Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD093373.
Richman, J.
INTRODUCTION
Monica V. appeals from jurisdictional and dispositional orders finding her 15 year-old daughter, A.V., a dependent child and placing her with her maternal grandmother. Monica claims she did not voluntarily and intelligently submit the matter at the jurisdictional hearing because the court failed to advise her of her procedural rights and the consequences of her submission, in particular the likelihood that she would be listed in the state’s Child Abuse Central Index (CACI). (Pen. Code, §§ 11169, 11170.) We conclude, even assuming there was error, there is no cause for reversing the jurisdictional or dispositional orders.
Monica has also filed a separate petition for writ of habeas corpus claiming she received ineffective assistance of counsel in the proceedings below. By separate order we deny habeas relief in case no. A129604.
FACTUAL AND PROCEDURAL BACKGROUND
On December 4, 2009, A.V., then 13 years old, told her therapist that her mother had awakened her at 3:00 a.m. and berated her for two hours about not getting good enough grades in school. During Monica’s tirade she called A.V. a “bitch” and hit her several times in the head. Monica kept A.V. out of school that day. A.V. also did not eat that day because she was afraid of upsetting her mother. A.V.’s therapist reported that Monica became angry very easily, and A.V. was constantly afraid of upsetting her mother.
The next day Monica accompanied A.V. to her friend’s house. When someone inside called out, “Who’s there?” A.V. answered, “Me.” Monica considered this disrespectful, believing A.V. should have given her name. Monica thought A.V. was “giving her attitude, ” so she punched A.V. in the jaw.
A.V. was referred to the San Francisco County Human Services Agency (the Agency). On December 10, 2009, A.V. was detained and placed with her maternal grandmother. Monica objected to this placement because she claimed her mother had emotionally abused both her and A.V. A.V., however, preferred staying with her grandmother and felt safe there. She refused to visit or live with her mother for fear her mother would retaliate against her for disclosing the abuse.
During the investigation it was learned that A.V. had been cutting herself since at least May 2009 and had been seeing a therapist since September 2009 because she felt suicidal. The social worker reported seeing a scar where, a few weeks prior to the referral, A.V. had cut herself with glass and a razor.
A.V. was an above-average student, but her mother frequently pulled her out of school. When A.V. was eight years old Monica refused to allow her to attend a school field trip because of the identity of one of the parents who was chaperoning the trip. That parent, who turned out to be A.V.’s godmother, also reported seeing Monica choke A.V. with the strap of her handbag because A.V. dropped something she had been carrying.
A.V. told the social worker that when she was ten years old, after cooking dinner for herself, she accidentally spilled her plate onto the hardwood floor. To “teach her a lesson” Monica made her eat the food off the floor. Afterwards A.V. threw up.
Monica frequently told A.V. she wanted to give her up for adoption or foster care. Monica already had given up an older son for adoption through CPS.
Monica was angry after A.V. was removed from her home, which made communication with the social worker difficult. Monica admitted she was “hard” as a parent but denied being abusive. She expected her daughter to get straight A’s. She acknowledged she had discussed grades with A.V. on the night of December 3 or morning of December 4, but she claimed the conversation lasted 45 minutes, not two hours.
The maternal grandmother told the social worker that Monica needed professional help, as she had been diagnosed as a teenager with multiple personality disorder. She also told the social worker that she had heard Monica verbally abuse A.V.
There had been seven prior CPS referrals. Most were “evaluated out” and not investigated, one was unfounded, and one was inconclusive. These included referrals for alleged abuse of Sebastian, A.V.’s older brother, as well as concerns about A.V.’s welfare beginning when she was a newborn. They also included a report by Monica’s own therapist in October 2009 that Monica told her she had abused A.V. both physically and verbally. Although Monica on some level wanted to be a good mother, her therapist opined that she simply did not know how.
On December 14, 2009, the social worker filed a petition alleging A.V. fell within Welfare and Institutions Code section 300, subdivision (b) in that Monica had failed or was unable to supervise or protect A.V. and, due to her own mental illness, was unable to provide regular care. The petition separately alleged ten specific grounds, which may be categorized as follows: (1) Monica and A.V. had irreconcilable differences and A.V. no longer wanted to live with Monica; (2) Monica had a history of mental health problems and anger management problems that affected her ability to care for A.V. and required further assessment and treatment; (3) Monica used inappropriate forms of discipline; (4) Monica had a history of physically and emotionally abusing A.V., and A.V. had attempted to harm herself as a result; (5) Monica had prior CPS referrals; and (6) Monica had a criminal history that put A.V. at risk.
Statutory references, unless otherwise indicated, are to the Welfare and Institutions Code.
Monica was initially ambivalent about availing herself of reunification services and ultimately waived her right to such services. On January 13, 2010, her attorney filed on her behalf a standardized waiver form for that purpose, Judicial Council Form JV-195. Monica told a social worker that she wanted only one last visit with A.V. so she could tell A.V. she was “giving her up.” By the time of the jurisdictional hearing, Monica also wished to relinquish her parental rights, but the Agency refused to entertain that possibility because an adoptive home had not been identified.
