In re Aubrey B.

Filed 10/12/06 In re Aubrey B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

Roland Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

The minor, Aubrey B., was removed from the custody of her guardians, Denise and Rodney D., after a Welfare and Institutions Code section 300 petition was filed alleging that Denise physically abused Blaire, the daughter of Rodney and stepdaughter of Denise.^[1]

The Kern County Department of Human Services (the department) filed a petition for modification seeking to terminate the guardianship established in the probate court, and the attorney for Aubrey filed a motion to terminate the guardianship. The dependency court denied the petitions. The department then filed a new petition seeking reconsideration, under the authority of Code of Civil Procedure section 1008, of the prior order claiming it had obtained further evidence of abuse by Denise and Rodney against their natural children and stepchildren. The dependency court granted the department’s petition and terminated the guardianship.

Rodney appeals, arguing the dependency court did not have evidence sufficient to justify a new hearing and did not have jurisdiction to terminate the guardianship under Code of Civil Procedure section 1008. In a separate appeal, Denise raises the same challenge. (F050084.) We affirm.

Facts & Proceedings

Denise and Rodney met F.G. and James B. through their church. F.G. was pregnant. F.G. and James had lost custody of their other children and did not want to have this child made a dependent of the juvenile court. They signed all of the appropriate documents granting legal guardianship of their child to Denise and Rodney. Aubrey was born in September of 2004, and Denise and Rodney took her home from the hospital. Legal guardianship of Aubrey by Denise and Rodney was established under the Probate Code by letters of guardianship on December 16, 2004.

Denise and Rodney were married in 1990. Each has two children from prior relationships. Rodney has two daughters, Blaine (born in 1985) and Blaire (born in 1989). Denise has two children, Megan (born in 1985) and Daniel (born in 1984).

Fifteen-year-old Blaire had been home schooled but later enrolled in regular school. She reported to her school counselor that she, her sister, and her stepsiblings had been physically and verbally abused for years. Blaire stated that most recently Denise had intentionally burned Blaire’s leg with a curling iron. The burning incident was precipitated when Blaire neglected to turn off a curling iron when she left the room. Blaine then brought Aubrey into the room. Aubrey pulled the curling iron down and was burned on her leg. Denise blamed Blaire for the burn on Aubrey and burned Blaire to show her what it felt like. Photographs were taken of the burn on Blaire’s inner thigh. When these photographs were being taken, the counselor saw additional marks on Blaire’s outer thigh. Blaire explained that she obtained these marks when Denise spanked her with an electrical cord.

Blaire told the social worker about other incidents of abuse that she and the other children had been the victims of since about the time that she was in kindergarten. She said that Megan moved out because of the abuse. Blaire described being hit with the electrical cord since age 15 on numerous occasions, too many times to remember. She also recounted being slapped, hit, and punched since age 10. In addition, Denise would tell Blaire she was worthless and make other derogatory comments to her. Denise has cut Blaire’s hair as punishment and has sewn up the collars on her shirts so she does not show any skin. Blaire said that Rodney, her father, knows of the abuse but does not do anything about it.

The social worker spoke to Denise. She admitted that she had a problem with anger. Denise admitted using the cord to hit Blaire. She said she used the electrical cord because Blaire would laugh when she hit her with a belt. Denise initially denied the curling iron incident, but then admitted that it happened. Denise admitted that she has a problem with anger and control issues but said she was currently receiving religious-oriented counseling. The social worker spoke to Denise again. At this time she admitted to administering ongoing physical and verbal abuse to all of her children since they were school aged. She stated that she would never hurt Aubrey and she wanted to have a second chance with Aubrey because she had “screwed up” with the others.

When the social worker spoke to Rodney, he began cursing nonstop. He said he knew Denise hit Blaire with an extension cord and knew about the burn incident. He has a prior misdemeanor conviction for willful cruelty to his stepson, Michael. Michael’s biological father had reported bruising on Michael that occurred following a spanking by Rodney. This led to Rodney’s conviction. Rodney expressed his view that parents should not be questioned regarding the manner in which they choose to raise their children.

On October 24, 2005, a section 300 dependency petition was filed claiming that the minor, Aubrey B., was at substantial risk of serious physical harm based on the burning, hitting with a cord, and other abuse perpetrated upon Blaire. It was also alleged there was a willful or negligent failure to protect on the part of Rodney. Aubrey was ordered detained on October 25, 2005.

On December 16, 2005, counsel for Aubrey filed a section 388 petition for modification seeking termination of the guardianship. The department stated that it intended to request termination of the guardianship pursuant to section 728.

