Opinion
A129712
11-29-2011
In re v. R. et al., a Person Coming Under the Juvenile Court Law. LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. S.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. JV320229)
Defendant and appellant S.S. (mother) filed a notice of appeal (NOA) from the juvenile court's jurisdictional order sustaining a subsequent petition filed pursuant to Welfare and Institutions Code section 342. A week after mother filed her NOA, the juvenile court held a joint hearing, combining the 12-month review hearing on the underlying section 300 petition and a disposition hearing on the section 342 petition. At the conclusion of the joint hearing, the juvenile court entered an order setting a section 366.26 hearing. The court's order setting the section 366.26 hearing also terminated visitation and family reunification services to mother. The court also advised mother that to preserve her appellate rights to matters decided by the order setting the section 366.26 hearing, she had to file a petition for extraordinary writ. Mother did not file a writ petition.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
As more fully explained below, we conclude mother may not challenge the juvenile court's order setting the section 366.26 hearing. We further conclude that mother's appeal of the juvenile court's jurisdictional order on the section 342 petition fails as the juvenile court's jurisdictional findings are supported by substantial evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition
In June 2009, the Lake County Department of Social Services (Department) filed an original section 300 petition regarding all three of mother's children, V.R. (male, age 8 years old), S.R. (female, age 4 years old), and V.R. III (male, age 15 months). The petition alleged, pursuant to section 300, subdivision (b), that mother and father placed the children at substantial risk of suffering serious harm as a result of their abuse of controlled substances; history of domestic violence; unsafe and unhygienic living conditions; leaving children with an inappropriate caregiver; and, physical abuse by father. After the children were ordered detained, the Department filed an amended section 300 petition, adding allegations pursuant to section 300, subdivisions (d) (sexual abuse) and (i) (cruelty), that father repeatedly sexually molested S.R. and sodomized V.R.
At a continued disposition hearing held on September 8, 2009, V.R.'s maternal great aunt testified that she was present when V.R. told his mother about father sexually abusing him and his sister. The Department presented corroborating evidence on this point in the form of testimony from the social worker and V.R.'s current foster mother. Mother did not testify. Mother submitted on the recommendations in the Department's disposition report that she receive family reunification services and father be by-passed for such services under section 361.5(b)(6). In a disposition order entered after the hearing, the juvenile court declared the children wards of court and ordered their continued placement in foster care. Further, the court denied reunification services to father, pursuant to section 361.5, subdivision (b)(6), and ordered reunification services for mother, with supervised visitation as provided in the case plan. Neither parent appealed the disposition order.
Pursuant to section 361.5, subdivision (b)(6), "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, . . . [¶] . . . [¶] That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian."
The Department prepared a status report for the 6-month review hearing held on February 1, 2010. The report stated mother is enrolled in a transitional housing program administered by Inter Faith Shelter Network in Sonoma County, focusing on substance abuse recovery and maintenance. Within the program, mother currently resides in a house for single women and will move into a "Family Reunification House" when an opening arises, allowing her to house the children for visitation or on a full time basis. The report also stated the Department and mother are in agreement that, for the time being, the children should continue to receive the care and services provided by Lake County rather than transferring jurisdiction to Sonoma County. As for mother, the report notes she is in compliance with the case plan and has made "good progress towards eliminating the problems that led to the initial detention of her children." At the conclusion of the hearing, the juvenile court entered orders continuing the children in placement with visitation to mother, granting mother another 6 months of services and setting a 12-month review hearing for July 26, 2010.
Subsequent Petition Pursuant to Section 342
Prior to the scheduled 12-month review hearing on the original petition, the Department, on May 27, 2010, filed a subsequent petition pursuant to section 342 (section 342 petition), alleging that S.R. falls under section 300, subdivisions (b) (failure to protect), (d) (sexual abuse) and (i) (cruelty). The section 342 petition also alleged that V.R. and V.R. III fall under section 300, subdivision (j) (abuse of a sibling). All allegations were based on the common factual assertion that on May 21, 2010, during an unsupervised visit with the two younger children S.R. and V.R. III, mother inserted the pointed end of a pencil into S.R.'s vagina, resulting in tearing and laceration to her vaginal area.