At a settlement conference on January 27, 2010, the parties agreed on amendments to the petition, and Monica agreed to submit the matter. Specifically, they agreed that (1) Monica and A.V. had irreconcilable differences and A.V. no longer wanted to live with her mother, (2) Monica used inappropriate forms of “emotional [and] physical” discipline, and (3) Monica had prior CPS referrals.
At the time of the jurisdictional hearing A.V. remained in her grandmother’s care and was doing well. She still did not want to return to her mother’s home.
The jurisdictional hearing followed immediately after the negotiations on January 27, 2010. Before accepting their submissions, the judge gave the parents the following advice: “I want to say to both parents, you do have a right to a hearing on this matter, a trial. And that means the Department would have to come in and prove that the allegations in the petition were true, and your attorneys would have the right to cross examine any of their witnesses and present any evidence or witnesses on your behalf.” The court then asked Monica if she was willing to give up her right to a trial, and Monica said, “Yes, I am.”
The court then found true the amended allegations and found A.V. came within the purview of section 300, subdivision (b) for failure to protect. It struck the allegation about Monica’s mental illness and the additional specific grounds for jurisdiction identified above.
The court immediately proceeded to the dispositional hearing and accepted Monica’s waiver of reunification services. The court adjudged A.V. a dependent of the court and adopted a permanent plan of long-term placement in the home of A.V.’s grandmother.
Between the jurisdictional hearing and March 11, 2010, Monica evidently received notice that she had been referred to the Department of Justice (DOJ) for inclusion in the CACI. On March 11, 2010, Monica’s attorney calendared a hearing for March 16 so that Monica could ask the court to appoint a new attorney. Monica was unhappy with the language of the finding indicating that she employed “inappropriate forms of emotional and physical discipline” because it cast her in a negative light. She complained she had been “rushed into” making a decision whether to accept the Agency’s settlement offer. She had proposed a substantially similar settlement that did not refer to her disciplinary techniques being emotionally and physically abusive and did not refer to her history of prior referrals to CPS. She told the court the Agency did not respond to her offer until the day of the settlement conference and she therefore felt she had inadequate time to make an informed decision.
Of particular significance to the issues before us, Monica also wanted to dispute the Agency’s referral of her name to the DOJ for listing on the CACI. She said she had not been aware of the possibility of a CACI listing when she submitted the matter. She claimed she would have insisted on a contested hearing if she had been aware of that possibility.
Monica’s attorney told the court the CACI referral was “completely separate from the court process” and was not the consequence of her submission on the jurisdictional petition. He said the social worker was authorized to make an independent evaluation to determine if an individual’s name should be referred to CACI. The court agreed, saying it found no “fault with [the attorney’s] representation.... [L]awyers have no information or control over [CACI referrals] in this state.” The court nevertheless granted Monica’s request for new counsel―“without any disrespect to” prior counsel’s representation―citing a “trust issue” between attorney and client.
Monica next said she wanted to withdraw her submission on the jurisdictional issue. The court said, “You can’t do that today” and told her she would need to file a written motion.
Monica filed a timely notice of appeal on March 29, 2010.
DISCUSSION
Monica raises a number of issues directed toward having us reverse the jurisdictional and dispositional orders and remand the case for a new jurisdictional hearing. She is not entitled to such relief. Any prejudice she allegedly suffered by reason of errors in the dependency proceeding has been eliminated by an administrative hearing conducted in December 2010.
I. THE COURT’S FAILURE TO MAKE A MORE THOROUGH INQUIRY REGARDING MONICA’S WAIVER OF HER TRIAL RIGHTS WAS AT MOST HARMLESS ERROR
A. Considering the totality of the circumstances, there was no due process violation
Monica claims the juvenile court did not fully inform her of her hearing rights at the jurisdictional hearing and did not take express personal waivers of each of those rights. Although the court made a written finding that Monica had waived her rights, it did not expressly find that she “knowingly and intelligently” waived them. (Cal. Rules of Court, rule 5.682(f)(3).) Finally, the court never made an oral finding that she freely and voluntarily submitted the matter, although there was a written finding to that effect. (Rule 5.682(f)(5).) Monica claims these failings violated due process as well as the California Rules of Court.
All references to rules are to the California Rules of Court.
Both parties rely on In re Monique T. (1992) 2 Cal.App.4th 1372 (Monique T.), in which a mother submitted on the petition at the detention hearing, with her attorney affirming that she had been advised of her rights “to have other evidence presented and to have a contested matter.” (Id. at p. 1376.) The attorney waived, on her client’s behalf, the court’s advisement of the mother’s rights, and also relayed to the court the mother’s intention to “submit the matter on the petition.” (Ibid.) Without requiring a personal waiver by the mother, the juvenile court then said it was “satisfied that the mother understands her rights and is voluntarily waiving them.” (Ibid.)
Division Five of this District held the procedure was flawed in that the court was obligated to advise a parent of the rights he or she waives by submitting on the petition. It further held that a parent must make an “express personal waiver” of the hearing rights enumerated in rule 5.682. (Monique T., supra, 2 Cal.App.4th at pp. 1374, 1377.)
