Opinion
D077713
12-28-2020
In re E.B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Eu.B., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NJ15613) APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Plaintiff and Respondent.
Eu.B. (Mother) appeals the judgment declaring her minor daughter, E.B., a dependent of the juvenile court and removing her from Mother's custody. Mother contends the evidence was insufficient to support the court's jurisdictional findings and dispositional order and her due process rights were violated by the court's inadequate provision of interpretation services. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2019, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court as to E.B. under Welfare and Institutions Code section 300, subdivisions (b) and (d) alleging E.B. was not provided with a suitable home, had been sexually abused by her stepfather, and Mother had failed to adequately protect her from abuse. E.B. was taken into protective custody.
Subsequent statutory references are to the Welfare and Institutions Code.
In the detention report, the Agency explained that it had received a report from a school in Borrego Springs after a woman attempted to enroll 11-year-old E.B. in school. E.B. and her Mother had recently arrived from Guatemala. A social worker met Mother and E.B. at their home, which was only a shed with no running water. There was no kitchen and only a small cooktop connected to a propane tank. The shed was full of construction materials, trash, and food and the bathroom was "covered in mold from top to bottom." E.B.'s stepfather lived in the shed with them and when asked, E.B. recounted an incident in which her stepfather had touched her breast. After Mother learned about this incident, the stepfather had moved out for at least two months, but Mother let him return after he apologized and promised he would never again touch E.B. inappropriately. Concerned for E.B.'s safety, the social worker removed E.B. from Mother's care.
Mother initially reported that E.B.'s biological father was deceased. However, she later claimed he was alive and living in Guatemala. Despite the efforts of the Agency, it does not appear the biological father was located and he did not participate in the proceedings below.
At a detention hearing, the Mother appeared and participated with the assistance of an interpreter to interpret from English to Kanjobal, Mother's native language. The juvenile court found that the Agency had made an adequate showing E.B. was a person described by section 300, subdivisions (b) and (d), and ordered her detained in out-of-home care. The court found E.B.'s out-of-home detention was necessary due to a substantial risk to her physical health and emotional well-being and continuation of her residence with Mother would be contrary to her welfare. The court permitted "liberal" supervised visitation between E.B. and Mother and gave the social worker discretion to allow unsupervised and overnight visits.
The record refers to Mother's native Guatemalan language as both "Kanjobal," "Q'anjob'al'," and "Quanjobal." Because the record sheds no light on the appropriate spelling, we adopt the spelling "Kanjobal" as used by the juvenile court.
In the jurisdiction report, the Agency social worker noted that Mother confirmed she was still living with E.B.'s stepfather. Mother suggested that her current residence in the shed was a "typical living situation[ ]" in Guatemala. The social worker opined that Mother appeared unable to understand the impact of the hazardous living conditions on E.B.'s health and well-being. Based on these concerns, the social worker opined that it would not be in E.B.'s best interest to return to Mother's care and that she should continue her placement in out-of-home care while Mother received reunification services.
In an addendum report, the Mother told the social worker that she planned to move into a new apartment and would participate in services. Mother, who worked picking fruit, expressed frustration regarding how she would have to miss work to attend classes and court hearings. In another addendum report submitted in February 2020, the Agency noted that Mother's work schedule and the inability to find an interpreter were impairing Mother's attempts to participate in services. By February 2020, Mother had moved into a two-bedroom apartment she shared with two other families. Mother had completed an intake assessment for sexual abuse services, but the COVID-19 pandemic caused delays as in-person services were no longer possible and Mother's need for an interpreter made remote sessions difficult. By June 2020, Mother had still not completed her treatment regarding sexual abuse.
At the start of the contested jurisdiction and disposition hearing, in June 2020, the court appointed a noncertified court reporter for Mother given no certified court reporter was available. Given the COVID-19 pandemic, the hearing was held via videoconferencing. In light of those circumstances, Mother's counsel asked for a continuance to allow for an in-person hearing. Both the Agency and minor's counsel objected to a continuance and the trial court denied the request, recognizing that the circumstances were "not ideal," but that the "unique time parameters that are involved in juvenile dependency processes" warranted proceeding via videoconference.
