In re Lucien S.

Filed 5/4/07 In re Lucien S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from the judgments of the Superior Court of Los Angeles County. Jan Levine, Judge. Affirmed.

Harry Zimmerman for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

_______________________________________

Pablo S. (father) appeals from the judgments declaring his children, Lucien S., Etienne S., and Jolie S., dependents of the court under Welfare and Institutions Code section 300^[1]and from the orders removing them from his custody. Father raises the following contentions: (1) the order granting rehearing was unauthorized and deprived him of due process; (2) permitting one witness to testify in chambers violated his right to confrontation; and (3) substantial evidence does not support the jurisdictional findings and dispositional orders.^[2]

We hold that the grant of rehearing was authorized and did not deprive father of due process. Father forfeited the issue pertaining to receiving testimony in chambers by failing to object to the procedure. Substantial evidence supports the findings and orders. Accordingly, the judgments and orders are affirmed.

STATEMENT OF FACTS AND PROCEDURE

Lucien, born in 1996, Jolie, born in 2001, and Etienne, born in 2003, (the children) were the children of father and Jackie H. (mother), who were married. The children lived with mother, father, and their older half-sister, C. H.,^[3]from 1994 to 2003. Father, who had been sexually abused as a young child by an older male cousin,^[4]sexually molested C. H. on several occasions when she was approximately seven years old. Fathers molestations of C. H. stopped after the paternal grandmother began living in the home, but he molested C. H. again when she was 13. C. H. did not tell mother of the molestations at that time. In 2002, C. H. disclosed the molestations to a friend. After mother discovered that father was viewing internet websites portraying sex with teens and animals, and making calls to sex-line telephone numbers, the couple separated. Thereafter, the children and C. H. lived with mother. Father had visitation with the children every other weekend. Father spied on C. H. through C. H.s bedroom window on more than one occasion and watched her making out with a boy. During a visitation in early May 2006, father left the children at his home unsupervised and went to a supermarket, where he ran into relatives of mother.

In May 2006, C. H. disclosed the abuse to mother because she realized the experiences were adversely affecting her. Three days of intense emotional upset followed the disclosure. Thereafter, C. H. became more relaxed and happier than she had previously been. On May 19, 2006, the children and C. H. were detained by the Department of Children and Family Services (the Department) in mothers custody. A dependency petition was filed.

The petition was adjudicated on June 20, 2006, by Commissioner Albert J. Garcia. After taking evidence, Commissioner Garcia ruled the Department had not met its burden of proof as to the allegations of the petition and dismissed the petition with prejudice. The Department filed a request for rehearing on June 27, 2006. All exhibits admitted in evidence were attached to the request. The reporters transcript of the June 20, 2006 proceedings was filed on June 30, 2006. The application for rehearing was timely granted by Judge Zeke Zeidler.

The case was reheard by Judge Jan Levine on July 25, 2006. The dependency court sustained allegations under section 300, subdivisions (b), (d), and (j). The children were declared dependents of the court^[5]and custody was taken from father. The children were placed in home-of-parent-mother. Reunification services were ordered for father, who was ordered to complete a parenting course and participate in individual counseling addressing sex abuse and leaving the children unattended. Father was granted monitored visits three times per week.

DISCUSSION

I

The Order Granting Rehearing Was

Authorized and Did Not Violate Due Process

Commissioner Garcia Sat As A Referee, Not As A Temporary Judge

Father contends the Department did not have the right to seek rehearing after the initial ruling by Commissioner Garcia dismissing the petition. Father reasons that the Department participated in the adjudication as though Commission Garcia was sitting as a temporary judge. By this conduct, father reasons there was a tantamount stipulation by the Department that Commissioner Garcia sat as a temporary judge whose orders were not subject to rehearing.^[6]

The Department preliminarily contends father forfeited his contention that rehearing was not authorized because he did not raise it in the dependency court. [A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this [forfeiture] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [] Dependency matters are not exempt from this rule. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) However, challenges to the dependency courts jurisdiction to order a rehearing are not forfeited by a failure to object to the order on that ground in the dependency court. (In re Mark L. (1983) 34 Cal.3d 171, 176.) As father challenges the power of the dependency court to order a rehearing, his failure to object on that ground below did not result in a forfeiture of the issue. Accordingly, we reach the merits of the claim.