Submitting the matter on the petition in dependency cases is similar to allowing the court in a criminal case to proceed to judgment based on the preliminary examination transcript. (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.)
As in Monique T., Monica relies on the mandatory enumeration of rights contained in rule 5.682(b), which provides: “After giving the advisement required by rule 5.534, the court must advise the parent or guardian of the following rights: “(1) The right to a hearing by the court on the issues raised by the petition; [¶] (2) The right to assert any privilege against self-incrimination; [¶] (3) The right to confront and to cross-examine all witnesses called to testify; [¶] (4) The right to use the process of the court to compel attendance of witnesses on behalf of the parent or guardian; and [¶] (5) The right, if the child has been removed, to have the child returned to the parent or guardian within two working days after a finding by the court that the child does not come within the jurisdiction of the juvenile court under section 300, unless the parent or guardian and the child welfare agency agree that the child will be released on a later date.”
Rule 5.534(k)(1) requires substantially similar advisements.
In addition to expressly finding a parent “knowingly and intelligently waived” the foregoing rights (rule 5.682(f)(3)), the court must make a finding that “[t]he parent or guardian understands the nature of the conduct alleged in the petition and the possible consequences of an admission, plea of no contest, or submission.” (Rule 5.682(f)(4).) Finally, the court must find “[t]he admission, plea of no contest, or submission by the parent or guardian is freely and voluntarily made.” (Rule 5.682(f)(5).)
Monica claims the juvenile court’s advice, quoted ante, was not in full compliance with rule 5.682. She points out she did not file Judicial Council form JV 190, a written waiver of rights form. There was also no express waiver of each individual right orally on the record. She further claims the court’s preprinted form only partially fulfilled the requirements of Rule 5.682(f)(3) because it did not incorporate a phrase indicating she “knowingly and intelligently” waived her hearing rights. She notes that standardized Judicial Council form JV-412 contains the appropriate language, but the court failed to use that form.
The Agency acknowledges deficiencies in the advisements, waivers, and findings but argues that due process “is a flexible concept whose application depends on the circumstances and the balancing of various factors.” (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.) It contends a plea or submission “is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. [Citations.]” (In re Patricia T. (2001) 91 Cal.App.4th 400, 404-405; cf. People v. Howard (1992) 1 Cal.4th 1132, 1178.)
We agree and conclude that although the full mantra prescribed by rule 5.682 was not recited perfectly the departure from the required advisements and findings did not amount to a due process violation. The court did in general terms advise Monica that her submission would entail the waiver of the rights to present witnesses, to testify, and to cross-examine the Agency’s witnesses, and she expressly waived the right to a hearing. A checked box on the written jurisdictional/dispositional findings also indicates findings that Monica “submits to the allegations and has waived the right to a trial, to remain silent, to confront and cross-examine witnesses, to subpoena witnesses, understands the nature of the conduct alleged in the petition and the possible consequences of a submission. The submission is made freely and voluntarily. There is a factual basis for the submission and findings.”
Under a “totality of the circumstances” approach, we find no reason to doubt that Monica fully understood the nature of the proceedings, the rights she would sacrifice if she submitted the matter on the petition, and the direct consequences of that submission. Likewise, the written findings, while not specifically including the words “knowing and intelligent, ” do show that the court found Monica’s hearing rights were waived and the submission voluntary.
This was a negotiated disposition in which Monica was represented by appointed counsel. That attorney told the court, when Monica requested new counsel, that he had fully informed Monica of her options in response to the petition and that he spent more time with her than he usually does with clients. We therefore have added assurance that Monica’s waiver was informed and voluntary.
Monica did not complain that her submission was involuntary until nearly two months later, after she had received notice of the CACI referral. Indeed, even in this court she does not claim she was ignorant of her rights. Given all indications, we cannot deem the court’s imperfect colloquy on the matter a due process violation requiring a new jurisdictional hearing.
B. Any deficiency in the taking of Monica’s submission was not prejudicial
Even if the court’s advice were deemed inadequate, we would not find it prejudicial. Monique T. held that any error in advising the parent of her rights or taking her waiver was subject to harmless error analysis, and was in fact harmless even under the test of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Monique T., supra, 2 Cal.App.4th at p. 1377.)
Monica mistakenly asserts that Monique T. specifically held the Chapman test was applicable. Actually, the court stopped short of deciding that issue. (Monique T., supra, at pp. 1377-1378.) But even assuming the most stringent standard of prejudice were applied, we would find any error harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)
Monica does not assert that being more fully informed of her hearing rights would have caused her to insist upon an evidentiary hearing. Rather, she argues she was prejudiced primarily because if she had known about the possibility of a CACI listing she would have insisted on going to trial. Even if we accept that statement at face value, it is not enough to demonstrate prejudice. The question is not only whether Monica’s decision to submit would have been different, but whether the outcome of the proceeding would have been different. (See Monique T., supra, 2 Cal.App.4th at p. 1378.)