A social study report was prepared for the section 388 modification hearing. Blaire was living with her paternal grandmother at this time. Blaine, who was an adult, was also living with the paternal grandmother. Blaine stated that Denise had always used harsh punishment on her and on Blaire. Blaine said that Denise had hit her and left bruises. The social worker’s report listed numerous referrals to child protective services regarding physical abuse. With the exception of the incident that led to Rodney’s conviction for child abuse, the referrals were either unsubstantiated or, if substantiated, Rodney and Denise had agreed to use alternative forms of discipline in the future.

The social worker concluded that the detriment of chronic abuse outweighs the benefits of a permanent plan of legal guardianship for Aubrey and that her welfare and safety is compromised in the home of the legal guardians.

The petition for modification (§ 388) and for termination of guardianship (§ 728) was heard on January 23, 2006. After a discussion among the parties, the court concluded that the burden of proof on the issue was that the moving parties must establish by clear and convincing evidence that grounds exist for removal of the child from the legal guardians and the change must be in the best interest of the child.

The court received and read the social study report, as well as the petitions. The parties argued their respective positions. The court found that there were problems with anger management and appropriate discipline. The court also gave weight to the counselor who stated that Rodney and Denise are showing commitment, dedication and progress in their attempts to change their parenting and that both express remorse for their poor parenting and appear eager to learn new and positive methods of discipline. The court relied on the fact that Rodney and Denise have had Aubrey for 15 months and it would be expected that a substantial bond had been formed. The court found that the evidence was not sufficient to support the clear and convincing standard to terminate the guardianship and that it would be in the best interest of the child to pursue the possibility of maintaining a parent-child relationship. The court denied the petition to terminate guardianship and the petition to modify.

On February 2, 2006, the department filed an application for an order shortening time to hear a motion for reconsideration of the January 23, 2006 order denying modification and termination of guardianship. The department stated that its motion for reconsideration was being made pursuant to Code of Civil Procedure section 1008. The department claimed that new evidence warranted reconsideration of the January 23, 2006 order.

Attached to the motion for reconsideration by the department was a declaration from the social worker claiming that she received a call from Aubrey’s attorney. The attorney stated that the paternal grandfather had provided her with new information regarding the physical abuse of the older children of Rodney and Denise. Based on this call, the social worker reinterviewed Blaine and Blaire and interviewed Megan for the first time.

Blaine reported that she provided most of the day-to-day care for Aubrey. Denise slept or was lying in bed resting during a large part of the day because of her back problems. Blaine said that Denise was not able to take care of Aubrey on her own. Blaine said that Denise became frustrated easily and yelled at Aubrey for minor things. Blaine reported that Denise slapped Aubrey on the hand or butt, but not too harshly. Blaine then recounted the physical abuse in the home. She was abused beginning in second grade. Denise would hit her, kick her and push her. Blaine had been knocked to the floor and kicked by Denise on several occasions. If Blaine tried to defend herself, the beating would become worse. When Blaine was in seventh or eighth grade, Denise became upset with her and wrapped her mouth and hair in duct tape. The tape was wrapped around her mouth for two or three minutes. When it was cut off, her hair had to be cut off also.

When asked if there were any other physical altercations, Blaine said that Denise had used the “choke hold” on her on several occasions. The hold cuts off the air and one cannot breathe. Blaine said that one time she passed out during the choke hold and when she came to Denise and Rodney were laughing. Blaine reported that Rodney used the choke hold on her one time. She passed out on that occasion also. She hit her face when she fell from passing out and received a cut. Blaine showed the social worker the scar from the cut. Blaine stated that she fears for Aubrey’s emotional and physical well-being.

The worker spoke to Megan, Denise’s biological daughter. Megan said the abuse in the home had occurred since the children were little. Megan explained that Blaine and Blaire received most of the abuse because Megan’s father was involved in her life and would immediately address any problems involving Megan. Megan said Rodney and Denise did not use a choke hold on her but she saw Rodney and Denise choke Blaine and Blaire. She recalled one incident when Blaine passed out. Megan was concerned about Rodney’s and Denise’s ability to fool everyone and she worried about Aubrey’s well being.

The worker spoke to Blaire. She said that when Blaine left home in August of 2005 Blaire assumed some of the duties of caring for Aubrey. Blaire was overwhelmed and fell behind in school. Blaire was punished because of her poor school work. Denise would hit her.

Blaire said that she was punished for almost anything. Denise would often use the carotid hold on her and make her pass out. Blaire found the experience to be scary but she knew it was better to let it happen because if she defended herself she would be in more trouble. Blaire said the choke hold happened a lot, but more frequently to Blaine.

