Filed 5/22/15 In re F.C. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re F.C. and D.C., Persons Coming Under
the Juvenile Court Law.
SOLANO COUNTY HEALTH AND
SOCIAL SERVICES,
Plaintiff and Respondent, A141496, A141828, A143095,
v. A141925, A142089, A142474
F.C. et al., (Solano County
Defendants and Appellants. Super. Ct. Nos. J42310 & J42440)
In these consolidated appeals, appellants F.C. (Father) and M.C. (Mother) appeal
from various orders of the juvenile court made in dependency proceedings involving their
two children. We appointed counsel for each parent. Both counsel filed opening briefs
informing us that they were unable to find any arguable issues. They requested that we
undertake review under In re Sade C. (1996) 13 Cal.4th 952 (Sade C.) and In re
Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.), and exercise our discretion to permit the
parents personally to submit supplemental briefs. Father has filed a supplemental brief.1
1
Mother’s appeals as to case Nos. A142089 and A142474 have already been dismissed,
as to her only, by orders dated October 9, 2014, and November 10, 2014. As to the four
other appeals, Mother was given the opportunity to submit an additional letter or brief
identifying any contentions she wished to raise on appeal, which she has not done.
Accordingly, her remaining appeals will be dismissed as abandoned.
Neither Father’s brief nor our independent review of the record reveals any arguable
issues.2 Accordingly, we dismiss the appeals.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Appeal No. 141496
On April 18, 2013, the Contra Costa County Children & Family Services Bureau
(Bureau) filed a Welfare and Institutions Code section 3003 petition on behalf of the
parents’ two-year-old son F.C., alleging that Mother had failed to protect the child from
exposure to domestic violence, thereby placing the child at risk of harm. The petition
alleged that the previous week Father had kicked Mother, who was then 26 weeks
pregnant, in the stomach, resulting in stomach pain and vaginal bleeding. He had also
punched her in the chest and back, held her against the wall by her neck, forced her to
drink his urine, and had hit, pushed, and struck her approximately once a week for the
past two years. The petition also alleged Mother had mental health issues that put the
child at risk, in that “she hears voices and sees things that are not there.”
On April 19, 2013, F.C. was ordered detained.
On September 11, 2013, Father filed a motion to dismiss the petition. He denied
engaging in domestic violence and asserted neither he nor Mother suffered from mental
illness such that would cause F.C. to suffer harm.
After several delays and continuances, the jurisdictional hearing was held on
October 7, 2013. Police officer Daniel Dansie testified that he had contact with Mother
2
In Phoenix H., the Supreme Court reiterated that counsel’s filing of a “no issues
statement” in an appeal in a juvenile dependency proceeding does not trigger independent
review by the appellate court, in contrast to the filing of a Wende brief (see People v.
Wende (1979) 25 Cal.3d 436) in a criminal case. (Phoenix H., supra, 47 Cal.4th at
pp. 841-842.) Rather, once counsel reviews the record on appeal and files such a
statement, the appellate court may rely on it, and may properly dismiss the appeal. (Id. at
p. 842 [“we held [in Sade C., supra, 13 Cal.4th at p. 994] that the Court of Appeal could
dismiss an indigent parent’s appeal if appointed counsel filed a brief raising no arguable
issues”].)
3
All further statutory references are to the Welfare and Institutions Code except as
otherwise indicated.
2
for several days during the week of April 15, 2013, after an initial contact on a report of
domestic violence. Mother told him Father frequently engaged in acts of violence
towards her, including hitting, pushing, and shoving. F.C. was present in the home when
these acts occurred, though he did not personally witness them.
On one occasion, Father reportedly kicked Mother in the stomach when she was
noticeably pregnant. Mother divulged this information when she was away from home,
during an appointment for F.C. at a health clinic. Because Father was very controlling,
she did not feel she could have reported the incident earlier. At that time, she stated she
had been experiencing contractions, pain, and vaginal bleeding every day since the
incident. Later, she discharged herself from the hospital and told Dansie that she was
fine; however, he received information to the contrary from Father’s brother and from
hospital staff. He was told by family members that F.C. had been born prematurely with
a heart defect, which required ongoing medical attention. Dansie believed Mother was
unable to provide for F.C. due to her inability to make coherent, sound decisions and
because of her statements regarding domestic violence. After Dansie was excused, the
matter was continued again.
The hearing resumed on October 23, 2013. Mother’s counsel moved for a directed
verdict dismissing the petition, asserting the Bureau had failed to prove domestic
violence or Mother’s mental health issues had placed F.C. at risk. The motion was
denied.