The purpose of the jurisdictional hearing was to determine A.V.’s fate, not to litigate the CACI issue. On the jurisdictional issue there was strong evidence that Monica’s disciplinary techniques were so extreme as to amount to physical and emotional abuse. Monica was accused not only by A.V., but also by her own mother of verbally abusing A.V. Monica’s own therapist reported she had confessed to also physically abusing A.V. A.V.’s godmother had reportedly witnessed physical abuse. This was not simply a “she said/she said” case. There were numerous prior reports of abuse and neglect. Monica had previously given up a child for adoption following the involvement of CPS. In addition, Monica expressed little desire to reunify with A.V. immediately after her detention and none by the time of the jurisdictional hearing. In fact, at the jurisdictional hearing Monica was ready to relinquish her parental rights altogether. Since Monica did not want to reunify with A.V., and A.V. did not want to live with her mother, it is difficult to see how the court would have avoided taking jurisdiction over A.V.
Monica claims on appeal that the lack of advice about a potential CACI listing “precluded [her] from pursuing a grievance” of the CACI listing. She claims she is now “merely asserting a right to an opportunity to appear and rebut the charge.” But she has not claimed that A.V. was improperly deemed a dependent child, nor has she asserted any interest in regaining custody of A.V. Her sole concern appears to be with the CACI listing.
She admitted in response to our inquiry that she has now been given an administrative hearing which gave her the opportunity to present her version of the facts and her arguments about why her conduct should not have been deemed “child abuse.” The Agency has informed us that she introduced documents at that hearing and called a witness to testify. Thus, the very basis of her claim of prejudice―the denial of a hearing on the CACI listing―has been remedied.
Besides, Monica has not given us any inkling what her version of the events might be or how such an alternative version might absolve her of the accusation of child abuse. We see no reasonable probability or possibility of an outcome more favorable to Monica, even if she had been given more complete advice about her hearing rights and had pursued her right to a contested hearing. (Chapman v. California, supra, 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. THE COURT WAS NOT REQUIRED TO ADVISE MONICA OF THE CACI LISTING AS A CONSEQUENCE OF HER SUBMISSION
Monica’s real contention, as noted, is that the court failed to advise her of the possibility of a CACI listing as a consequence of submitting on the petition. But she has not cited, and we have not located, a case holding that a court, even in the case of an admission to a dependency petition, must inform parents of the possibility that they may be listed in the CACI. Notably, rule 5.682(a) requires the court to explain the “possible consequences” of the petition only “[o]n request... of the parent.” Rule 5.682(c) requires, if the parent admits the allegations of the petition, a finding that he or she “understands... the direct consequences of the admission.” Rule 5.682(f)(4) also requires a finding by the court that the parent “understands... the possible consequences of an admission, plea of no contest, or submission.”
Monica did not ask the court to explain the “possible consequences” of her submission, so rule 5.682(a) has no application. Moreover, by analogy to the criminal context, we believe the advice of consequences in a dependency jurisdictional hearing need only include direct consequences of the admission or submission, not all possible collateral consequences. (Cf. People v. Barella (1999) 20 Cal.4th 261, 265-267, 270 [limitation on prison credits not direct consequence requiring judicial advice]; People v. Limones (1991) 233 Cal.App.3d 338, 344 [immigration consequences are collateral].)
We conclude that the CACI listing was at most a collateral consequence of the dependency jurisdictional order, and therefore not a subject of mandatory advice by the court.
A. The CACI listing procedure is administrative and independent of judicial proceedings
Monica’s argument fundamentally misconceives the nature of the CACI referral process. The CACI listing process is administrative and has no direct connection with the judicial process.
Penal Code section 11164 et seq., known as the Child Abuse and Neglect Reporting Act (CANRA), sets forth the substantive and procedural aspects of CACI listings. The CANRA identifies 38 categories of “mandated reporter[s], ” including therapists, teachers, welfare workers, police and probation officers, and social workers, who must make a report of any suspected child abuse they encounter in their professional capacities. (Pen. Code, § 11165.7, subd. (a)(1), (a)(15), (a)(21) & (a)(34), 11166, subd. (a).) Reports of serious emotional damage are optional. (Pen. Code, § 11166.05.) Any such reports must be accepted by certain public offices, including the Agency. (Pen. Code, § 11165.9.)
Agencies authorized to receive such reports must themselves, in any case they have actively investigated, report even suspected abuse to the DOJ for inclusion in the CACI: “An agency specified in Section 11165.9 shall forward to the Department of Justice a report in writing of every case it investigates of known or suspected child abuse or severe neglect which is determined not to be unfounded, other than cases coming within subdivision (b) of Section 11165.2. An agency shall not forward a report to the Department of Justice unless it has conducted an active investigation and determined that the report is not unfounded, as defined in Section 11165.12.” (Pen. Code, § 11169, subd. (a), italics added.)
This subdivision refers to “general neglect, ” which means “the negligent failure of a person having the care or custody of a child to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred.” (Pen. Code, § 11165.2, subd. (b).)
A report is “unfounded” if it “is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect, as defined in Section 11165.6.” (Pen. Code, § 11165.12, subd. (a).) “Child abuse or neglect, ” in turn, is defined as including “physical injury or death inflicted by other than accidental means upon a child by another person, sexual abuse as defined in Section 11165.1, neglect as defined in Section 11165.2, the willful harming or injuring of a child or the endangering of the person or health of a child, as defined in Section 11165.3, and unlawful corporal punishment or injury as defined in Section 11165.4.” (Pen. Code, § 11165.6.)