Fathers contention that rehearing was unauthorized is based on the mistaken premise that Commissioner Garcia sat as a temporary judge rather than as a referee. Court commissioners perform subordinate judicial duties. (Cal. Const., art. VI, 22.) Commissioners are not authorized to preside in dependency proceedings unless they are appointed as temporary judges with the stipulation of the parties. (See Cal. Const., art. VI, 21;  246; In re Horton (1991) 54 Cal.3d 82, 89-90.) Referees, too, may be appointed as temporary judges with the stipulation of the parties. (See Cal. Const., art. VI, 21.) However, unlike a commissioner, a referee is authorized to preside in dependency proceedings without being a temporary judge: A referee shall hear such cases as are assigned to him or her by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court. ( 248.) A referees orders shall become immediately effective, subject also to the right of review as hereinafter provided, and shall continue in full force and effect until vacated or modified upon rehearing by order of the judge of the juvenile court. In a case in which an order of a referee becomes effective without approval of a judge of the juvenile court, it becomes final on the expiration of the time allowed by Section 252 for application for rehearing, if application therefor is not made within such time and if the judge of the juvenile court has not within such time ordered a rehearing pursuant to Section 253. ( 250.) If the parties do not stipulate that the referee act in the capacity of temporary judge, the referee presides as a referee, with the parties having the right of rehearing. (Jesse W. v. Superior Court (1978) 20 Cal.3d 893, 897, fn. 2; In re Roderick U. (1993) 14 Cal.App.4th 1543, 1551.)

Commissioner Garcia had a dual appointment as a referee and commissioner. (In re All Commissioners Sitting in Juvenile Court, Assignment Order, Jan. 2, 2006; see Gov. Code, 71622, subd. (d) [judicial authority to make dual appointments]; compare In re Horton, supra, 54 Cal.3d 82 [court commissioner was not also a referee].)

Father contends the Department in effect stipulated to Commissioner Garcia acting in the capacity of temporary judge by trying the merits of the case before him. The argument does not withstand scrutiny. At the outset of the case, the Department expressly refused to stipulate to Commissioner Garcia presiding as a temporary judge by filing a notice of reservation of the right to petition for a rehearing pursuant to section 252 of any orders made by a referee or commissioner in this case. (Compare In re Horton, supra, 54 Cal.3d at pp. 92-93 [conduct such as trying a case before a commissioner without objecting to the commissioner sitting as a temporary judge may be tantamount to a stipulation].) The notice stated: This reservation of the right to seek a rehearing is continuous for the duration of these proceedings . . . . The Department does not impliedly or expressly stipulate to any referee or commissioner who may hear the proceedings in this case, or any portion of the proceedings in this case, as acting in the capacity of a temporary judge. Father cites no authority for the contention that the notice of reservation of right expired because it was not renewed prior to the hearing on the petition. To the contrary, the notice of reservation of right expressly provided that the reservation of right was continuous for the duration of these proceedings. We conclude there was no express or tantamount stipulation by the department to Commissioner Garcia acting as a temporary judge. Commission Garcias dual appointment as a commissioner and referee therefore meant he presided as a referee in this action, with the parties retaining the right to seek rehearing pursuant to section 252.

The Grant of Rehearing Did Not Deprive Father of Due Process

Father contends the absence of clear standards for reviewing rehearing applications constitutes a denial of due process. The procedure is not constitutionally infirm.