The above evidence was cited as new evidence warranting reconsideration of the January 23, 2006 order denying the motion to terminate guardianship.

Counsel for Aubrey joined in the department’s motion, agreeing that the recent revelations by the children were new evidence. Aubrey’s counsel stated that the burden of proof for termination of guardianship was clear and convincing evidence. Aubrey’s counsel argued that it was in Aubrey’s best interest for the court to set aside the guardianship.

Counsel for Rodney filed a response to the motion for reconsideration. He began by stating that the department correctly asserted that Code of Civil Procedure section 1008 is the statute allowing reconsideration of the prior ruling, but he argued that the motion did not meet the requirements of that section because the department failed to produce new facts and also failed to explain why it did not produce the “new” evidence at an earlier time. Denise joined in Rodney’s response.

The department responded that new disclosures of abuse by the children that are different from the original disclosures constitute new evidence.

A social study was filed for the proposed modification hearing. The department stated that the new information demonstrates the depth and severity of the ongoing abuse that occurred in the home.

A section 342 petition was filed on February 22, 2006, adding the choking incidents to the allegations contained in the original section 300 petition.

The department filed points and authorities in support of its motion setting forth the factors that demonstrate that it would be in Aubrey’s best interest to grant the motion and terminate guardianship.

The motion was heard on March 7, 2006. The court began the hearing by stating that it had several motions before it. The court wanted to tackle the matter by beginning with the Code of Civil Procedure section 1008 motion for reconsideration. The parties agreed. The court tentatively held that recently reported incidents of abuse, in particular the choking incidents, amounted to new evidence sufficient to grant a motion for reconsideration within the meaning of Code of Civil Procedure section 1008.

Counsel for Rodney argued that, although the recently disclosed allegations could arguably be considered different, they were not new. While the evidence might be sufficient to hold a section 388 hearing, he asserted it was not sufficient to warrant holding a Code of Civil Procedure section 1008 motion for reconsideration. In addition, he claimed that there was no evidence the children were reluctant to talk; thus, the moving parties had failed to show the second prong required under Code of Civil Procedure section 1008 of due diligence.

Counsel for Denise joined in the arguments made by Rodney’s counsel. She pointed out that the children were available for investigation yet the department did not gather all of the information in a timely fashion.

Counsel for Aubrey argued that the choking incidents are very significant. In addition, she contended that when children are afraid of their parents they are not always forthright at the outset. In addition, the interview is normally focused on the precipitating incident and there was nothing that would indicate to the social worker that choking was a possible form of abuse. She claimed that this abuse is a different kind of severe physical abuse. Minor’s counsel also pointed out that the purpose in dependency court is different and the main purpose is to find the best interests of Aubrey and make sure her life is safe.

Counsel for the department stated that higher courts have made it clear to Kern County that they are not to pressure a child as part of an interview tactic. The social worker thus was not required to lead the child or pressure the child for more information than the child was willing to state at the time. Counsel stated that abuse often comes out in little bits and pieces and that children normally want to return home and are reluctant to disclose the family’s “dirty little secrets.”

The court stated that the moving party had the burden under Code of Civil Procedure section 1008 to demonstrate that a motion for reconsideration should be held. The court found that the burden had been met. The court found that the choking-related behavior toward the children constituted new evidence of a different act of abuse and the moving party could not with reasonable diligence have discovered and produced the evidence at an earlier hearing. Having found that the motion was properly before the court, the court then proceeded to determine the merits of the motion.

The court stated that it was reconsidering its ruling on the sections 388 and 728 motions on January 23 based on the evidence before the court at that time and all the evidence that has been submitted up to the time of this hearing. The court reiterated that the standard of proof was that there must be clear and convincing evidence that there is a change of circumstance that requires the court to take some action in the best interests of the child.

The department argued that the family was broken and Aubrey should not be a part of it. Counsel for Aubrey argued that the situation in the home does not have any level of assurance that Aubrey would be safe. Counsel stated that the family is shattered and it is not in Aubrey’s best interest to remain a part of the family.

Rodney argued that the court should not take a position that he and Denise can never parent a child. He claimed that they have gone to counseling, have made an effort to change, and are continuing to make efforts to change. He said that he has been forthright in admitting the abuse to their children and he is ready to move on. He argued that he and Denise are the only parents that Aubrey has ever known.

Denise argued that she has regularly attended counseling sessions. She is committed and dedicated to making progress. She has been totally honest in admitting her faulty parenting and is willing to do whatever is necessary to continue as Aubrey’s guardian.