The finding that a report is “unfounded” is one of three statutory findings that an Agency case worker may make after completing his or her investigation. The other two are “substantiated” or “inconclusive.” (Pen. Code, § 11165.12, subds. (b) & (c).) A “substantiated” report is one “that is determined by the investigator who conducted the investigation to constitute child abuse or neglect, as defined in Section 11165.6, based upon evidence that makes it more likely than not that child abuse or neglect, as defined, occurred.” (Id., subd. (b), italics added.) An “inconclusive” finding is warranted when the report “is determined by the investigator who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect, as defined in Section 11165.6, has occurred.” (Id., subd. (c).) A CACI listing is not mandated for a parent whose child is subject to section 300 jurisdiction, although we may surmise there is substantial overlap in the two groups.
Once the information is collected it is entered into the CACI database and made available to a “broad range of third parties for a broad range of purposes, ” most of which are designed to prevent child abusers or suspected child abusers from working with children or having children placed in their homes or in their care. (Humphries v. County of Los Angeles (9th Cir. 2009) 554 F.3d 1170, 1177-1178, revd. on other grounds sub nom. Los Angeles County v. Humphries (2010) 562 U.S. __, [130 S.Ct. 1501].) The information is otherwise confidential, however, and is not available to the general public. (Pen. Code, §§ 11167.5, subd. (a), 11170, subd. (b), 11170.5, subd. (a).) The CANRA itself provides no form of review for a CACI referral.
Finally, and significantly, an agency that accesses CACI information must make an “independent assessment regarding the merits of the investigating agency’s finding of substantiated or inconclusive child abuse or severe neglect.” (Cal. Code Regs., tit. 11, § 903.) “An entity receiving CACI information shall not act solely upon CACI information or the fact that an individual is listed on CACI to grant or deny any benefit or right.” (Ibid.) (See also Pen. Code, §§ 11170, subds. (b)(10)(A) & (e)(2), 11170.5, subd. (b).)
As the foregoing procedural outline demonstrates, the CANRA envisions the CACI referral process as a strictly administrative function with no direct relationship to jurisdictional findings under section 300.
B. The government must, as a matter of due process, provide “some kind of hearing” to those designated for a CACI listing
Monica insists, relying largely on Humphries, supra, 554 F.3d at pp. 1177-1178 (Humphries), that the court was required to give her a warning that she could be referred to CACI before accepting her submission. But Humphries was not concerned with the procedure for accepting a parent’s submission on a section 300 petition, nor was it concerned with advice of the CACI listing process prior to accepting such a submission.
Humphries held only that “some kind of hearing” must be provided for a person listed on CACI to have his or her name removed from the database. (Humphries, supra, at pp. 1176, 1201.) Humphries involved a couple whose teenage daughter falsely accused them of child abuse. Subsequent criminal proceedings against them were dismissed, with the court finding the Humphries “factually innocent” of the allegations. A dependency proceeding initiated to assume jurisdiction over the couple’s two other minor children also was dismissed as “not true.” (Id. at p. 1179.) Still, the couple was unable to have their names removed from CACI because there was no procedure in place through which they could challenge the listing. (Id. at pp. 1179-1180.)
The juvenile court technically was only authorized to find the allegations either “true” or “not proved.” (Humphries, supra, 554 F.3d at p. 1182, fn. 8; rules 5.684(f)(3) and 5.684(h)(3).)
The Ninth Circuit held the complete lack of a review process violated the due process clause of the Fourteenth Amendment. (Humphries, supra, 554 F.3d at p. 1176.) At least for the Humphries, who were adversely affected in volunteer and career capacities by the listing, the CACI listing regime created “a stigma and a tangible burden on an individual’s ability to obtain a right or status recognized by state law” and therefore affected a liberty interest. (Id. at p. 1188.) Humphries held CANRA was unconstitutional because it provided no means by which the decision to include an individual’s name in the CACI listing could be reviewed and the name removed in appropriate circumstance. (Id. at pp. 1179-1180, 1200-1201.)
The court was careful to point out that reputational damage alone, with no other consequences, would be insufficient to establish a liberty interest subject to due process protection. (Humphries, supra, 554 F.3d at p. 1186; see also Burt v. County of Orange (2004) 120 Cal.App.4th 273, 283-284.)
In Burt, supra, 120 Cal.App.4th 273, the Fourth District, Division Three, likewise held that a mother whose name was referred for listing on the CACI had a sufficient interest in “familial and informational privacy” to trigger procedural due process protections, requiring a procedure for having that decision reviewed. (Id. at p. 285.) In Burt the mother was a pharmacist who suffered from migraines and took Demerol for relief. She claimed that a syringe containing Demerol had fallen out of her pocket and landed in her child’s playpen. She believed the needle may have pierced the child’s skin, so she called 911 to report that her child may have accidentally received a dose of Demerol. (Id. at p. 277.)