Eleanor Walker, a social caseworker, testified she was not aware of any additional
reports of domestic violence since the petition was filed. She had not been able to meet
with Mother since receiving the case. Walker reported both parents were engaged in
visitation and the visits had gone well. Mother was appropriate with F.C. during her
visits. The parents also brought food, diapers, medication, and other supplies for their
son.
Walker’s communication with Mother was by e-mail only. Walker did not believe
the parents had been cooperative with the Bureau. When she offered them reunification
services, Mother said she did not feel she needed them. Father did not respond at all. She
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learned the parents had moved from Concord to Dixon in August 2013. She was unable
to arrange to meet the parents in their new home. Social workers in Solano County also
had not been successful in contacting them at the Dixon location.
Lindsay Kennedy, a social worker supervisor, testified Mother had reported
domestic violence occurred at least weekly for the past two years. Family members
reported Mother had mental health issues. The paternal grandmother reported that both
parents had severe mental disabilities. The Bureau also substantiated an earlier allegation
that Mother had neglected F.C.’s medical needs.
Father testified and denied committing any acts of domestic violence. Mother
testified that she had never been diagnosed with any mental health disorder and had never
been detained in a psychiatric hospital. She had never taken any medications related to
mental illness. She was aware of the domestic violence allegations but denied that Father
had ever hit or kicked her. She denied telling Dansie that she was a victim of domestic
violence, and also denied reporting to anyone during her son’s medical appointment that
Father had ever punched or kicked her.
The juvenile court denied Father’s motion to dismiss the petition. The court found
Father and Mother lacked credibility, in part because they had not allowed social workers
into their home and because Mother did not cooperate in meeting with the social workers.
The court concluded F.C was described by section 300, subdivision (b), finding the
allegations concerning domestic violence to be true, including the allegation that Father
kicked Mother in the stomach. The court also found true an allegation that Mother’s
mental health issues placed the child at risk, in part because her behavior in court, while
respectful, was “bizarre.”4
At the disposition hearing, the Bureau requested a continuance due to new
disclosures about domestic violence and reports that Father had been involuntarily
4
The juvenile court had previously dismissed two other allegations in the petition on
October 7, 2013.
4
committed to a mental institution four times. The hearing was continued for a contested
disposition.
On December 26, 2013, the matter was ordered transferred to Solano County.
On January 14, 2014, the juvenile court in the Solano County continued the case to
February 18 for a transfer-in report from the Solano County Health and Social Services
Department (Department). The court accepted both parents’ waiver of appointed
counsel, warning them that they were “making a mistake.”
On February 10, 2014, Father filed a section 388 petition for a change of order,
asking that F.C. be placed with the parents or with a relative because F.C. had suffered
injuries while in his foster home.5
On February 18, 2014, the parents moved to disqualify the judge, both
peremptorily and for cause, based on the January 14, 2014 continuance. The court denied
the motion to disqualify for cause because the motion was not timely and did not assert
grounds for disqualification. The peremptory challenge was denied as untimely. The
case was set for a March 17, 2014 hearing on the change order request and the contested
disposition hearing.
On February 26, 2014, this court denied a petition for writ of mandate and request
for an immediate stay of trial court proceedings.
On February 28, 2014, the parents filed a request to terminate jurisdiction.
On March 17, 2014, the court denied the request to terminate jurisdiction and
dismiss the case. Relying on In re Richard H. (1991) 234 Cal.App.3d 1351 and Jeff M. v.
Superior Court (1997) 56 Cal.App.4th 1238, the court found dismissal was not the proper
remedy for a case that goes beyond the six months specified by section 352, subdivision
5
Section 388, subdivision (a)(1) provides, “Any parent or other person having an interest
in a child who is a dependent child of the juvenile court or the child himself or herself . . .
through a properly appointed guardian may, upon grounds of change of circumstance or
new evidence, petition the court . . . to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court.”
5
(b).6 Rather, the remedy is to hold the hearing as quickly as possible. The court
informed the parents that the jurisdictional findings would not be relitigated.
At the disposition hearing, social worker Eleanor Walker was received as an
expert in the areas of child welfare, social work, and domestic violence. She testified that
she was assigned as the social worker to this case in April 2013. She did not meet the
parents in person until August 2013. She told them they would need to have a mental
health assessment completed prior to consideration of their child being returned to them.
