In re Vaughn H.

Filed 3/12/07 In re Vaughn H. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Carmen H. appeals from a jurisdictional and dispositional order of the juvenile court adjudging her now 15-year-old son, Vaughn, a dependent child pursuant to Welfare and Institutions Code section 300, subdivision (b).[1] She contends the dependency petition failed to state a cause of action and that there was insufficient evidence for the court to assume jurisdiction over the minor. We affirm.

Factual and Procedural History

On December 5, 2005, a petition was filed by the Alameda County Social Services Agency (the agency) alleging that Vaughn and his now 12-year-old brother came within section 300. On the same day, the children were removed from the mothers care and placed in a foster home. The petition, as subsequently amended, alleged that Carmen had used inappropriate discipline with the younger brother, including twisting [his] ears to the point of leaving small scars, pinching his lips, hitting him in the head and the back of the neck, and digging her nails into the top of his head and that Vaughn is at a substantial risk of harm for the same type of inappropriate physical discipline inflicted by the mother . . . . The petition also alleged that Vaughn is angry at his mother for using the same type of inappropriate physical discipline on his brother as he had experienced in the past. The social workers jurisdictional/dispositional report stated that Carmen wants her children home with her and that she is very willing to participate in services that will assist her in appropriate parenting and discipline. Vaughn also indicated that while he was aware of his anger toward his mother when she abuses [his brother], he wanted to go home if the agency would provide him with services that help him manage and understand his anger. On January 4, 2006, the children were returned to their mothers custody and the petition was dismissed by the agency based on Carmens agreement to cooperate with informal family maintenance services.

On February 22, 2006, a second dependency petition was filed and Vaughn was again removed from Carmens custody.[2] The petition as amended alleges that there is a substantial risk that Vaughn will suffer serious physical harm as a result of Carmens failure or inability to supervise or protect him adequately. The mother and the minor Vaughn regularly engage in parent-child conflicts that have led to the minor feeling angry to the point where he could hurt himself and has wanted to hurt his mother, to wit: [] a. Following an argument on or about 2/28/2006, the minor Vaughn punched walls and threw objects before leaving the family residence. This behavior resulted from his anger and feeling of wanting to hurt his mother. He does not want to return home currently; [] b. The mothers method of talking to the minor about her expectations regarding the minors behaviors and her escalates the family conflicts. The petition also alleges that the family has received informal family maintenance services which have not been sufficient to address the severity of the family conflicts and that Vaughn reports that he intervenes in the mothers inappropriate discipline measures regarding [his younger brother].

At the jurisdictional hearing in April 2006, Carmen disputed the allegation that Vaughn was at risk of harm from her inability to adequately supervise him, but she did not challenge the sufficiency of the petition itself. The trial court admitted into evidence the social workers report and took judicial notice of the record in the prior dependency proceeding.

Carmen testified that she adopted Vaughn when he was almost three years old. Almost immediately he began having trouble in school. He was removed from a number of preschools because he was very hyper, was difficult to control and was hitting other children. His difficulties continued in elementary school. It was difficult for him to sit and be attentive in classrooms and [h]is academics suffered. He was suspended several times for inappropriate behavior in the classroom and was bullying other students. Now in ninth grade, Vaughn is on academic probation because he has failed a number of classes. Carmen testified that she has noticed in the last few months that [Vaughn] has been very vocal, very aggressive, very demeaning, belligerent. Vaughn never screamed or shouted at [her] before but his attitude has changed both at school and at home.

With regard to the February incident that led to the filing of the current petition, Carmen testified that Vaughn and his brother were arguing over shoes. When Carmen asked Vaughn to calm down and go to his room, Vaughn got very loud, very emotional. He followed her around the house repeating that he can say what he wants to say and that Carmen was stupid and ignorant. Eventually he went into his room, and she heard pounding on the door. Carmen was frightened and called 911. Vaughn went outside to wait for the police, but disappeared before they arrived.