The Agency submitted on the documentary evidence. Mother's counsel sought to question the social worker, but before she could begin, the interpreter explained that he was having trouble relaying the proceeding to Mother over the telephone. Mother was outside at work during the hearing and could not follow the proceedings. Recognizing the confusion, the court indicated that it believed Mother needed to participate via videoconference so she could understand what was happening. After discussing how to proceed with counsel, the court indicated that the hearing would proceed with Mother participating via videoconference at the Agency's office, with the interpreters for Mother and E.B. at the courtroom.
At the continued hearing on July 10, the court explained the circumstances, which it called the "perfect storm of challenges." Although a Kanjobal interpreter was present, he was not comfortable interpreting English to Kanjobal. Instead, the Spanish interpreter would interpret English to Spanish and the Kanjobal interpreter would interpret Spanish to Kanjobal. Mother, the social worker, and the two interpreters were in one courtroom, E.B. and her counsel were physically together and participating via videoconference, and Mother's counsel was also present via videoconference.
Mother's counsel began the hearing by asking the court to recuse itself on the basis that the court was biased against counsel. Mother's counsel stated that during a chambers conference, "the court was so frustrated with me that the court raised your voice, rolled your eyes, waved your arms." The court denied the request, noting that it did "express some frustration," but that it did not "feel I am biased against you or your client."
Mother's counsel then asked to continue the hearing based on concerns about communicating with Mother and ensuring the interpreters were fulfilling their duties. The court pressed counsel to provide "specific" concerns to warrant a continuance, but counsel could not provide any. Counsel merely stated that "I just know that the interpreter said it's difficult." The court denied the request.
E.B. began her testimony, but was interrupted by additional delays caused by the interpretation and technical difficulties. Mother's counsel again asked for a continuance because of her "grave concerns" regarding the quality of interpretation. After the interpreters confirmed to the court that they were interpreting the proceedings, the court allowed the hearing to proceed.
In her testimony, E.B. confirmed that before her removal, her stepfather resided in the home with her and Mother. E.B. testified that she did not tell her Mother that the stepfather had touched her inappropriately because she didn't want to "bother" Mother after working. She also testified that if anyone touched her inappropriately in the future, she would tell Mother.
On another day, the hearing continued with the same interpretation scheme, involving two different interpreters. The social worker testified regarding her concerns with E.B. returning to Mother's care. The social worker explained that Mother needed to complete her sexual abuse training and continue her parenting services. The social worker testified that Mother needed additional training because she did not understand the trauma caused by sexual abuse and how it impacts children. According to the social worker, this lack of insight placed E.B. at risk because if Mother did not understand how much impact the sexual abuse had on E.B., she would not be able to protect her from the stepfather in the future.
The Agency argued that in regard to the section 300, subdivision (b) allegation, Mother's housing situation had changed drastically but was still unstable. Regarding the section 300, subdivision (d) allegation, the Agency argued that despite efforts to avoid filing a petition, Mother allowed the stepfather to return to the home she shared with E.B., placing her at risk. Given this past behavior, the Agency contended that Mother could not be trusted to keep the stepfather out of the house until she completed additional training.
Mother argued the evidence was insufficient to make a true finding on the allegations in the petition regarding section 300, subdivision (b). Mother also contended that in regard to the stepfather and Mother's ability to protect E.B. from him, "we're in a far different place today" based on Mother's cooperation with services that eliminated the risk. Mother contended that the Agency had failed to provide Mother with adequate support and services. Mother's counsel conceded Mother needed additional treatment, but that E.B.'s safety could be protected while returning her to Mother's care.
