the Solano County District Attorney filed a Welfare and Institutions Code section 602 delinquency petition. Once C.H.'s true age was discovered-he had previously told officers he was 21 years of age-the Solano County Department of Health and Social Services received a referral alleging general neglect, sexual abuse, and failure to provide under section 300, subdivisions (b), (d), and (g).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In accordance with section 241.1, which sets forth the procedures for handling cases with the potential for dual jurisdiction-that is, delinquency jurisdiction under section 601 or 602 and dependency jurisdiction under section 300-the social services and probation departments filed a joint assessment report concluding no provisions of section 300 were applicable and C.H.'s needs could be best served under section 602. The juvenile court agreed and ordered that the matter proceed under delinquency jurisdiction. C.H. appealed.
The Attorney General concedes section 300, subdivision (d) is applicable and that the juvenile court's ruling should be reversed, and the matter remanded for further proceedings. We agree.
Background
C.H. was born in Mexico, where he lived with his family until he was around 14 years old. He then immigrated to the United States as an unaccompanied minor to help his family after his father became disabled, and to "escape the threats of the gangs." When he arrived in the United States, he stayed in his paternal uncle F.H.'s home, along with another uncle and "a number of adult non-relative males" who also occasionally stayed with the paternal uncle. C.H. did not have a room but instead slept on the floor. C.H. did not attend school. Instead, he began working three jobs and sent the money he earned to his family and paid rent to his uncle. He also bought his own food and clothing.
Two years later, when C.H. was 15 years old, he became involved in a sexual relationship with 38-year-old N.S. N.S. was aware of C.H.'s age and allowed C.H. to live with her and her 11-or-12-year-old daughter, R.S.
Paternal uncle knew of the relationship and although he did not condone it, he did not report the relationship to the police or child protective services. C.H.'s mother also knew of the relationship, although she did not know N.S.'s exact age. C.H.'s father "was not aware of what is going on with [C.H.]"
In July 2021, C.H. was attacked and stabbed by N.S.'s ex-husband, who was 47 years old. When C.H. was released from the hospital, he continued to live with N.S. because he felt he had to protect her from her ex-husband.
In March 2022, C.H. was involved in two domestic violence incidents with N.S., who was then seven months pregnant with C.H.'s child. In the first, C.H. pushed and slapped N.S., and her daughter R.S., had to step in to try and stop the attack. When police arrived, C.H. told officers he was 21 years old, and he was booked into county jail. N.S. reported C.H. was under the influence of marijuana. During the time C.H. lived with N.S., his substance use escalated.
In the second incident, C.H. confronted N.S. and her daughter at a mall. He yelled at N.S. and grabbed her by the shirt. N.S. and R.S. hid from C.H. and called the police. Once again C.H. informed officers he was 21 years old, and he was arrested and booked into county jail.
Three months later, R.S., who was 12 years old at the time, texted 911 to report that C.H. had tried to stab her and her mother. R.S. also reported that while her mother was in the bathroom, C.H. began touching her private parts and when she resisted, he threatened her. N.S. confronted C.H., who then brandished a knife and held it to N.S.'s throat with one hand while also attempting to strangle her with his other hand. C.H. was under the influence of alcohol. When officers arrived, he once again claimed to be 21 years of age and was booked into county jail.
A month later, the trial court discovered C.H. was a minor, and ordered him transferred to a juvenile detention facility. The Solano County District Attorney filed an amended section 602 petition alleging: forcible lewd acts upon a child (Pen. Code, § 288, subd. (b)(1)-count 1); assault with intent to commit a felony upon a victim younger than 18 years of age (id., § 220, subd. (a)(2)-count 2); assault with a deadly weapon (id., § 245, subd. (a)(1)- count 3); injuring a girlfriend or child's parent (id., § 273.5, subd. (a)-count 4); assault by means likely to cause great bodily injury (id., § 245, subd. (a)(4)-count 5); two counts of battery (id., § 243, subd. (e)(1)-counts 6 &7); and misdemeanor disobeying a domestic relations order (id., § 273.6, subd. (a)-count 8). It was further alleged, as to counts 4 and 5, that C.H. used a deadly weapon, a knife.