Vaughn testified that after he was sent to his room, he was very angry and that he punched the walls and threw objects. He felt like he had to do something to stop himself from going out there and harming her. He decided to leave the house [b]ecause [he] was getting too angry and [he] didnt want to hurt her because [he] felt like [he] wanted to hurt her. There were many times in the past that he also wanted to hurt her but didnt because she is his mother. After leaving the house Vaughn stayed at a friends house and was picked up by the police after the friends mother reported that Vaughn had run away. Vaughn testified that he did not want to return home because he was doing fine where he was. He explained, I am trying to get my grades up. If I go home, its too much. Its a lot. He wanted to return home when the school year ended.

The social workers report states, There is significant conflict between the mother and the minor Vaughn. The mother and Vaughn engage in a power struggle with one another. The minors disobedient behaviors have continued to escalate and the mother has been unable to manage his behaviors. The mother has difficulty taking responsibility for how her actions impact the minors behaviors. The mother, at times, presents with a very critical view of the children although she is able to articulate the positive things about her children on an intellectual level. The mother needs assistance in understanding age appropriate expectations for adolescent development. While the social worker recommended that Vaughn be adjudged a dependent of the juvenile court and be placed under Carmens care with formal family maintenance services, counsel for the agency argued that Vaughn should not be returned home before appropriate therapeutic interventions had been provided.

Having considered all of the evidence, the trial court found that there is a substantial risk that Vaughn will suffer serious physical harm . . . not necessarily caused by his mother, but by himself as a result of his mothers inability to protect him . . . . The judge explained that at first glance [her] inclination was that this was not a case that the court should be assuming jurisdiction of but that she was concerned by Vaughns testimony. The court believed that because of love [Vaughn] was able to somehow control himself and prevent himself from hurting [Carmen], but instead began to destroy and damage his room because of an inability, perhaps, to control his anger. [] . . . [] And the concern that the court has is that if those behaviors continue when the mother is talking to him and trying to hold him accountable, if he does not want to listen and he becomes angry and he is unable to perhaps control himself in the way that he did by responding, knocking on walls, I am concerned that he may hurt his mother or his behaviors will be such that he becomes so [destructive] with his own property that he is going to hurt himself. The court explained to Carmen, I dont know if you will be able to protect him. In fact, your testimony was that he caused fear, and your response was . . . to call 911 out of fear. So there is an inability right now, it appears, . . . on the part of the mother to protect Vaughn adequately. The court also found that there is clear and convincing evidence that [Vaughn] should be removed from the care, custody, and control of [his] mother. Carmen filed a timely notice of appeal.

Discussion

1. Sufficiency of the Petition

Carmen contends that the petition fails to state a cause of action under section 300, subdivision (b), because it does not allege that Vaughn has suffered any serious injury or set forth any facts showing that he may suffer serious injury in the future or any nonaccidental conduct on the mothers part which causes injury. Carmen did not, however, challenge the sufficiency of the pleading in the trial court and thus, the agency contends, she may not raise this issue for the first time on appeal. The agency acknowledges that there is a split in authority as to whether Carmens claim is cognizable for the first time on appeal, but asserts that the correct result was reached in In re Shelley J. (1998) 68 Cal.App.4th 322 (Shelley J.), in which the court held that a mothers challenge to the sufficiency of allegations that her child came within the provisions of section 300 was waived by the failure to raise the challenge in the trial court. (Shelley J., supra, at p. 328.) The court explained that California Rules of Court, rule 39 provides that rules governing criminal cases and appeals apply to juvenile proceedings unless otherwise specified. [Citation.] Accordingly, juvenile cases are governed by Penal Code section 1012, which provides that the failure to demur to defective pleadings waives the defect. (Shelley J., supra, at p. 328.) The court disagreed with the contrary holding in In re Alysha S. (1996) 51 Cal.App.4th 393 (Alysha S.), in which the court, relying on Code of Civil Procedure section 430.80, held that a fathers contention that the petition failed to state a cause of action could be asserted for the first time on appeal. The court in Shelley J. concluded that Alysha S. was wrongly decided because: (1) the court did not recognize that rules applicable to civil cases are inapplicable to dependency cases unless expressly made applicable; (2) the rules applicable to criminal matters should apply to dependency proceedings; and (3) failure to demur to a criminal pleading waives the contention. (Shelley J.,supra, at p. 328.) We agree with the reasoning in Shelly J., as have the vast majority of appellate courts that have considered this issue. (E.g., In re James C. (2002) 104 Cal.App.4th 470, 481; In re S. O. (2002) 103 Cal.App.4th 453, 459.) If the evidence adduced at the hearing is sufficient to establish that the minor comes within section 300, we see no reason to be concerned with the sufficiency of the pleading that was not challenged below. If the evidence is insufficient, the issue is academic. Accordingly, we conclude that Carmen waived any objections to the adequacy of the petition by failing to demur in the trial court.[3]