After considering the evidence and arguments of counsel, the court indicated it could not make a true finding on the section 300, subdivision (b) because Mother's current housing situation was not similar to her situation when the petition was filed. Turning to the section 300, subdivision (d) allegation, the court found that the evidence demonstrated that the stepfather did criminally molest E.B., that Mother was informed of the incident, and that neither Mother nor E.B. had completed sufficient treatment and training to be aware of the risk of future harm and had not created a safety plan to protect E.B. from the stepfather. Thus, the court made a true finding on the section 300, subdivision (d) allegation.
The court removed E.B. from Mother's custody and placed her in foster care. The court ordered that reasonable services be provided and granted the social worker discretion to allow extended visits with Mother.
Mother timely appealed the court's orders made at the jurisdiction and disposition hearing.
In a dependency proceeding, the dispositional order constitutes a judgment and the jurisdictional findings may be reviewed in an appeal from the dispositional order. (See, e.g., In re S.B. (2009) 46 Cal.4th 529, 532; In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.)
DISCUSSION
I
Mother contends the court's jurisdictional finding under section 300, subdivision (d) was not supported by substantial evidence. She asserts there was no evidence that E.B. was suffering, or was at risk of suffering, sexual abuse. We disagree.
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. Evidence is "substantial" if it is reasonable, credible and of solid value. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Juvenile dependency proceedings are intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843; In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.) The focus of section 300 is on averting harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Although "the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824), the court may nevertheless consider past events when determining whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169-1170.) "Facts supporting allegations that a child is one described by section 300 are cumulative." (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Thus, the court "must consider all the circumstances affecting the child, wherever they occur." (Id. at p. 1048.)
Section 300, subdivision (d) provides a basis for juvenile court jurisdiction if 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 or guardian or a member of his or her 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."
Here, Mother does not dispute that the evidence establishes that E.B. was sexually abused by a member of her household. She challenges only the sufficiency of the evidence to support a finding that "E.B. remain[ed] at present risk, or imminent future risk of sexual abuse."
On appeal, Mother points to some evidence in the record that would support a finding that Mother could adequately protect E.B. from future abuse. However, it is not this court's role on appeal to reweigh the evidence, but rather to determine whether " 'it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' " (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)
The juvenile court could reasonably conclude that E.B. was at risk of future sexual abuse if returned to Mother's care. After Mother learned of the stepfather's abuse, she allowed the stepfather to remain in the same home as E.B. Following the Agency's intervention, Mother voluntarily agreed to not allow contact between E.B. and the stepfather, but then violated that plan and allowed the stepfather to return. Later, after E.B. had been removed from her care, Mother told the social worker that she intended to live by herself, but later told E.B. that stepfather recently had "beaten her up," leading her to leave him again. Although Mother had claimed she believed E.B. regarding the abuse, a service provider indicated that Mother was "heavily in denial about the sexual molest and is defensive."
This evidence—showing that Mother did not have a firm grasp on the seriousness of E.B.'s sexual molestation, combined with her repeated failure to separate herself from stepfather despite knowing of his conduct toward E.B.— is sufficient to support the court's jurisdictional finding under section 300, subdivision (d). Viewing the evidence in the light most favorable to the juvenile court's findings, we conclude substantial evidence supports the court's jurisdictional findings.
II
Mother also contends her rights to due process, effective assistance of counsel, to confront witnesses, to be present at trial, and to an interpreter were violated based on the manner in which the juvenile court conducted the jurisdiction and disposition hearing. Considering the record as a whole, we conclude the trial court did not err in allowing the hearing to proceed under the difficult circumstances and that Mother was not prejudiced by the alleged violations.
On appeal, Mother contends the California Constitution establishes a right to an interpreter that applies to her in this proceeding. Pursuant to article I, section 14 of the California Constitution, "a person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings." (Italics added.)
Despite the plain language of this section indicating it applies only to criminal proceedings, Mother provides no authority supporting her claim that this constitutional right applies to her and we see no basis for concluding that the constitutional right to an interpreter applies to juvenile dependency proceedings. "The rights and protections afforded parents in a dependency proceeding are not the same as those afforded to the accused in a criminal proceeding." (In re James F. (2008) 42 Cal.4th 901, 915 (James F.).)
