Andrew K. v. Sup. Ct.

Filed 2/28/07 Andrew K. v. Sup. Ct. CA3

NOTTOBEPUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

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This writ proceeding arises due to the Sutter County juvenile courts failure to comply with California Rules of Court applicable to the jurisdictional hearing in this dependency proceeding.

Andrew K. (father) and Brittany G. (mother), the parents of N.K. (the minor), seek an extraordinary writ to vacate juvenile court orders denying reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. (Cal. Rules of Court, rule 8.452; further rule references are to the California Rules of Court, and further section references are to the Welfare and Institutions Code.)

They contend the jurisdictional findings and dispositional orders must be reversed because, at the jurisdictional hearing, the juvenile court failed to comply with the requirement to advise them of their rights and make certain findings before accepting their submission of the matter on the issue of jurisdiction.

We agree the court erred. However, as we will explain, the court already had advised father and mother of their rights and the potential consequences of the dependency proceeding, they were represented by counsel at the jurisdictional hearing, and the totality of the circumstances demonstrates that their submission of the matter on the issue of jurisdiction was both voluntary and intelligent. Accordingly, we shall deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2006, a petition was filed in Sutter County, alleging the two-month-old minor had suffered serious physical harm inflicted nonaccidentally upon the minor by his parent ( 300, subd. (a)); the minor had suffered serious physical harm as a result of the willful or negligent inability or failure of a parent to adequately protect and supervise the minor and to provide adequate medical treatment for the minor ( 300, subd. (b)); the minor, under the age of five, had suffered severe physical abuse by a parent ( 300, subd. (e)); the parent caused the death of another child through abuse or neglect ( 300, subd. (f)); and the minors sibling had been abused and there was a substantial risk that the minor would be abused ( 300, subd. (j)).

Specifically, the petition alleged: On February 26, 2006, mother noticed the two-month-old minors arm was red and he cried when she touched it. Nevertheless, mother failed to obtain medical treatment for the minor until February 28, when a doctor examined him and discovered he had a fractured elbow. Earlier, at two weeks of age, the minor had suffered a laceration in the back of his mouth which, according to father, occurred when father put his finger in the minors mouth to see if he was hungry. The minors three-week-old sibling had died a year before after being diagnosed with bleeding to the brain, a cracked skull, and retinal hemorrhaging. Father gave three versions of how the sibling was injured: One version was that the sibling wiggled out of fathers arms onto the carpeted floor; the second version was that father dropped the sibling out of his infant carrier; the third version was that father picked up the sibling when he awoke crying, and the baby kicked against fathers stomach causing the baby to fall out of fathers arms. A doctor reported that the siblings injuries were inconsistent with fathers story and were indicative of Shaken Baby Syndrome. Father had extreme anger and behavior issues as a juvenile, and mother had been endangered as a child due to her parents chronic substance abuse.

Detective Dave Marshall, who investigated the injury to the minor in this case, reported that a doctor who examined the minor stated that fathers explanation for the elbow fracture was not possible because the amount of force needed to create the fracture was extreme and the mechanism of the injury was inconsistent with fathers story. The doctor opined the injury was not accidental. X-rays revealed the minor had suffered another fracture, a lower left leg tibial spiral facture, estimated to have occurred when he was two to three weeks old. The petition was amended to allege this injury.

At the detention hearing, mother and father were represented by separate counsel. The juvenile court read the petition to mother and father, and advised them of their right to a hearing to determine whether the allegations in the petition were true, at which they could confront and examine witnesses and present evidence on their own behalf. The court also informed mother and father that, if it took jurisdiction over the minor following a jurisdictional hearing, the matter would be set for a dispositional hearing at which the court would decide whether reunification services would be offered to them and whether the minor would be returned to their care.

The matter was continued a number of times for their attorneys to complete discovery and investigation, and because mother and father, who had moved to Siskiyou County, were having transportation problems.

At the jurisdictional hearing, the attorneys for mother and father informed the court that the parties would submit on the reports the issue of jurisdiction and were asking that the case be transferred to Siskiyou County for disposition. Mothers attorney explained: Inasmuch as there still appears to be criminal investigations going forward, its inappropriate to have either parent[] testify under oath in this case; therefore, they would have to submit it on the facts. Counsel and the court then discussed whether the matter should be transferred to Siskiyou County for disposition, after which the court deemed the matter submitted, sustained the allegations, and transferred the matter to Siskiyou County.

The dispositional report filed by the social services agency in Siskiyou County recommended reunification services be denied. Meanwhile, mothers attorney filed a petition to modify the jurisdictional order ( 388), and fathers attorney filed a petition for writ of mandate in this court, both of which sought to vacate the jurisdictional findings based on alleged inadequacies in the advisement and waiver of rights. Fathers writ petition was summarily denied. (Andrew K. v. Superior Court (Nov. 3, 2006, C054028) [nonpub. order].)

At the dispositional hearing, the Siskiyou County juvenile court denied the petition for modification, concluding that to do otherwise would require transferring the matter back to Sutter County to vacate the jurisdictional findings, which would not be in the minors best interest. The attorneys for mother and father then moved to reopen the jurisdictional hearing based on a claim of ineffective assistance of counsel, asserting the parents were not properly advised of their rights at the jurisdictional hearing. They also noted the court did not make proper findings that the parents had entered knowing and intelligent waivers of their rights. The juvenile court denied this motion as well.