At a hearing on June 21, 2010, mother's counsel submitted a discovery request on the molest allegations in the section 342 petition. The juvenile court set a hearing on mother's discovery motion. Additionally, the juvenile court suspended mother's visitation pending outcome of jurisdictional and dispositional hearing on the section 342 petition.
After the parties resolved all discovery issues, the juvenile court held a contested jurisdiction hearing on the section 342 petition over several days in August, 2010. Mother called Carolee Martin, a registered nurse at Sutter Lakeside Emergency Department, as a witness at the hearing. Martin testified about the sexual assault exam she conducted on S.R. at the hospital on May 21, 2010. Martin noted a linear laceration approximately one and a half inches long and erythema redness in S.R.'s vaginal area, as well as a submucosal hemorrhage (perforation of blood vessels in the mucosal tissue). Martin also noted that she could see into S.R.'s vaginal vault, which is unusual in a child of S.R.'s age. S.R.'s hymen was present but not completely closed. Martin stated that her findings were consistent with S.R.'s statement that mother "put a pencil in the hole."
Mother also called Sherri Delatorre as a witness at the hearing. Delatorre testified she was the social worker on the case until June 2010. Delatorre testified that prior to the incident in question, two of S.R.'s foster mothers reported they had seen S.R. engage in acts of sexual self-stimulating, once by sitting on a toy and moving around, and on another occasion by inserting an object into her vagina while she was in the bathroom. Delatorre also testified about the events of May 21, 2010. That day, Delatorre drove S.R. to her scheduled visit with mother. Delatorre picked S.R. up after the visit at around 1:00 p.m. Mother told Delatorre she gave S.R. a bath because S.R. was "stinking like an adult," and in the process had scraped S.R. with a pencil. According to mother, S.R. had sharpened some pencils, and her baby brother grabbed them and dumped them in the water. As mother tried to get S.R. out of the bath, mother scraped her with one of the pencils. Delatorre stated she helped S.R. to secure her seat belt before driving to mother's house, and did not smell body odor from S.R. at that time. Also, Delatorre opined that when mother handed the children over, mother's behavior was uncharacteristic. Instead of her usually calm demeanor, mother was excitable and talking so fast that Delatorre "wasn't really sure where she was going."
On the drive back to the foster home Delatorre asked S.R. a few general questions about her visit with mother, then asked, "Well, what happened with the pencil?" S.R. said, "My mom hurt me." S.R. was angry and very upset. After they got back to the foster home, S.R. agreed to show Delatorre where mom hurt her with the pencil. S.R. put her hands to her vagina and said, "in there, inside," adding, "Mom hurt me. Mom put the pencil in there." S.R. demonstrated what her mother had done by placing the pointed end of a pencil in a doll's vaginal area and moving the pencil in and out in a jabbing motion.
The Department called mother as an adverse witness at the hearing. Mother denied telling the social worker that S.R. was injured in the bathtub. Mother testified "Bubba" (V.R. III) and S.R. were coloring together on the bed before going in the bath. After a brief bath, Bubba ran back into the bedroom and dumped out the plastic box with the pencils in it. The children were still naked at this point. S.R. wanted to pick up the pencils before getting dressed. S.R. was squatting down as she picked up pencils. S.R. suddenly said, 'Ouch" but did not reply when mother asked what happened. Mother looked at S.R.'s inner thigh as well as her vaginal area, but did not see anything.
After presentation of evidence and argument of counsel, the juvenile court rejected mother's testimony as "inconsistent" "improbable" and "lacking veracity" and, based on the evidence presented, sustained the jurisdictional allegations in the section 342 petition. Also, the court terminated mother's visitation, finding that continued visitation would be detrimental to the children. The court set disposition on the section 342 petition for September 13, 2010, continued the 12-month review hearing on the original petition to the same date, and ordered the Department to prepare a supplemental 12-month review report.
The court's jurisdictional findings are reflected in the juvenile court minutes for August 17, 2010.
Joint Proceedings
On September 13, 2010, mother filed a NOA. Mother's NOA states that she appeals from the following findings and orders of the court: "Jurisdiction findings on 342 petition, 8/17/2010; Denial of visitation, 8/17/10." The joint 12-month review/disposition hearing scheduled for September 13 was continued at mother's request to September 20, 2010.