After observing the child, who was asymptomatic, the hospital staff concluded the amount of Demerol the child received was nontoxic. After an initial detention, two days later the child was released back to the mother’s care. (Burt, supra, 120 Cal.App.4th at p. 277.) A section 300 petition was never filed because “the minor child had not suffered, nor was there a substantial risk that the child would suffer, serious physical harm.” (Id. at p. 278.)
Two months later, the mother was notified that her name had been referred to CACI. (Burt, supra, 120 Cal.App.4th at p. 278.) The mother filed a petition for writ of administrative mandamus, to which the county’s demurrer was sustained, since no provision in the statute afforded her a right of review. (Id. at pp. 278-279.) The court of appeal reversed, finding the mother had a sufficient privacy interest in the CACI listing to require a due process hearing upon timely request. (Id. at pp. 283-285.)
But even if we assume Monica has a protected liberty or privacy interest in avoiding an inaccurate listing, neither Burt nor Humphries held that prior notice of the possibility of a CACI listing was required in a dependency jurisdiction proceeding as a matter of due process. Rather, the due process violation lay in the “lack of any meaningful, guaranteed procedural safeguards before the initial placement on CACI combined with the lack of any effective process for removal from CACI....” (Humphries, supra, 554 F.3d at p. 1200 (italics added).)
And while Humphries held that notice and “ ‘some kind of hearing’ ” must be provided, neither it nor Burt specified the exact procedural requirements of such a hearing. (Humphries, supra, 554 F.3d at p. 1201; Burt, supra, 120 Cal.App.4th at p. 286.) Thus, it was the complete absence of any mechanism for having one’s name removed from the CACI listing that made the statutory scheme unconstitutional. Here, Monica admits she was given an administrative hearing on December 1, 2010.
C. The CACI listing was not a direct consequence of Monica’s submission
Even in the criminal context, a court need only inform a defendant of the “ ‘primary and direct’ ” consequences of a guilty plea, not the “secondary, indirect or collateral consequences.” “Collateral” consequences are those which do “ ‘not “inexorably follow” from a conviction of the offense involved in the plea.’ ” (People v. Arnold (2004) 33 Cal.4th 294, 309.)
A CACI referral is not a “primary and direct consequence” of a parent’s submission on a jurisdictional petition because it proceeds on a wholly independent track. The decision to add a name to CACI is made by the social worker independently of any judicial action.
When, as in Monica’s case, notice of a CACI listing is delayed beyond the jurisdiction hearing it may appear at first glance “inexorable” for a CACI listing to follow a jurisdictional finding. But a jurisdictional finding is not co-extensive with a finding of child abuse or neglect under the CANRA, and no statute mandates a CACI listing as a “consequence” of a jurisdictional finding.
Under the CANRA, nonjudicial government employees are tasked with interpreting the meaning of “child abuse or neglect” as defined in Penal Code section 11165.6, which is akin to, but not identical with, the court’s duty in dependency proceedings to determine whether the child falls within the definition of a “dependent child of the court” under section 300. The former decision depends on whether the child has suffered nonaccidental “physical injury or death” at the hands of another, “sexual abuse, ” severe neglect, willful harm or injury, endangerment of his or her “person or health, ” or “unlawful corporal punishment or injury.” (Pen. Code, § 11165.6, 11169, subd. (a).) In determining whether a CACI listing is appropriate, the social worker interprets the definitions contained in Penal Code sections 11165.1 through 11165.6.
The focus of CACI is on identifying and maintaining an index of those who physically or sexually abuse children, whether parents or strangers. CACI makes the identity of such abusers and evidence of past misconduct available to social service agencies in later investigations of the same adult. It also makes such information available to licensing agencies in workplaces that could bring child abusers into contact with children and to adoption agencies and others who might otherwise unwittingly place children in their care.
On the other hand, the judicial role in dependency proceedings is to determine whether the child’s living situation with a parent or guardian is such that state intervention is required. In broad outline, a child may be declared a dependent of the court if he or she (a) “has suffered” or is at “substantial risk” of suffering “serious physical harm inflicted nonaccidentally” by a parent or guardian; (b) has suffered or is at “substantial risk” of suffering “serious physical harm or illness” due to the parent or guardian’s “failure or inability... to adequately supervise or protect the child” or “willful or negligent failure” to provide the child with “adequate food, clothing, shelter or medical treatment, ” including failure to provide “regular care” due to “mental illness, developmental disability, or substance abuse”; (c) “is suffering” or “is at substantial risk of suffering serious emotional damage” as a result of the conduct of the parent or guardian; (d) has been sexually abused or is at “substantial risk” of such abuse; (e) is under age five and “has suffered severe physical abuse by a parent” or anyone known to the parent to be physically abusing the child; (f) is in the care of a parent or guardian who has caused the death of another child through abuse or neglect; (g) has been abandoned by the parent; (h) has been freed for adoption; (i) has been subjected to “cruelty”; or (j) is the sibling of a child who has been abused or neglected under these same criteria. (§ 300, subd. (a)-(j).)