The juvenile court denied reunification services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.

DISCUSSION

Mother and father correctly contend the Sutter County juvenile court did not comply with the jurisdictional hearing requirement to advise them of their rights and to make required findings before accepting their submission on the issue of jurisdiction.

Rule 5.682(b) states that, at the jurisdictional hearing, the juvenile court must advise parents of their right to a hearing on the issues raised by the petition, to assert the privilege against self-incrimination, to confront and cross-examine witnesses, and to compel the attendance of witnesses on their own behalf.^[1] If the parent admits the petitions allegations or enters a submission on the question of jurisdiction, the court must find the parent has knowingly and intelligently waived those rights (rule 5.682(f)(3)) and understands the nature of the conduct alleged in the petition and the possible consequences of a submission (rule 5.682(f)(4)). The court must also find that the submission was made freely and voluntarily. (Rule 5.682(f)(5).)

At the jurisdictional hearing in this case, the juvenile court did not advise mother and father of their hearing rights and did not obtain an express waiver of these rights. The court also failed to make explicit findings that the parents understood the allegations in the petition and the possible consequences of their submitting on the reports the issue of jurisdiction over the minor. This was error.

Mother and father correctly point out that their submissions must be set aside unless the record affirmatively shows that they were entered voluntarily and intelligently under the totality of the circumstances. In other words, even though the juvenile court did not make the advisements and explicit findings required at the jurisdictional hearing, the submission will not be overturned if the record demonstrates the parents were aware of, and voluntarily gave up, their rights with the understanding the court could take jurisdiction over the minor and they might be denied reunification services and lose custody of the minor. (In re Patricia T. (2001) 91 Cal.App.4th 400, 404-405; In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.)

As we will explain, our examination of the entire record satisfies us that mother and father understood their rights and voluntarily gave them up in submitting the case with the understanding that the court would take jurisdiction over the minor and could deny them reunification services and keep the minor out of their custody.

Although the juvenile court failed to advise them of rights and consequences at the jurisdictional hearing, the court had previously given the parents advisements in those respects at the detention hearing when it recited the allegations of the petition and told them they were entitled to a hearing to determine whether the allegations were true. The court also informed them that at the hearing on the truth of the charges, they would have a right to see and question the witnesses who made the allegations and the right to present witnesses and evidence on their own behalf. In addition, the court explained to them that if, following the hearing, it took jurisdiction over the minor, a dispositional hearing would follow at which the court would decide whether reunification services would be offered. It was explained to them that, if a case plan was ordered, they would have six months to attempt to reunify with the minor. Also, during a discussion at the jurisdictional hearing about transferring the matter for disposition, reference was made to the fact that the social services agency in Sutter County did not feel services should be offered to mother and father, and that it was concerned a transfer might result in their receiving services against [the] better judgment of the agency.

Moreover, at the jurisdictional hearing, in fact throughout the proceedings, mother and father each were represented by counsel who had obtained discovery and undertaken investigation in the matter prior to the jurisdictional hearing. Ordinarily, counsel would have fulfilled their professional duties as attorneys by advising mother and father regarding the evidence against them, their rights to an evidentiary hearing, the unlikely prospect of prevailing at such a hearing without the parents testifying, and the perils of their testifying. Indeed, at the jurisdictional hearing, mothers attorney explained to the court, in the presence of mother and father, that [i]nasmuch as there still appears to be criminal investigations going forward, its inappropriate to have either parent[] testify under oath in this case; therefore, they would have to submit it on the facts. The court and counsel, again in the parents presence, made it evident that the submission would result in the court taking jurisdiction over the minor and deciding whether to transfer the matter to Siskiyou County for a dispositional hearing.

Thus, aside from the fact that the parents had been advised at the detention hearing regarding their rights and the possible consequences of the jurisdictional hearing, it was readily apparent at the jurisdictional hearing that mother and father had the right to a contested evidentiary hearing; that in light of the strong evidence the minor had been abused intentionally, exercising the right to a contested hearing would be of no help to them unless they testified; that their testifying would not be in their best interests due to the ongoing investigation which could result in criminal charges against them; and that by submitting the matter instead of demanding an evidentiary hearing, the court would find jurisdiction and proceed to a dispositional hearing. In addition, there was a strong factual basis for the submission. (People v. Howard (1992) 1 Cal.4th 1132, 1180.)

Although mother and father did not expressly waive their rights at the jurisdictional hearing, failure to obtain an express waiver of rights will not invalidate a submission if the record establishes under the totality of the circumstances that the submission was a voluntary and intelligent choice among the alternative courses of action. (People v. Howard, supra, 1 Cal.4th at p. 1177.)

Under the totality of the circumstances, we conclude that although the juvenile court at the jurisdictional hearing failed to comply with the requirements to advise mother and father of their right to a contested hearing and the consequences of submitting the matter instead of demanding a contested hearing, the parents knew their rights, knew that they were forgoing an evidentiary hearing, knew the potential consequences of doing so, and knowingly and voluntarily submitted the matter based upon the advice of their counsel.

DISPOSITION

The writ petition is denied.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

RAYE , J.

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^[1]Former rule 1449, which was in effect at the time of the jurisdictional hearing, was renumbered rule 5.682 effective January 1, 2007, with amendments not affecting the issues in this case.