Mother indicated that she did not believe she needed services. Walker made another
attempt to offer services to them in October 2013, and explained to Mother that she
would need to meet with a domestic violence liaison by herself. Mother again stated that
she did not feel she needed those services. Walker also referred both parents to mental
health services in December 2013 and scheduled an appointment for Mother to meet with
the domestic violence liaison. Mother did not attend the appointment and the parents did
not participate in any mental health assessments.
Walker testified that visitations with F.C. and the parents were appropriate. She
did not authorize unsupervised visitation because the parents had not engaged in any
services. Reports that the child was being abused in foster care were investigated and
determined to be unfounded. Walker deemed foster care placement to be appropriate for
the child.
Mother made at least three or four attempts to communicate that she was being
physically harmed by Father. In Walker’s opinion, these statements were later recanted
because Mother feared for her safety. Mother had likely developed “learned
6
Section 352, subdivision (b) provides: “Notwithstanding any other provision of law, if
a minor has been removed from the parents’ or guardians’ custody, no continuance shall
be granted that would result in the dispositional hearing, held pursuant to Section 361,
being completed longer than 60 days after the hearing at which the minor was ordered
removed or detained, unless the court finds that there are exceptional circumstances
requiring such a continuance. The facts supporting such a continuance shall be entered
upon the minutes of the court. In no event shall the court grant continuances that would
cause the hearing pursuant to Section 361 to be completed more than six months after the
hearing pursuant to Section 319.”
6
helplessness” just to remain in the relationship. Walker would expect the domestic
violence in this case to increase in severity over time without treatment or intervention.
F.C. had reportedly been very aggressive towards other children while in foster care,
which was of concern because it suggested he has been adversely affected by domestic
violence in the home. Given that there had been no treatment or intervention to address
the problem, she rated the adverse risk of returning F.C. to the home to be “extremely
high.” She explained to the parents that services were being offered with the goal of
returning the child to them, but they did not appear to understand her.
On cross-examination, Walker stated that neither parent had disclosed domestic
violence to her personally and Father had no convictions for domestic violence. The
interactions she had observed between the parents and the child have been appropriate.
She observed the parents with their younger child, D.C., and did not perceive any risk of
imminent harm to that child. However, she was not the social worker responsible for that
child.
Social worker Heather Walsh testified she conducted a home visit with the
parents in Dixon in January 2014. She attempted to refer them to services but they stated
they would not participate in services without a court order. She had recommended the
parents take parenting classes and that Mother obtain domestic violence services. Mother
did not appear at an assessment for domestic violence. At the same time, the parents
repeatedly reported at visitation that the foster parent was abusing F.C. When the social
workers were called to examine the child, no injuries were found, apart from typical age-
appropriate injuries. She had never observed or received any information from any of her
colleagues suggesting he was being abused in the foster home. She did not believe F.C.
would be safe in his parents’ home, and stated that an investigation was currently being
conducted as to D.C.’s safety. The social worker had not been able to make contact and
had requested a warrant to produce the child.
On March 24, 2014, after closing argument, the juvenile court denied the parents’
request to change the court order. The court found there was no evidence to contradict
7
that the social workers had investigated the parents’ claims of caretaker abuse and had
concluded there was no abuse occurring.
As to disposition, the juvenile court noted that the Contra Costa court had already
found that domestic violence had occurred and that Mother had mental health issues.
Since the time of that hearing, parents had refused to accept services offered to mitigate
the effects of those findings. The court continued F.C. as a dependent, finding clear and
convincing evidence that there was a substantial danger to the child if he were returned
home, and that removal from the parents’ custody was necessary. The court ordered the
Department to provide reunification services, and ordered the parents to participate in
those services. The matter was set for a September 9, 2014 pre-permanency hearing in
order to allow parents six months of reunification services.
On April 7, 2014, parents filed a notice of appeal from the findings and orders on
jurisdiction and disposition. The notice included the April 19, 2013 detention order, the
denials of his motions to disqualify the judge and to dismiss the proceedings, and denials
of the section 388 petitions.
B. Appeal No. A141828
On April 17, 2014, the parents filed another section 388 petition seeking to change
F.C.’s placement order. They again asserted F.C. had sustained injuries while his foster
care home. They asked that the child be moved to a relative placement with Father’s
brother.
On May 7, 2014, the Department filed its response to the petition. The
Department noted the court had made a finding on March 24, 2014, that any alleged
injuries occurring prior to that date were not the result of abuse, but instead were typical
childhood injuries. The response also expressed concerns that placement with Father’s
brother would be detrimental to the boy and could make it more likely that the parents
would abduct the child.