The court terminated the guardianship. It stated:

“Having in mind the burden which must be met in order to terminate a guardianship in light of the -- I am considering all the factors too. I am considering factors that relate both to the best interests of the child, health, safety, and welfare of the child, history of abuse by one parent or any other person seeking custody, nature and amount of contact.

“I am also considering the factors which are set forth in Welfare & Institutions Code Section 728, and that’s referenced as Rule 1496.2 Subdivision (b), existing relationship between the minor and the guardian, the child’s medical, developmental, educational, mental, and emotional status, social history of the guardian including any prior referrals for child abuse or neglect, an assessment of the ability of the guardian to meet the child’s needs, and the guardian’s understanding of the legal and financial rights and responsibilities of guardianship.

“I am just reciting some of these things as the type of factors the Court is considering in considering all the circumstances.

“And, in considering all the evidence, I do find that there is clear and convincing evidence that there is a change of circumstance in light of the physical injury, physical discipline that’s being imposed on the other children of these guardians, not only the history of physical discipline including the most recent example of the hair dryer to teach -- or the hot curling iron to teach the older girl a lesson when she was accused of hurting the small child but also and even more disturbingly the new evidence about the parents and especially the mother engaging in choking-type activity which would deprive the children of oxygen or blood flow creates very strong evidence which meets the burden of clear and convincing evidence that there is a change of circumstances that does require this Court to take action in the best interests of the child.”

The court dismissed the dependency petition. A new section 300 petition was filed against the biological parents of Aubrey, and Aubrey was detained.

Discussion

Code of Civil Procedure section 1008 is the law governing applications for reconsideration in the trial courts to modify or revoke a prior court order. In its moving papers, the department stated that its motion for reconsideration was being filed pursuant to this section. Rodney filed opposition papers to the motion, but began by stating that the department had correctly asserted that Code of Civil Procedure section 1008 is the statute allowing reconsideration. Denise joined in Rodney’s opposition papers.

Rodney contends the court did not have jurisdiction under Code of Civil Procedure section 1008 to reconsider its previous ruling because that section is not applicable in a juvenile dependency proceeding. Because the court was without jurisdiction to hear the motion under Code of Civil Procedure section 1008, Rodney asserts that the jurisdictional error is void and reversible.

Code of Civil Procedure section 1008 does not apply in dependency proceedings. (In re Marriage of Hobdy (2004) 123 Cal.App.4th 360, 370.) Section 385 provides that “[a]ny order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.” “Once a petition has been filed, the juvenile court has exclusive jurisdiction over custody of the child--specifically including any guardianship proceedings. (Welf. & Inst. Code, §§ 304, 728, subds. (a), (f); Cal. Rules of Court, rule 1429.1(a).)” (In re Catherine H. (2002) 102 Cal.App.4th 1284, 1289.)

Section 728 gives the juvenile court the authority to terminate a Probate Code guardianship at any stage in the dependency proceedings. “Section 728 becomes operative when the child ‘is the subject of a petition filed under Section 300.’ (§ 728, subd. (a).) The court may hear a motion to terminate a Probate Code guardianship under section 728 at ‘any regularly scheduled hearing held in [the dependency] proceedings or at any subsequent hearing concerning the dependent child .’ (§ 728, subd. (a).) A child is ‘the subject of a petition filed under Section 300’ as soon as the dependency petition is filed. (§ 728, subd. (a).)” (In re Merrick V. (2004) 122 Cal.App.4th 235, 253, brackets in original.)

Although it appears that Code of Civil Procedure section 1008 was not the proper statutory authority on which to proceed on a motion for reconsideration, the juvenile court did not lack fundamental jurisdiction because it had jurisdiction to hear a motion to terminate a Probate Code guardianship under section 728. “Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.]” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.)

At the hearing, Denise and Rodney argued factually that the motion should not be heard or granted, but did not make any argument regarding the jurisdiction of the court. In fact Rodney stated that although the evidence might be sufficient to warrant a hearing under section 388, it was not sufficient to warrant a reconsideration hearing under Code of Civil Procedure section 1008 because this latter section also required a showing of due diligence.

Not having disputed both that Code of Civil Procedure section 1008 was the proper vehicle for a motion for reconsideration, and that the power to terminate a guardianship was within the general powers of the court, Rodney cannot now seek to reverse the orders upon the ground of lack of jurisdiction. (Kristine H. v. Lisa R. (2005) 37 Cal.4th 156, 163.) “‘”’The principle opposing such action is one of estoppel in the interest of a sound administration of the laws whereby the regularity or even validity of an act procured by one himself cannot be raised--not that the act is valid, for it may not be, and estoppel does not make valid the thing complained of, but merely closes the mouth of the complainant.’”’” (Id. at pp. 163-164.)