In connection with the joint hearing, the Department prepared a supplemental report as directed by the juvenile court. The report, entitled "Disposition/Twelve Month Review Report" states, under the heading "Reason for Hearing," that "[t]he matter is currently before the Court for a combined Disposition on the sustained 342 petition and a Twelve Month Status Review of the 09/08/2009 Disposition orders (on the original section 300 petition) for Family Reunification to the mother." The report states that mother has received reasonable reunification services since September 8, 2009, and that "mother's efforts were not successful in overcoming the issues necessitating out of home placement as evidenced by her willful abuse of her child [S.R.] on or about 05/21/2010."
At the joint hearing on September 20, 2010, the parties presented no additional evidence and the court entertained oral argument. Mother's counsel sought "additional reunification[ ] services to a parent on a 342 petition" pertaining specifically to sexual abuse education and prevention. Counsel for the Department argued that mother was only entitled to 6-months of services because one of the children was under the age of three at the time of removal. Also, the Department argued that mother could not show a substantial likelihood of reunification within the next six months, especially in light of the court's recently sustained findings that she sexually assaulted S.R. with a pencil.
After argument, the juvenile court adopted the findings set forth in the Department's supplemental report. The court found, inter alia, that mother had made minimal progress in mitigating the causes for placement and that there was no substantial probability that children would be returned to physical custody of mother within eighteen months of original detention if services were to be extended. The court also found that visitation with mother would be detrimental to the children. The court continued the children as wards of the court, terminated reunification services and visitation for mother, and set a section 366.26 hearing for January 10, 2011.
The court advised mother that in order to preserve her appellate rights to issues regarding the setting of the 366.26 hearing, mother must file a petition for extraordinary writ. The record reflects that the court bailiff handed mother the necessary forms to file a writ petition. Mother did not file a writ petition.
DISCUSSION
Section 366.26 provides in pertinent part: "An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: (A) A petition for extraordinary writ review was filed in a timely manner. (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits." (§ 366.26, subd.
Furthermore, "[f]ailure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section." (§ 366.26, subd. (l)(2).)
As noted above, mother failed to file a writ petition as required under section 366.26. In order to surmount this statutory bar to appellate review, mother requests that we construe her NOA as a Notice of Intent to File a Writ Petition and her opening brief as a statutory writ. However, settled principles of California law dictate that we deny mother's request.
Courts have strictly enforced section 366.26's directive that orders issued at a hearing setting a section 366.26 hearing must be reviewed by extraordinary writ. (See, e.g., In re Merrick V. (2004) 122 Cal.App.4th 235, 248 [citing cases].) The rule that a party must seek writ review to challenge a section 366.26 setting, pursuant to section 366.26, subdivision (l), "is the only way to ensure that all outstanding issues will have been reviewed by the Court of Appeal prior to the section 366.26 hearing and that it is both conducive to judicial economy and sensitive to the increasing emphasis on the importance of expeditiously achieving finality in dependency matters in the best interests of the children affected by the process. (Citation.)" (In re Tabitha W. (2006) 143 Cal.App.4th 811, 817 [explaining why "all orders made at a hearing in which a hearing under section 366.26 is ordered must be challenged by writ"].) Here, because mother failed to file a writ petition as required under section 366.26, subdivision (l), mother may not directly appeal any order of the juvenile court collateral to the setting of the section 366.26 hearing, including termination of visitation and family reunification services. (See In re Anthony B. (1999) 72 Cal.App.4th 1017, 1024 [stating that "the Legislature, by its enactment of section 366.26, subdivision (l), sought to outlaw review by appeal of all decisions made in conjunction with a setting order"] [italics added].) Accordingly, in line with well-settled case authority, we dismiss mother's appeal from the order setting the section 366.26 hearing.
As an alternative avenue to appellate review, mother suggests that we construe her NOA from the August 2010 section 342 jurisdictional hearing as a premature NOA from the September 2010 section 342 disposition hearing. However, even if we were to construe mother's NOA as prematurely filed, we conclude that the juvenile court's jurisdictional findings on the section 342 petition are supported by substantial evidence.