2. Sufficiency of the Evidence

Carmen contends that there is no substantial evidence to support the jurisdictional finding because Vaughn has not suffered an injury and there is no evidence that the mothers conduct caused any risk of future injury. A finding that the minor has already suffered an injury, however, is not necessary to support jurisdiction under section 300, subdivision (b). Jurisdiction may be imposed based on a finding that there is a substantial risk that the child will suffer serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . . ( 300, subd. (b).) Here, the evidence establishes that Vaughn has struggled with anger-related issues for most of his life and that his anger is now very difficult for him to control. Although Carmen appears to be committed to her children, the evidence nonetheless establishes that she has been unable to control Vaughn and protect him from his destructive behavior. In addition to the evidence relating to the February incident, there is evidence that in the months preceding the filing of the petition Vaughn twice left the house in the middle of the night without permission, Vaughn was having severe academic troubles, and he was asked to leave the classroom for inappropriate behavior on more than nine occasions. Faced with this record, the court reasonably concluded that formal court supervision was necessary to protect Vaughn.[4]

Carmens reliance on In re David M. (2005) 134 Cal.App.4th 822 is misplaced. In that case, the court held that the record did not support jurisdictional findings under section 300, subdivision (b), because there was no evidence that the parents drug abuse caused, or created a substantial risk of causing, serious harm to [the minor] and that the record lack[ed] any evidence of a specific, defined risk of harm to the child. (134 Cal.App.4th at p. 830.) In that case [t]he evidence was uncontradicted that [the child] was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home. (Ibid.) In the present case, the court has identified the specific risk that Vaughns violent and destructive behavior and inability to control his anger may result in injury to himself or his mother. This risk is based on Vaughns prior behavior as well as his testimony that he has difficulty controlling his anger towards his mother. The risk of injury to Vaughn is based on substantial evidence.

Thus, the juvenile courts jurisdictional order must be upheld. Having established jurisdiction, the court ordered therapy to give Carmen additional parenting techniques and permit her to sort out how she may continue to parent this teenager in an appropriate way . . . . The court explained, I dont think that the informal family maintenance will work . . . and I dont think that the mother should see it as a failure on her part. I just think that right now there needs to be another type of intervention. We do not believe that the juvenile court has abused its broad discretion, but Carmens concern that the agency may be undermining her authority over her teenage son should not be taken lightly. This court can do no more than review the orders that are before it. However, we trust that all parties will be mindful not to reward manipulative behavior of the minor and will respect the latitude properly accorded parents in appropriately disciplining their children.

Disposition

The juvenile courts orders are affirmed.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise noted.

[2] A petition was also filed on behalf of the younger brother, but in March 2006 was dismissed.

[3] A parent may raise for the first time on appeal a claim that defects in a pleading were so severe as to deny due process (In re J. T. (1974) 40 Cal.App.3d 633, 639), but Carmen has not asserted any such claim. As in Shelley J., this is not a due process case where [the parent] was denied constitutionally adequate notice of allegations which might result in the court asserting jurisdiction. (Shelley J., supra, 68 Cal.App.4th at p. 328.)

[4] Although the dispositional order was entered at the same time as the jurisdictional order, Carmens notice of appeal states that she appeals from the jurisdictional findings. Because Carmen has not challenged the courts dispositional findings, we do not consider whether substantial evidence supports the finding under section 361, subdivision (c)(1), that [t]here 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.