Section 252 provides in pertinent part: At any time prior to the expiration of 10 days after service of a written copy of the order and findings of a referee, a minor or his or her parent or guardian or, in cases brought pursuant to Section 300, the county welfare department may apply to the juvenile court for a rehearing. That application may be directed to all or to any specified part of the order or findings, and shall contain a statement of the reasons the rehearing is requested. If all of the proceedings before the referee have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of those proceedings, grant or deny the application. If proceedings before the referee have not been taken down by an official reporter, the application shall be granted as of right.

The standard guiding the determination of a rehearing application is well-established and comports with any procedural due process right that may be implicated. The judge considering the application for rehearing must form an independent judgment from that of the referee based on an examination of the entire record. (See In re Edgar M. (1975) 14 Cal.3d 727, 735-736.) Moreover, the rehearing application contains a statement of reasons in support of the application. The application for rehearing may include all objections and arguments. ( 252.) This information is amply sufficient for forming a judgment independent from that of the referee. (In re Edgar M.,supra, 14 Cal.3d at p. 736.) The independent judgment standard is not met by merely determining whether the referees order is supported by substantial evidence. The judge must weigh the evidence that was before the referee and make his own determination thereon. The substantial evidence test . . . is a much more limited type of review and would merely require that the court determine whether the referees findings were supported by substantial evidence in light of the entire record. (In re Randy R. (1977) 67 Cal.App.3d 41, 43-44.) If, in its independent judgment, the dependency judge concludes the referees findings and order should be adopted, the application should be denied. (See In re Edgar M., supra, 14 Cal.3d at pp. 735-836.) If the judge doubts the order is correct, the application for rehearing de novo should be granted. (See In re Randy R., supra, 67 Cal.App.3d at p. 44; In re Edward B. (1979) 94 Cal.App.3d 362, 365.)

Father suggests this standard is too vague to pass constitutional muster because the judge cannot evaluate credibility on the cold transcript. Fathers argument was rejected in In re Edward B., supra, 94 Cal.App.3d at page 365: Defense counsel appear to see some constitutional objection in the fact that, in cases such as the one now before us, where the proceedings before a referee are reported and the judge, under section 252 . . . acts on a petition for rehearing solely on that transcript, the judge, not seeing or hearing the witnesses, has a limited opportunity to make an independent judgment on credibility. That contention is without merit. In passing on a petition for rehearing, the judge must, necessarily, be alert to weaknesses and inconsistencies in the testimony; unless he feels that a personal examination of witnesses would be of no value, he should, and will, grant the de novo hearing for which the code provides.^[7]

Here, the Department filed a detailed statement of reasons in support of its rehearing application, arguing the petition was proved by a preponderance of the evidence. The petition and all reports that were before the referee were submitted. A reporters transcript of the proceedings was timely prepared. This data was amply sufficient for Judge Zeidler to form an independent opinion doubting the correctness of the order and concluding a retrial would be of value. The evidence of the abuse and failure to supervise was conflicting. From the evidence, Judge Zeidler could conclude he could not adopt the referees findings and conclusions as his own. A grant of rehearing does not order a different substantive result than the result reached by the referee. It merely results in a de novo hearing of the matter before a judge, who may or may not reach a different substantive result after trial. (See  254 [rehearings are conducted by a judge and are de novo].)

Confrontation Rights

Father contends his right to confrontation was violated when C. H. was permitted to testify in chambers. Father called C. H. to testify. The dependency court asked C. H. if she was comfortable testifying in court as opposed to in chambers. (See 350, subd. (b).)^[8] C. H. answered she wanted to testify in chambers if she had to repeat her whole story. Counsel confirmed he intended to go through C. H.s whole story. The dependency court then stated C. H.s testimony would be taken in chambers with all the lawyers present and the parents would be able to see and hear the proceedings on a television monitor in the courtroom. Fathers counsel did not object.

The Department contends that father waived his objection by failing to raise it in the dependency court. We agree father forfeited the objection, and we decline to address it. (See In re S.B., supra, 32 Cal.4th at p. 1293; see also In re Sheena K. (2007) 40 Cal.4th 875, 880-888.)

