Filed 10/23/18 In re L.T. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Appellant K.U., mother of the minor, appeals from the juvenile court’s jurisdiction and disposition orders declaring the minor a dependent child, removing the minor from her care and placing him with the father, and terminating dependency. (Welf. & Inst. Code, §§ 300, 358, 360.)[1] Although mother’s notice of appeal says she is only appealing from the jurisdiction order, the disposition hearing is the first hearing from which an appeal can be taken in a dependency case. (See In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.) Accordingly, mother’s challenge to the jurisdiction order is raised in the appeal from the disposition order, which was heard and entered at the same time. (See In re Athena P. (2002) 103 Cal.App.4th 617, 624.)

Mother now contends the juvenile court erred in failing to obtain a personal waiver of mother’s rights. Finding no merit in her contention, we will affirm the juvenile court orders.

BACKGROUND

On September 26, 2017, the Sacramento County Department of Child, Family and Adult Services (the Department) filed a section 300 petition on behalf of the minor, alleging the minor was described by both subdivisions (a) and (b). The petition alleged the minor had suffered, or was at risk of suffering, serious physical harm due to mother’s use of excessive corporal punishment. The allegations were based on a September 21, 2017 incident wherein mother had allowed the minor to play outside without any adult supervision, and was then seen using excessive punishment, consisting of grabbing a belt and hitting the five-year-old minor at least six times on his legs, resulting in visible marks. The petition alleged that the minor’s injury was of a nature that would not ordinarily be sustained absent unreasonable acts by mother, and that mother’s inability to provide adequate care, and the pattern of physical abuse, placed the minor at risk. The petition also alleged that, in July 2017, mother had physically attacked the minor’s older sibling in a moving vehicle, with the minor in close proximity. On that occasion, mother jumped into the back seat, got on top of the sibling and pinned her down, put the sibling in a headlock, and then left the sibling by the side of the road.

When interviewed by the social worker, mother explained that the minor had been playing outside with his friends when a woman in the complex came to her door with the minor. The woman said she was driving into the apartments when the minor ran in front of her car, shooting her with a Nerf gun. Mother was afraid for the minor and, as a result, took a belt and “whooped” the minor about six times. Mother claimed she normally disciplines by yelling and threatening the minor and it had been a month since she had “whooped” him. Mother denied ever leaving a mark on the minor from physical discipline. The minor had disclosed the incident to a mandated reporter who observed a red mark on the minor’s thigh. The minor was placed in protective custody and subsequently detained from mother and released to his father.

On October 20, 2017, the parties appeared in court and mother was represented by counsel. Mother’s counsel requested a contested proceeding and the juvenile court set pretrial and trial dates.

Mother filed a pretrial statement disagreeing with the jurisdictional allegations, making a discovery request, setting forth the legal and factual issues she believed needed to be addressed, and disclosing the names of six individual witnesses she intended to call in addition to the individuals identified in the social worker’s report. Father and the minor also filed pretrial statements. At the pretrial hearing, the juvenile court noted mother had a lengthy witness list and asked if it could be shortened. Mother’s counsel said she had been discussing that topic with mother. The juvenile court ordered mother’s counsel to be prepared with offers of proof so the court could make Evidence Code section 352 determinations. Counsel for the Department assured the juvenile court that the social worker was prepared to be at the trial. The trial date was confirmed.

All parties were present (except the minor) and represented by counsel at the November 30, 2017, contested hearing. The juvenile court began by announcing that “this is the time and place set for the contested hearing.” All parties waived opening statements. The juvenile court noted that the Department had the burden of proof and it admitted the detention report and the jurisdiction/disposition report into evidence. Both reports were lengthy and contained statements by mother and witnesses regarding the alleged events. The juvenile court then asked counsel for the Department if he had any other witnesses or documents to present in his case-in-chief. Counsel replied in the negative. The juvenile court then asked the same thing of counsel for minor, father and mother. Each responded in the negative. The juvenile court noted that all sides had rested and it would hear argument. The Department reserved for rebuttal. Minor’s counsel submitted on the evidence presented and argued in favor of jurisdiction as set forth in the petition. Counsel for father submitted “as to jurisdiction, and as to disposition, and the recommendation of the Department.” Mother’s counsel objected to the juvenile court taking jurisdiction, arguing that mother admitted the incident occurred but disputed the allegation that there was a pattern of corporal punishment. In rebuttal, counsel for the Department argued it had met its burden and the juvenile court should sustain the allegations of the petition. The parties also made arguments regarding disposition.