After the first incident, N.S. was granted an emergency protective order against C.H.
Two days after the wardship petition was filed, the social services department received a referral for allegations of general neglect, sexual abuse, and failure to provide. C.H. reported he had lied about his age "because he did not want to cause problems for his girlfriend, since he was underage and she was pregnant with his child," and she "knew he was fifteen years old when they began their sexual relationship." C.H. admitted to using alcohol, marijuana, and methamphetamine, but stated he last used methamphetamines four months ago, "which was right before his son was born."
The court ordered the probation and social services departments to submit a section 241.1 report to determine whether delinquency or dependency jurisdiction would best serve C.H.'s interest.
In the agreed joint assessment report, the probation and social services departments recommended delinquency jurisdiction under section 602, stating C.H.'s needs could be best served by the probation department. The departments further concluded-without elaboration-there were "no sustainable 300 W&IC issues in this matter."
The report recognized there were "undeniable concerns" regarding C.H.'s "consensual romantic relationship with an adult female" as well as the "familial circumstances," and the minor had "at a very young age" demonstrated "concerning behaviors," including "multiple delinquency reports and disclosed substance use." Indeed, "[i]n a period of three months, the youth was arrested three times for reports of domestic violence, as well as allegations of lewd acts upon a child. Since coming to the United States[,] the youth has been residing, with parent permission, with his uncles whose supervision has been minimal. Over the past year, he has been living with his former girlfriend and mother of his child, which his uncles allowed and were aware of the significant age difference. The youth has not attended school since the sixth grade and has been working to support his family.... His parents, however, wish for him to continue to reside with his uncle.... The uncle is also open to continue caring for [C.H.] and support him through the court process and moving forward. Further, the youth's reported substance use began at the age of 13 to include alcohol, marijuana, and methamphetamines. Two of three police reports note the youth was under the influence of either drugs or alcohol." Given all the circumstances, the probation department thought it could best serve C.H.'s needs. Specifically, probation could "provide the youth supervision and services to address his familial circumstances, substance use, assess his needs for other services, and refer him to the Youth Achievement Center (YAC), Probation's one stop shop for treatment programming and support."
After submission of the report, C.H. was referred for a psychological and psychosexual evaluation.
Psychologist Caroline Salvador-Moses performed the evaluation, the purpose of which was to assess C.H.'s "current cognitive, and emotional functioning, and determine his risk for sexually reoffending." She observed C.H. "is a young man who grew up in poverty, has been entrusted with great responsibility starting in childhood, did not have the opportunity to finish school," experienced "chronic threats and harassment by gangs in Mexico," and was being "exploited by a much older woman who formed a sexual relationship and conceived a child with him as a minor," who had "reportedly contributed to his substance use, placed him in a position to defend her from her ex-partner who violently assaulted him and has made threats on his life." All of which, has left him "feeling helpless with the legal troubles he has faced since having met her."
Dr. Salvador-Moses's diagnosed C.H. with borderline intellectual functioning as his "intellectual functioning falls in the extremely low range" and his "ability to learn and recall new auditory information is severely impaired"; unspecified depressive disorder; and severe posttraumatic stress disorder. She opined he had a "very low risk of offending" as well as a "very low risk of sexual reoffending."
After Dr. Salvador-Moses submitted her evaluation, the juvenile court ordered the probation department to submit an addendum report and set the matter for a contested hearing.
Despite Dr. Salvador-Moses's recommendation, the joint recommendation of the social services department and the probation department remained that C.H. could "best be served by the Solano County Probation Department under [section] 602." The report concluded that while "there is substantial concern regarding the relationship between the youth and his former adult partner, there are no sustainable [section] 300 W&I issues in this matter" because for section 300 to apply there had to be "some kind of parental neglect or absence without a plan of care" and here those facts were not present.