Substantial Evidence Supports the Jurisdictional Findings

Father contends substantial evidence does not support the sustained allegations. The contention has no merit.

Standard of Review

In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the courts determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.] (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] [T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) [W]e must defer to the trial courts factual assessments. [Citation.] We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.)

Section 300, subdivision (b)

The dependency court sustained the allegation under section 300, subdivision (b)^[9]that on at least one occasion, father left the children alone without adequate supervision, which created a substantial risk of serious physical harm or illness. The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The third element effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.] [Citation.] Section 300, subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. [Citation.] [Citation.] (In re David M. (2005) 134 Cal.App.4th 822, 829.)

There was evidence that mothers brother and sister-in-law saw father at Vons supermarket in early May 2006 when father was supposed to be taking care of the children. The children were three, four, and nine years old. Mother asked Lucien about it and Lucien stated father had left the children home alone for a little while. Father lived in Arcadia and the supermarket was in Pasadena. Father denied this incident occurred.

Leaving three young children at home unsupervised, while going shopping in another city, is neglectful supervision that poses a substantial, inherent risk to the childrens safety and health. That this incident occurred only three months before the adjudication, combined with fathers denial of the incident, constitutes substantial evidence of a current risk to support the finding under section 300, subdivision (b).

Section 300, subdivision (d)

The dependency court sustained an allegation under section 300, subdivision (d).^[10]The petition alleged that in or about 2002, father sexually abused C. H. by fondling her breasts, and on prior occasions, by digital penetration, disrobing, simulating sexual intercourse, and kissing C. H. on the mouth. The petition alleged the sexual abuse of C. H. placed the children at risk of similar abuse.

The record contains consistent statements by C. H. describing the acts of molestation alleged in the petition to two separate social workers, the police, and, several years earlier, to her friend Cindy, as well as C. H.s testimony about the molestation at trial. In her testimony and in an interview, C. H. stated she needed to disclose the molestation because it was having a negative effect on her. C. H.s testimony constitutes substantial evidence supporting the finding that father sexually abused C. H. as alleged in the petition.

The evidence of fathers sexual abuse of C. H. demonstrates that the children are at risk of similar misconduct. Father abused C. H. multiple times when she was seven and again when she was 13 years old. It may reasonably be inferred that the hiatus was the result of the paternal grandmother moving into the home. At the time the petition was adjudicated, the children were nine, five, and three years old. The ages of the children gives rise to an inference that they are at risk of sexual abuse by father, considering the age of C. H at the time of the molestations. As a child himself, father was sexually abused by a male. Father did not receive therapy for the experience and denied molesting C. H. Two of the children are boys and one is a girl. Because the issue of fathers own abuse remains unresolved, the trial court could reasonably infer he is at risk of offending against all his children. Further, father had a known interest in child pornography and there was evidence of his recent interest in C. H.s sexuality. All the foregoing is substantial evidence that the children were currently at risk of being sexually molested by father.

Fathers reference to marital conflict, conflict between C. H. and father, and the absence of criminal charges against father is an attempt to persuade us to reweigh the evidence and conclude no sexual abuse occurred. This we will not do. Fathers argument that there is no evidence C. H. was still at risk of sexual abuse by father is beside the point, as the sustained allegation states that it is Lucien, Jolie, and Etienne who are at risk of being molested by father.

Section 300, subdivision (j)

Father contends substantial evidence does not support the finding under section 300, subdivision (j) [sibling abuse]^[11]that his sexual abuse of C. H. placed the children at risk of being sexually abused. The substantial evidence that supports the finding under section 300, subdivision (d) (fathers abuse of C. H. places the children at risk of the same abuse) also supports the finding of sibling abuse under section 300, subdivision (j).

Substantial Evidence Supports the Removal Order

Father contends the order removing the children from fathers custody is not supported by substantial evidence in that the evidence is not clear and convincing that the children were at risk in fathers care. This contention, too, has no merit.