Regardless, even assuming Mother had a constitutional right to a competent interpreter under a theory of due process, "[t]he harmless error analysis applies in juvenile dependency proceedings even where the error is of constitutional dimension." (In re J.P. (2017) 15 Cal.App.5th 789, 798 (J.P.); see also James F., supra, 42 Cal.4th at pp. 915-919 [rejecting structural error doctrine as applied in juvenile dependency proceedings to disregard harmless error analysis given " 'the welfare of the child is at issue and delay in resolution of the proceeding is inherently prejudicial to the child' "]; In re Christopher L. (2020) 56 Cal.App.5th 1172, 1186.) When considering whether any error was harmless in a dependency proceeding, we apply the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) and will reverse the juvenile court's decision only when it is reasonably probable the result would have been more favorable to the appealing party but for the error. (See, e.g., In re Celine R. (2003) 31 Cal.4th 45, 60 (Celine R.).)
Citing People v. Rodriguez (1986) 42 Cal.3d 1005 (Rodriguez), Mother asks this court to apply the standard for reversal found in Chapman v. California (1967) 386 U.S. 18, to her claim. However, Rodriguez was a criminal proceeding and, as discussed ante, juvenile dependency proceedings are not criminal proceedings. We follow the Supreme Court in Celine R. and other cases applying the Watson standard in juvenile dependency proceedings involving similar claims of error. (See, e.g., J.P., supra, 15 Cal.App.5th at pp. 797-798.)
In the proceedings below, although no court-certified interpreters were available, the trial court followed the correct procedure to certify interpreters. On appeal, Mother does not challenge the credentials of the interpreters or their ability to interpret. We see no error in this regard.
Mother contends that the difficulties caused by the two-level serial interpretation prevented her from following the proceedings and from communicating with her counsel. She also contends her counsel was prevented from representing her effectively due to the delays in interpretation, the inability to communicate with her client, and the inability to see the translator and witnesses on the videoconference. However, Mother offers no actual evidence to demonstrate that these difficulties prevented any communications or led to either Mother or counsel being deprived of a right to participate in the hearing.
Our review of the record leads us to conclude that although the hearing was stilted and the patience and abilities of all the participants were tested by the trying circumstances, the juvenile court ensured that all concerns were addressed to allow the hearing to proceed. The trial court granted multiple breaks to allow Mother to communicate with her counsel confidentially. When issues arose with the interpreters, the court addressed the issue and the hearing continued. When questioned, the interpreters consistently reported they were interpreting the proceedings properly or did so once admonished by the juvenile court.
The record does not reveal any incidents where any communication by Mother was completely prevented or where she did not understand the proceedings due to an error in interpretation. The record also does not suggest that Mother's counsel was prevented from effectively representing Mother. Counsel was able to cross-examine both the social worker and E.B. For reasons apparently unrelated to interpretation, Mother's counsel did not offer an opening statement and did not call Mother or any other witness to testify.
Moreover, even if we were to assume some error related to interpretation, Mother fails to establish that she was prejudiced by such an error. At most, Mother claims on appeal that she was "unable to communication [sic] with her trial attorney except through an elaborate social distancing scheme and multiply [sic] layers of ineffective interpreters." She also suggests that her counsel "complained" about the interpreters, which prevented counsel from effectively representing Mother. She contends that if she had been able to better communicate with Mother, "trial counsel could have been armed with a strong statement from [Mother] about her comprehension of the emotional harm suffered by E.B." However, Mother did not testify at the hearing. Nothing in the record suggests Mother did not testify because of issues with the interpreters. Rather, it appears counsel's tactical decisions led to the lack of testimony from Mother.
Considered altogether, the record reveals that the juvenile court was able to complete the hearing without prejudice to Mother despite the difficulties arising from the interpretation and social distancing. Although the hearing may not have been "perfect," it was sufficiently fair to not infringe on Mother's right to due process.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: AARON, J. GUERRERO, J.