Specifically, the addendum report noted the evaluation identified "concerns surrounding the sexual abuse of the youth by his former adult partner and possible neglect by his parents," and therefore the social services department had completed an investigation. Although the "investigation revealed . . . the former adult partner, knowingly engaged into an inappropriate relationship with the youth, under the category of an out of home perpetrator" and the allegation of sexual abuse by N.S. against C.H. was substantiated, the fact remained N.S. was not C.H.'s "parent and was not the identified caregiver."
A child comes within the juvenile court's jurisdiction under section 300, subdivision (d) if "[t]he child has been sexually abused, or there is substantial risk that the child will be sexually abused . . . by the child's parent or guardian or a member of the child's household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse."
As to the allegations against C.H.'s parents, the social services department "found the parents ensured that a safe family member was available to oversee the youth's care while in the United States. Although this practice is not part of the American tradition, it[']s found to be culturally normal in other countries such as Mexico; therefore, a cultural component lens does not evoke punitive action against the mother and father's actions in this situation."
A child comes within the juvenile court's jurisdiction under former section 300, subdivision (b)(1) if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of the child's parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." Effective January 1, 2023, Senate Bill No. 1085 amended section 300, subdivision (b)(1) so as to divide these provisions into four subsections. (Sen. Bill No. 1085 (2021-2022 Reg. Sess.) ch. 832.)
Finally, the report addressed the concern in the evaluation about the care paternal uncle "was providing the youth in regards to standard of living and the sexual relationship between the youth and [N.S.]" The social services department "acknowledge[d]" those concerns; however, it "found the living conditions met minimum community standards and the uncle acted appropriately," in that he had "attempted to intervene but both the youth and [N.S.] continue[d] to engage into the relationship." Additionally, paternal uncle "provided a home environment for the youth as best he could, given his legal relationship and resources available to him." The social services department noted, as paternal uncle "is undocumented, it is also common that reporting crimes to the police is often not done." In conclusion, the department determined C.H. had come to the United States with his parents "having a plan of care that [he] reside [with] the paternal uncle," and therefore section 300, subdivision (g) was inapplicable.
Section 300, subdivision (g) provides, "The child has been left without any provision for support; . . . or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful."
At the hearing, the court heard from Dr. Salvador-Moses, the social worker, and the probation department.
Dr. Salvador-Moses testified and reiterated the points made in her evaluation. Further, she opined C.H. required "a great deal of support, guidance, treatment, mental health treatment because of his PTSD and depression as well." She did not think C.H. needed "sexual behavior counseling" or "sex offender treatment" but did think he needed substance abuse and trauma counseling. Although she thought paternal uncle "meant well," he did not provide C.H. with adequate protection because under his care, C.H. "ended up being manipulated, stabbed and abused-sexually abused by a much older woman." Additionally, C.H. was "not allowed to go to school," but rather had to work "to help pay for rent," and C.H. paid for his own food, clothes, personal hygiene products, and anything else he needed. Paternal uncle made no provisions for C.H.'s medical or dental care, or any sort of mental health counseling. In short, she opined paternal uncle was not "an appropriate caregiver."
The social worker testified she did not see C.H.'s parents' actions- sending him to the United States to earn money-as "particularly unusual or problematic" because "within Mexican culture sending family member[s] abroad to earn money is fairly common." That is also one of the reasons she concluded C.H.'s "case and [C.H.] should be handled in the juvenile delinquency system as opposed to the dependency system." C.H.'s parents also did not fall under section 300, subdivision (b) because a plan had been made and C.H. was provided a "minimum sufficient level of care." This meant that even though C.H. paid rent and paid for his own provisions, he had "[r]unning water, a roof over your ahead [sic], food in the cupboards, thing to eat, clothes on your back meet the minimum requirements for care."
She acknowledged paternal uncle had not called the police or notified child protective services about C.H.'s relationship with N.S. However, she stated he had "confronted" N.S. and "spoke with her about the relationship." The social worker did not find it "particularly surprising" that the uncle did not call police or child protective services as that was "not uncommon" in situations where someone is not a United States citizen.