The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. [Citations.] [Citation.] Thus, on appeal from a judgment required to be based upon clear and convincing evidence, the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellant's evidence, however strong. [Citation.] [Citation.] We have no power to judge the effect or value of the evidence, to weigh the evidence [or] to consider the credibility of witnesses . . . . [Citation.] (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581, fn. omitted.)

Section 361 provides in pertinent part: (a) In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations. . . . [] . . . [] (c) A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence [that]: [] (1)  There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody.

The dependency court made findings under section 361, subdivision (c) and ordered the children removed from fathers custody. Although the Department did not object below that the dependency court applied the wrong statutory section, the Department now contends that section 361, subdivision (c) did not apply because the children did not reside with father at the time the petition was initiated and the orders only affected fathers visitation rights. In the appeal, father does not challenge the visitation order.

The record contains family law temporary orders made June 15, 2005, awarding mother and father joint legal custody and mother primary, but not sole, physical custody. Assuming, without deciding, that removal was required under section 361, subdivision (c) to divest father of a right to custody, we conclude substantial evidence supports the removal order. The children were at or near the age when father began sexually molesting C. H. Father had unresolved issues of being sexually abused himself as a child, had a history of interest in child pornography, and a current interest in C. H.s sexuality. As father currently denied his role molesting C. H., it is not likely his home would have been safe even had he immediately begun to participate in sex abuse counseling. This is ample evidence that there was a substantial risk of sexual abuse if the children were left in fathers care and there were no reasonable means to protect the children without removing them from his care.

DISPOSITION

The judgments and orders are affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] Hereafter, all statutory references will be to the Welfare and Institutions Code.

^[2] Father failed to[s]upport [every] reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. (See Cal. Rules of Court, rule 14(a)(1)(C).) Instead of providing a record cite immediately following each reference to a matter in the record, father often lumped all record cites together after referring to multiple matters in the record. We do not condone this approach. We expect parties to comply with rule 14(a).

^[3] Born in 1989, C. H. is the daughter of mother and Michael H. As her name is fairly unique, we refer to her by her initials.

^[4] Father did not receive therapy for this abuse.

^[5] As there were no sustained allegations against mother or C. H.s father, C. H. was dismissed from the petition.

^[6] We reject the Departments contention that we have no jurisdiction to review fathers challenge to the order granting rehearing because father did not specify that order in his notice of appeal. Orders in dependency cases made prior to judgment are not appealable ( 395), but generally are reviewable in an appeal from the judgment. (E.g., In re Henry S. (2006) 140 Cal.App.4th 248, 256 [the court of appeal has broad jurisdiction to review any question of law involved in any order prior to judgment].) Father correctly identified in his notice of appeal the declaration of dependency as the order appealed from In a dependency proceeding, the declaration of dependency constitutes the judgment. (In re Megan B. (1991) 235 Cal.App.3d 942, 950.) An appeal from the declaration of dependency can bring up for review prejudgment orders and findings. (In re Henry S., supra, 140 Cal.App.4th at pp. 255-256; In re Megan B., supra, 235 Cal.App.3d at p. 950.)

^[7] Since the standard set forth in Edgar M. is not vague, there is no need to address fathers suggestion that we look to the standard applied in habeas cases.

^[8] Section 350, subdivision (b) provides: The testimony of a minor may be taken in chambers and outside the presence of the minors parent or parents, if the minors parent or parents are represented by counsel, the counsel is present and any of the following circumstances exist: [] (1)  The court determines that testimony in chambers is necessary to ensure truthful testimony. [] (2)  The minor is likely to be intimidated by a formal courtroom setting. [] (3) The minor is afraid to testify in front of his or her parent or parents.

^[9] Section 300, subdivision (b) describes a child who has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure . . . of his or her parent or guardian to adequately supervise or protect the child.

^[10] Section 300, subdivision (d) describes in pertinent part a child who has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household.

^[11] Section 300, subdivision (j) describes a child whose sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.