Though there is undoubtedly substantial overlap between those whose children are declared dependents of the court under section 300 and those who are identified as child abusers under the CANRA, the two statutory schemes have different definitions, categories, and standards, leaving room for individuals to fall within one statutory definition but not the other. For instance, a child may be declared a dependent child based on “substantial risk” of future harm (§ 300, subds. (a)-(d)), because a parent is incarcerated (id., subd. (g)), or because a parent’s “mental illness” or drug addiction interferes with his or her ability to provide for the child (id., subd. (b)). The focus in dependency proceedings is on the deficiencies in the child’s home life with a parent or guardian, not on the misconduct of the parent per se. (See Monique T., supra, 2 Cal.App.4th at p. 1376.)
Thus, it is absolutely clear that an individual may be listed on CACI even though the child he or she abused could not properly be deemed a dependent of the court (e.g., stranger abuse of which the parent or guardian was wholly unaware). It is also possible that a child could be deemed a dependent of the court because of the parent’s general neglect or inability to provide proper care, but the parent’s conduct would not amount to “child abuse” or “severe neglect” so as to warrant a CACI listing. (See Pen. Code, §§ 11165.2, subds. (a) & (b), 11165.6.) In this regard, a finding of “general neglect” by the social worker is not sufficient to warrant a CACI listing. (See fn. 7, ante.)
It is tempting, of course, to draw an analogy to sex offender registration, which is a direct consequence of conviction of certain offenses. A defendant entering a guilty plea or a slow plea to a sex offense mandating registration must be advised of that consequence. (People v. McClellan (1993) 6 Cal.4th 367, 376; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; In re Birch (1973) 10 Cal.3d 314, 322.)
But this analogy is imperfect and actually pinpoints differences that make sex offender registration a direct consequence of conviction and CACI listing a collateral consequence of a dependency proceeding. Lifetime sex offender registration is automatically required by Penal Code section 290, subdivision (c) upon conviction of specified offenses and is therefore a direct consequence of the defendant’s plea. No corollary statute makes a parent of a dependent child automatically subject to CACI listing.
Sex offender registration is also far more onerous than a CACI listing. With sex offender registration there is a continuing lifetime duty to update registration annually and with each change of address, with penal consequences for failure to comply. (Pen. Code, §§ 290.012, 290.013, 290.018.) No similar continuing duties are imposed upon a person listed on the CACI. In addition, sex offender registration constitutes a continuing stigma accessible to public scrutiny (Pen. Code, § 290.46), whereas CACI information is confidential except to the extent access is expressly allowed by statute. (Pen. Code, §§ 11167, subd. (d)(1), 11167.5, subd. (a), 11170, subd. (b), 11170.5, subd. (a).) Though no doubt stigmatizing, the more restricted availability of CACI listing information makes it a less “ignominious badge” than sex offender registration. (In re Birch, supra, 10 Cal.3d at p. 322.)
Finally, any real life consequence that may ultimately flow from the CACI listing, such as loss of access to various types of employment or loss of opportunity to adopt, will necessarily involve independent action by another agency. (Pen. Code, §§ 11170, subds. (b)(10)(A) & (e)(2), 11170.5, subd. (b); Cal. Code Regs., tit. 11, § 903.) This further identifies Monica’s CACI listing as an indirect or collateral consequence of her submission, not a direct one.
D. Any error in failing to advise Monica of CACI consequences was harmless
Even if the court should have warned Monica about the potential independent development of a CACI referral, the advice of potential consequences is merely a violation of a rule of court, not a constitutional violation. (In re S.G. (2003) 112 Cal.App.4th 1254, 1258-1259; In re Patricia T., supra, 91 Cal.App.4th at p. 407; Monique T., supra, 2 Cal.App.4th at pp. 1377-1378.) As with advice of consequences in the criminal context, any error in this regard is subject to the Watson standard of prejudice. (People v. Dakin (1988) 200 Cal.App.3d 1026, 1033.) For the reasons discussed in the following section of the opinion, any deficiency in the court’s advice was harmless error.
People v. Watson, supra, 46 Cal.2d at p. 836.
I. IN LIGHT OF THE GRIEVANCE HEARING PROVIDED BY THE AGENCY, MONICA HAS FAILED TO ESTABLISH A DUE PROCESS VIOLATION AND HAS FAILED TO ESTABLISH PREJUDICE AS A RESULT OF ANY IRREGULARITIES IN THE PROCEEDINGS
Although Burt and Humphries held a parent must be provided with some remedial hearing in which to challenge a CACI listing, neither case held that a previous jurisdictional submission must be vacated and a new jurisdictional hearing granted where the sole purpose of such a hearing would be to allow the parent to contest the CACI listing. For the reasons already discussed, we believe advice of such consequences was not required.
Even if, as Monica contends, insisting upon a jurisdictional hearing would have given her a forum in which to dispute the CACI referral, that circumstance alone does not render the CACI referral a “consequence” of submitting at the jurisdictional hearing. True, if she had prevailed on the jurisdictional issue the CACI listing would have been removed. (Cf. Pen. Code, § 11169, subd. (a) [reports subsequently determined to be “unfounded” are to be removed from CACI].) And Monica assures us she would have “pushed it on to trial” had she known of the possibility of a CACI referral.