She maintained that part of her analysis in determining whether section "600 or 300 services would be more appropriate" was taking into consideration "the cultural norms of Mexico." When asked if, "while a sexual relationship between a minor and an adult might be frowned upon by mainstream U.S. standards it might be looked upon very differently, maybe not as-not much of a big deal in Mexico and that was part of your analysis or assessment; is that correct?" She replied, "In part." More importantly, section 300, subdivision (d) was inapplicable because "in order for a petition to be filed based on sexual abuse that abuse has to be at the hands of either the parent or a legal guardian or someone who resides within the home," and none of those facts were present.
The probation officer also testified in accordance with the section 241.1 report. Namely, that she continued to recommend C.H.'s best interest would be better served if the court took jurisdiction of C.H. under section 602. She also noted, it was her understanding that in the section "600 system," the court and the probation department had the ability to "force the minor to engage" in recommended services as they would be "a part of the terms and conditions of probation," while under the section "300 system," any similarly recommended services would be voluntary and not mandatory.
After hearing argument from counsel, the court stated, "the defense is requesting that [C.H.] be subject to the dependency jurisdiction, under the Welfare and Institutions [C]ode [section] 300, [subdivisions (b)(1), (d), and (g)], whereas the probation department is asking for [C.H.] to be under the provisions of Welfare and Institutions section 602." The court then recited the language of each subdivision and determined, "In going through all the provisions of section 300, it notes 'parent or guardian.' [Defense counsel] liberally used the term 'guardian' when referencing the uncle. However, there is no legal guardianship under the terms of the Probate Code, Family Code, or Juvenile Code. And so his uncle was never appointed as the guardian. [¶] There's not even a de facto parent status, because the uncle did not assume, on a day-to-day basis, the role of parent by fulfilling [C.H.'s] physical or psychological needs. [¶] . . . [¶] Let me note that [C.H.] does not meet the criteria under Welfare and Institutions code 300 to be determined a dependent child."
The court went on to observe there were "concerns for [C.H.'s] safety. There are substance abuse issues. There's a history of sexual exploitation by the former girlfriend. And by being in the 600s, this will allow [C.H.] to receive the services that are needed to address those traumas, to understand the consequences of his actions, to receive substance abuse services and mental health services to address his trauma. [¶] The Court is going to find that, after having read the reports and considering the argument of counsel, the matter will proceed pursuant to [section 602]."
Discussion
"In California, the juvenile court's jurisdiction over a minor can be invoked in two ways: (1) by dependency petition (§ 300), which alleges the child's home is unfit due to parental abuse or neglect; or (2) by a delinquency petition, which accuses the child of either disobedience or truancy (§ 601) or the violation of a law that defines a crime (§ 602)." (In re W.B. (2012) 55 Cal.4th 30, 42; In re Marcus G. (1999) 73 Cal.App.4th 1008, 1012 (Marcus G.).) "In the broadest sense, adjudications under section 300 are 'dependency' proceedings, and adjudications under sections 601 and 602 are 'delinquency' proceedings. When the juvenile court assumes jurisdiction over a child under section 601 or 602, the minor is described as a 'ward' of the court." (In re W.B., at p. 43; Marcus G., at p. 1012.)
Although a minor may qualify as a both a dependent and a ward of the court, the Legislature has generally declared a minor cannot simultaneously be both. (§ 241.1, subd. (d); In re Ray M. (2016) 6 Cal.App.5th 1038, 1048; Marcus G., supra, 73 Cal.App.4th at p. 1012.) Where a minor appears to qualify as both a dependent and a ward, "section 241.1 sets forth the procedure the juvenile court must follow to determine under which framework the case should proceed." (In re Ray M., at p. 1048.) Section 241.1, subdivision (a), provides: "the county probation department and the child welfare services department shall . . . initially determine which status will serve the best interests of the minor and the protection of society." The two departments then make a recommendation to the juvenile court whether the child should be a dependent child or ward of the court. (§ 241.1, subds. (a) &(e); In re J.S. (2016) 6 Cal.App.5th 414, 421 (J.S.).)" 'Once the recommendations of both departments are presented to the juvenile court, it remains for the court to "determine which status is appropriate for the minor." '" (J.S., at p. 421.)