Having reviewed the evidence, the juvenile court sustained the petition under both subdivisions (a) and (b) of section 300. It found the allegations contained in (a)(1) true by a preponderance of the evidence, but it struck the allegation that the injury was of a nature that would not ordinarily be sustained. Regarding the allegations in (b)(1), the juvenile court struck that same allegation, and also found insufficient proof of a pattern of physical abuse. The juvenile court declared the minor a dependent child of the court and terminated dependency with sole physical and legal custody to father.

Additional facts are included in the discussion as relevant to the contention on appeal.

DISCUSSION

Mother argues the juvenile court erred in failing to obtain a personal waiver of mother’s rights. She summarizes her argument as follows: “This appeal addresses the interpretation of the rules of court related to the duty of the court to inform a parent of her trial rights prior to waiving those rights, and to obtain a knowing, voluntary and intelligent waiver of those rights if a contested trial is not held. Mother requested contested proceedings before she was advised of her trial rights. After the trial court requested that her counsel narrow the expected witness list and provide offers of proof for the witnesses, counsel proceeded by argument only. Mother asserts that proceeding by argument only is a submission and therefore the trial court was required to advise her of her trial rights and obtain a proper waiver of those rights.”

Rule 5.534(g) of the California Rules of Court[2] provides: “(1) The court must advise the child, parent, and guardian in section 300 cases, and the child in section 601 or section 602 cases, of the following rights: [¶] (A) The right to assert the privilege against self-incrimination; [¶] (B) The right to confront and cross-examine the persons who prepared reports or documents submitted to the court by the petitioner and the witnesses called to testify at the hearing; [¶] (C) The right to use the process of the court to bring in witnesses; and [¶] (D) The right to present evidence to the court.” Rule 5.682(a) provides that, after giving the advisement required by rule 5.534, the juvenile court must advise the parent of the right to a hearing by the court on the issues raised in the petition.

The record reflects that, at the detention hearing, the juvenile court advised mother of her right to counsel, appointed counsel for her, and advised her of her right to a hearing. Mother’s counsel informed the juvenile court that he had discussed the matter with mother and had reviewed the petition and detention report with her. Counsel objected to detention, stating, “[m]y client understands the process and the fact that she will have an interview, which she is eager to do so she can tell the Court her side of the story.” According to the record, the parties waived full advisement of rights. It is not clear from the record whether mother’s waiver was made personally or through counsel, but it was made while mother was represented by counsel. Thus, any error was harmless. (See In re Monique T. (1992) 2 Cal.App.4th 1372, 1377-1378.)

Rule 5.682(d) and (e) provide that if a parent elects to admit the allegations in the petition, plead no contest, or submit the jurisdictional determination to the court, the juvenile court must make certain findings, including that the parent has knowingly and intelligently waived specified rights. Mother argues she agreed to submit the jurisdictional determination to the court, but the record shows otherwise.

Although the word “submit” has various meanings (In re Richard K. (1994) 25 Cal.App.4th 580, 588-589 (In re Richard K.)), the primary definition “is to yield to, to surrender or to acquiesce. (Webster’s Third New Internat. Dict. [(1986)] p. 2277.)” (Richard K., at p. 588.) In the context of the applicable rule, the word “submit” is listed along with “admit” and “plead no contest,” suggesting that the primary definition applies here. It is not uncommon for parents or minors in dependency proceedings to submit on the social worker’s report or recommendations. In such cases the parent does not dispute that the juvenile court should take jurisdiction or adjudge the minor a dependent, or contest the proposed disposition. (Id. at pp. 589-590.) The parent is also precluded from subsequent challenge to the sufficiency of the evidence to support the juvenile court’s jurisdictional findings. (Ibid.)

Such a submission is completely different from permitting the court to decide an issue on a limited and uncontested record. (In re Richard K., supra, 25 Cal.App.4th at p. 589; see also In re Tommy E. (1992) 7 Cal.App.4th 1234,1236-1237.) If counsel submits on the record, the juvenile court is still required to “ ‘weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case ha[d] been proved.’ ” (In re A.A. (2016) 243 Cal.App.4th 1220, 1236.) Submission on the record does not foreclose a subsequent challenge to the sufficiency of the evidence, either in the juvenile court or on appeal, and does not necessarily restrict further challenges to jurisdiction. (In re N.M. (2011) 197 Cal.App.4th 159, 167.) It forecloses only the presentation of additional evidence.

Here, mother requested a contested proceeding and filed a pretrial statement disagreeing with the jurisdictional allegations. The juvenile court held a contested hearing, received evidence (the detention report and the jurisdiction/disposition report), and heard arguments from the parties. Mother’s counsel argued against jurisdiction. Mother did not submit the jurisdictional determination to the court, and the requirements of rule 5.682(e) do not apply.

DISPOSITION

The orders of the juvenile court are affirmed.

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

RENNER, J.