But by insisting on a contested jurisdictional hearing, Monica would have done nothing more than to acquire a forum for litigating her CACI dispute. Indeed, she premises all of her claims of prejudice on the theory that her submission on the petition and the lack of advice about the CACI listing “precluded [her] from pursuing a grievance” of the CACI listing. She claims she is now “merely asserting a right to an opportunity to appear and rebut the charge.” But given the Agency’s provision of an administrative grievance hearing last December, these protestations of prejudice fall flat.
To warrant reversal we would have to conclude not only that Monica would have denied the allegations of the petition but also find some likelihood that the outcome would have been different if she had been afforded a contested hearing. We have already discussed why we believe the jurisdictional issue would have had no more favorable outcome for Monica had a hearing been conducted. On the CACI issue, it appears at her hearing on December 1, 2010, Monica would have been able to challenge the social worker’s conclusion that her conduct amounted to child abuse (i.e., whether it fell within the definition of Penal Code section 11165.6), which is all she seems to want to do. Given that Monica has since been provided with an alternative forum, the record of which is not before us, we cannot find any failure to warn her of the possibility of a CACI listing was a due process violation or was prejudicial.
There is no need to reverse the court’s earlier orders and grant Monica a new jurisdictional hearing. After all, A.V.’s welfare is the focus of a jurisdictional hearing. To reverse now would allow Monica to hijack a hearing intended for A.V.’s benefit and turn it into a forum for litigation of her CACI claim, even though she has no genuine disagreement with the disposition of the dependency issue.
Monica points out that she would have been provided with appointed counsel if her CACI dispute had been resolved as part of the dependency proceeding. But nothing in any of the cases Monica cites entitles her to both an administrative hearing and a new jurisdictional hearing. If litigating the issue in combination with the dependency issue coincidentally provides a parent with appointed counsel whereas a different CACI listee would have no similar legal assistance, that happenstance would appear to be a windfall—not an entitlement that must be extended to all CACI listees. In any case, Monica’s complaint that she was not provided with appointed counsel for the administrative hearing was not raised until her supplemental letter brief was filed on April 21, 2011. Because it was not raised in her opening brief, we have no occasion to decide whether appointment of counsel is a necessary element of due process in an administrative hearing to contest a CACI listing.
We need not decide whether a parent could potentially establish a right to a new jurisdictional hearing if he or she in fact had been given no opportunity to contest the CACI listing. Monica, though, has been given a less formal administrative hearing on the CACI issue, and there is no justification to extend Humphries and Burt in the manner she advocates on these facts.
IV. THE COURT DID NOT IMPROPERLY REFUSE TO HEAR AN UNNOTICED ORAL MOTION BY MONICA TO WITHDRAW HER SUBMISSION
Monica’s final claim is that the court improperly refused to hear her motion to withdraw her submission on the spot, as soon as Monica said she wanted to do so. Monica gave no notice of her motion to withdraw to the other parties, and no one representing the Agency, the father, or A.V. was present when she asked to withdraw her submission. Allowing her to withdraw her submission with no notice to or appearance by the other parties would have been highly irregular (§ 386; In re Andrew A. (2010) 183 Cal.App.4th 1518, 1528), and Monica did not comply with the rules for noticed motions or ex parte applications. (Code Civ. Proc., § 1005, subd. (b); rules 3.1200 3.1207.) The court did not abuse its discretion in refusing to hear Monica’s arguments. (Cf. People v. Braxton (2004) 34 Cal.4th 798, 820 [court’s refusal to hear motion for new trial is harmless error if record on appeal allows reviewing court to determine as a matter of law the motion lacked merit or trial court properly exercised discretion to deny it].)
Monica obliquely acknowledges the absence of the other parties might have been problematic. She claims, however, that the motion to withdraw could have been heard immediately after she and counsel appeared privately before the judge on the substitution of counsel issue. But we see nothing in the record to suggest that counsel for the Agency or A.V. would have been anywhere near the courtroom during the motion to replace counsel. The only parties present on March 16, 2010 were Monica and her attorneys.
The matter was not put on calendar by noticed motion, but rather by a simple calendar request.
Alternatively, Monica argues that the court could have or should have calendared the motion to withdraw her submission for a future date or should have put in its minute order a notation of its willingness to hear such a request. She seems to think this was required so as to make sure the new attorney understood that she wanted to withdraw her submission.
The underlying assumption seems to be that the new attorney was not present at the March 16 hearing and would have no way of knowing that Monica wanted to pursue that course in the absence of such a notation by the court. But our reading of the record shows that both her first and second attorneys were present in court on March 16.
Moreover, having just appointed new counsel for Monica, we see no duty on the court’s part to protect Monica’s interests in the manner she suggests. We have not yet reached a point where the court is required to advise counsel about the client’s wishes. Monica herself must take responsibility for informing her new attorney of her desire to withdraw her submission. There was no judicial error in this regard, much less prejudicial error.
Finally, for the reasons stated above, even if there was error in handling Monica’s oral motion to withdraw her submission, it was not prejudicial under any standard.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: Haerle, Acting P.J., Lambden, J.