"We review the juvenile court's determination under section 241.1 regarding the designation applied to a child who qualifies as both a dependent and a ward of the court for abuse of discretion. [Citation.]' "To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice." '" (J.S., supra, 6 Cal.App.5th at p. 421.) "Throughout our analysis, we will not lightly substitute our decision for that rendered by the juvenile court. Rather, we must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings where there is substantial evidence to support them." (In re M.V. (2014) 225 Cal.App.4th 1495, 1506-1507.)
However,"' "[a] discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order." '" (In re R.G. (2017) 18 Cal.App.5th 273, 285.) Finally, we review a juvenile court's jurisdiction finding for substantial evidence. (In re E.E. (2020) 49 Cal.App.5th 195, 206.)
C.H. contends the juvenile court abused its discretion in ruling he did not meet any section 300 criteria.
The Attorney General concedes that at least as to section 300, subdivision (d), the juvenile court erred in ruling there was no evidence to support dependency jurisdiction. Specifically, the Attorney General concedes C.H. "qualified for dependency status" under subdivision (d) because the "evidence showed both that N.S. was a member of appellant's household and his parents should have known he was in danger of sexual abuse."
The Attorney General's concession is well-taken.
Under subdivision (d) of section 300, the juvenile court has jurisdiction based on sexual abuse when: "The child has been sexually abused, or there is a substantial risk that the child will be sexually abused . . . by the child's parent or guardian or a member of the child's household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse." (§ 300, subd. (d), italics added.)
Although there is no question that N.S. sexually abused C.H., the juvenile court ruled section 300, subdivision (d) did not apply because N.S. was neither C.H.'s parent nor guardian. But as the Attorney General observes, "the evidence showed . . . that N.S. was a member of [C.H.'s] household."
Pursuant to California Rules of Court, rule 5.502(22)," 'Member of the household,' for purposes of section 300 proceedings, means any person continually or frequently found in the same household as the child." Here, although N.S.'s abuse of C.H. began before he moved in with her, it is undisputed C.H. lived with N.S. for almost a year while she continued to abuse him. C.H. was living with N.S. as early as July 2021, when her exhusband stabbed him, and C.H. continued living with her until his arrest in March 2022. Therefore, at a minimum, N.S. abused C.H. for at least nine months while he lived in her home.
Additionally, the evidence shows C.H.'s parents failed to "adequately protect [C.H.] from sexual abuse" and "should have known that the child was in danger of sexual abuse." As we have recited, C.H. lived with N.S. for almost a year and had a child with her. Further, C.H. lived with N.S. despite paternal uncle's knowledge of the relationship, yet paternal uncle did nothing to stop N.S.'s abuse beyond expressing disapproval to N.S. and C.H. C.H.'s parents, in turn, were in contact with paternal uncle, N.S., and C.H. Mother was aware of her son's relationship with N.S. and that N.S. was pregnant by him, although she did not know N.S.'s exact age.
Thus, there is sufficient evidence that section 300, subdivision (d), applies. The probation and social services departments erred in opining otherwise, and the juvenile court erred in ruling otherwise. Accordingly, the court did not exercise informed discretion when it ruled the minor would be best served under section 602. We therefore must reverse and remand for the juvenile court to exercise its sound discretion in determining whether C.H. would be best served under section 300 or section 602 jurisdiction. (In re R.G., supra, 18 Cal.App.5th at p. 285.)
Given our disposition, we need not, and do not, reach any of C.H.'s other arguments, including that section 300, subdivisions (b)(1), (c) and (g) also apply and the court violated the Racial Justice Act of 2020 (Pen. Code, § 745). Notably, C.H. did not file a reply brief following the Attorney General's concession that reversal and remand is required given the evidence supporting jurisdiction under subsection (d).
Disposition
The juvenile court's order determining that jurisdiction shall be under Welfare and Institutions Code section 602 is reversed, and the matter is remanded for the court to exercise its sound discretion to determine whether dependency or delinquency jurisdiction would best serve C.H.'s interests and the protection of society.
We concur: Margulies, Acting P.J., Bowen, J. [*]
[*]Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.