The rule defines a premature notice of appeal as follows: "(1) A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment. (2) The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." (Cal. Rules of Court, rule 8.104(d)(1)-(2).) The NOA filed by mother requests review of the juvenile court's jurisdictional findings and its termination of visitation.
Generally, because the jurisdictional order is interlocutory and not appealable, "any challenge to jurisdictional findings . . . [must] be raised in an appeal from the dispositional order." (In re Athena P. (2002) 103 Cal.App.4th 617, 624.)
Review of the sufficiency of the evidence to uphold juvenile dependency jurisdiction is limited to a determination of whether there is any substantial evidence to support the juvenile court's findings. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Substantial evidence is "evidence that is reasonable, credible, and of solid value." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) Under this standard of review, the whole record is examined in a light most favorable to the findings and conclusions of the juvenile court, and under deference to the lower court on issues of the credibility of the evidence and witnesses. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Tania S. (1992) 5 Cal.App.4th 728, 733.)
Here, mother asserts there was evidence S.R. had previously been sexually abused by father, so it was "virtually impossible to determine when any sexual injury may have occurred or even that the perpetrator was anyone other than the father." Also, mother asserts S.R.'s injuries on the date in question may have been self-inflicted because there was evidence S.R. had self-stimulated in the past. As well, mother asserts S.R.'s claim that she sexually assaulted S.R. with a pencil was unreliable because there was evidence S.R. had speech deficiencies. Mother contends this evidence precluded a finding by the juvenile court that she sexually abused S.R. with a pencil.
However, mother merely highlights evidence she considers in conflict with the juvenile court's finding and ignores the substantial evidence that supports it. In this regard, the social worker, Sherri Delatorre testified that after she picked up S.R. from mother's house on May 21, 2010, S.R. was angry and very upset because mother hurt her with a pencil. Back at the foster home, S.R. agreed to show Delatorre where mother hurt her. S.R. put her hands to her vagina and said, "in there, inside," adding, "Mom hurt me. Mom put the pencil in there." Any suggestion S.R. lacked the communication skills to accurately relate what mother had done is belied by the fact that S.R. demonstrated exactly what mother did to her by placing the pointed end of a pencil in a doll's vaginal area and moving the pencil in and out in a jabbing motion. Also, Delatorre testified that "in terms of basic communication," S.R. has no difficulty expressing herself. Furthermore, Carolee Martin, the nurse who conducted a sexual assault examination on S.R. on the same day as the incident in question, testified that the injuries sustained by S.R. were consistent with S.R.'s statement that mother "put a pencil in the hole." Last, mother did not testify that the injury sustained by S.R. was self-inflicted by sexual self-stimulation, or was due to a sexual assault by father: Rather, mother testified the injury occurred accidentally while S.R. was collecting pencils scattered by her baby brother. The juvenile court, however, found mother's testimony "inconsistent" "improbable" and "lacking veracity," and we may not disturb that credibility determination on appeal. (See In re Daniel G. (2004) 120 Cal.App.4th 824, 830 [noting that credibility determinations are the sole province of the trier of fact].)
In sum, based upon our review of the issues raised in mother's NOA, we conclude the record contains substantial evidence to support the juvenile court's jurisdictional finding that mother sexually abused S.R. with a pencil, as alleged in the section 342 petition.
The same substantial evidence also supports the trial court's termination of visitation. Moreover, considering the finding under section 300, subdivision (b) in the underlying petition that mother, despite learning that father sexually abused V.R. and S.R., "failed to seek counseling services, medical care, or law enforcement intervention on behalf of her victimized children," together with the egregious nature of mother's sexual assault on S.R. with a pencil, her shifting explanation as to how S.R. was injured, and her denial that she inflicted the injury, also supports the trial court's jurisdictional findings under section 300, subdivision (j) (abuse of a sibling) with respect to S.R.'s siblings. (See In re Karen R. (2001) 95 Cal.App.4th 84, 91 [noting that under the facts of the case "the juvenile court reasonably could conclude every minor in the home, regardless of gender, was in substantial danger of sexual abuse"].)
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DISPOSITION
The appeal is dismissed in part and the juvenile court's jurisdictional findings on the section 342 petition are affirmed.
Jenkins, J.
We concur:
Pollak, Acting P. J.
Siggins, J.