The application of estoppel depends on considerations of public policy. (Kristine H. v. Lisa R., supra, 37 Cal.4th at p. 165.) It would contravene the public policy favoring the prompt resolution of dependency proceedings (In re Marilyn H. (1993) 5 Cal.4th 295, 307) to allow Rodney and Denise to agree that Code of Civil Procedure section 1008 is the correct vehicle for a motion for reconsideration in the juvenile court and then allow them to challenge the order as void for want of jurisdiction on appeal. This is particularly true when they have not claimed any lack of notice, not claimed any error in the appropriate burden of proof, and when the proper vehicles for a motion for reconsideration were before the court in the form of a section 388 motion and a section 728 motion. In addition Rodney attempted to utilize Code of Civil Procedure section 1008 to his benefit when he argued that it had the additional requirement of due diligence and the department did not show due diligence.

Rodney is estopped from challenging the utilization of Code of Civil Procedure section 1008 as the vehicle for the motion for reconsideration of the January 23, 2006 order denying termination of guardianship.

Next, Rodney argues that the department did not set forth changed circumstances or new evidence warranting a hearing under section 388 and did not demonstrate due diligence would not have revealed the information at a previous time.

We disagree with Rodney and agree with the trial court that the recent revelation of the choking incidents was new evidence warranting a motion under section 388. The case of In re Jessica C. (2001) 93 Cal.App.4th 1027 is on point. In Jessica C. the juvenile court found that allegations of sexual abuse contained in a petition were not proved. A second petition was filed; it contained a new set of allegations of sexual abuse. On appeal, the father claimed that the second petition relitigated the same claims as the original petition. The appellate court disagreed and stated that “New disclosures of child abuse, substantively different from previous disclosures, do constitute new evidence.” (Id. at p. 1039.) The court noted that victims of sexual abuse may not make complete disclosures of the extent of abuse initially, and that new disclosures constituted new evidence of different acts of abuse from those previously litigated. (Id. at pp. 1039-1040.)

We find no reason to distinguish between subsequent disclosures of child abuse from disclosures of sexual abuse. In both cases the child may be reluctant to initially disclose all of the abuse. The hands of the court should not be tied when subsequent disclosures of new and different abuses are discovered. This is particularly true in the context of dependency proceedings. Such proceedings are fast paced and, unlike a criminal case or a trial in a regular civil matter where discovery occurs over a long period of time before the case comes to trial, dependency proceedings are initiated quickly and facts evolve and are discovered over the entire course of the proceedings. In addition, the juvenile court would be doing a disservice to a minor if it ignored new revelations of abuse merely because the minor chose not to disclose all of the abuse during the initial interview process.

Rodney argues that the allegations of the petition were inadequate because they were conclusory and failed to show that a hearing would promote the best interests of Aubrey.

Upon receipt of a 388 motion the juvenile court is required to undertake an adjudicative process involving two distinct stages or steps. The first step requires the court to make a preliminary determination based upon a review of the paperwork, as to whether a hearing of the motion is warranted. If it appears from the motion papers “that the best interests of the child may be promoted by the proposed change of order the court shall order that a hearing be held.” (§ 388.) The first stage of review, therefore, is a determination that some benefit may be promoted by the review. “[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.” (In re Heather P. (1989) 209 Cal.App.3d 886, 891, emphasis added.) The moving party need only make a prima facie showing to trigger the right to proceed to a full hearing. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.)

Contrary to Rodney’s assertion, counsel for the minor made a lengthy analysis in her points and authorities discussing Aubrey’s best interests. While there was nothing to show that Aubrey had been the subject of abuse, there was an abundance of evidence, as argued by Aubrey’s counsel, to demonstrate that it would not be in Aubrey’s best interest to be placed in a family that is not capable of providing her a safe home. In addition, the department argued that in view of the length of abuse to the other children, it believed that Denise and Rodney cannot maintain a violence-free parenting style and the best interest of Aubrey would be served by terminating the guardianship.

Rodney argues that the new evidence did not relate to the minor’s “present circumstances” as required by sections 388 and 728 because it was dated and pertained to the other children.

The “present circumstances“ were that based on new evidence it was shown that Rodney and Denise had very serious and ongoing issues regarding their ability to raise children.

Disposition

The judgment is affirmed.

_______________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

____________________________________

LEVY, J.

____________________________________

GOMES, J.

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^[1] Unless otherwise noted all further code references are to the Welfare and Institutions Code.