On May 12, 2014, the juvenile court denied the petition after an evidentiary
hearing. The court directed the Department to do a followup study for relative
8
placement. That same day, parents filed a notice of appeal from the order denying their
petition.
C. Appeal No. A141925
On April 1, 2014, the Department filed a section 300 petition as to D.C., who was
then eight months old. The petition alleged D.C. was at risk of harm based on the
allegations sustained in the matter of his older brother F.C., as well as on the parents’
failure to participate in any services to mitigate the risk to his sibling. (§ 300, subds. (b),
(j).) The accompanying detention report noted the parents had attempted to obtain a
restraining order against the assigned social worker in response to her efforts to interview
the family.
On April 2, 2014, the parents did not appear at the detention hearing, although
they had received notice. The juvenile court ordered D.C.’s detention and issued a
protective custody warrant for the child, who had not yet been located. Services were
ordered for both parents. The child was detained the following day.
On April 3, 2014, Mother filed a motion disqualify the juvenile court judge (the
same judge presiding in F.C.’s case) pursuant to Code of Civil Procedure section 170.6.
The parents also requested a rehearing of the detention proceeding, claiming they did not
receive notice.
On April 4, 2014, the judge accepted the disqualification as to the matter involving
D.C. D.C.’s case was transferred to a different judge.
On April 8, 2014, the parents filed a demurrer, a motion to set aside, and a motion
to dismiss. They asserted they did not have adequate notice of the detention hearing and
claimed the petition’s allegations were without support.
On April 22, 2014, the new juvenile court judge denied another disqualification
motion. The court also overruled the parents’ demurrer and denied the motion to dismiss.
The court granted the motion for rehearing on detention.
On April 25, 2014, the juvenile court ordered continued detention of D.C., finding
it would be detrimental to his physical and emotional health to be returned. The
Department’s dependency petition was sustained.
9
On April 29, 2014, the parents filed another section 388 petition, requesting an
order dismissing D.C’s dependency case. They claimed circumstances had changed in
that they had engaged in services and there were newly discovered relatives available for
placement. They also asserted lack of notice, both as to them as well as to Indian tribes
under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.).
At a contested disposition hearing held on May 9, 2014, the social worker testified
that the parents had not attended any visits since D.C.’s detention. She recommended
family reunification services rather than family maintenance services because of concerns
that domestic violence could be continuing and because the parents had not yet chosen to
participate in any services. The court adopted the Department’s recommendations and
also denied the section 388 petition.
On May 22, 2014, the parents filed a notice of appeal from the findings and orders
made on April 2, April 8, April 22, and May 9, 2014.
D. Appeal No. 142089
On May 22, 2014, the parents filed another section 388 petition seeking to change
the juvenile court’s placement order for D.C., in order to have the child placed with a
relative.
On June 5, 2014, the matter came before a judge who was not familiar with the
case. The judge continued the hearing to a time when the original judge would be
available. The parents filed a notice of appeal from the order continuing the hearing.
E. Appeal No. 142474
On June 23, 2014, the parents filed another motion to disqualify the judge in
D.C.’s case, claiming he was prejudiced against them. The judge denied the motion.7
The parents’ section 388 petition regarding placement was consolidated for hearing with
a similar petition filed by D.C.’s paternal grandmother.
A social worker testified that while the paternal grandmother met the licensing
requirements for placement, the Department believed she was not trustworthy because
7
A subsequent motion to disqualify the judge was stricken.
10
she had not been forthcoming about a domestic violence incident that occurred when F.C.
was placed with her before. The social worker indicated that the paternal grandmother’s
brother had been approved for placement and the Department was planning to transition
D.C. to his home.
Both 388 petitions were denied on the ground that the parties failed to meet their
burden to prove a change in circumstances.
On July 2, 2014, the parents filed another section 388 petition, requesting that the
case be transferred to Alameda County because they had recently moved to Oakland.
At the July 10, 2014 hearing, the parents explained they were required to move
after D.C. was taken from their home. The court denied the motion without prejudice
because the parents had not included their actual address in their request. That same day,
the parents filed a notice of appeal from the court’s orders denying their petitions and
their disqualification motions.
F. Appeal No. A143095
On May 29, 2014, parents filed a section 388 petition asking that F.C. be placed
with the paternal grandmother and seeking sanctions against the Department for
disregarding the court’s orders concerning relative placement. They also requested
orders for unsupervised visits and for transportation assistance.
On June 3, 2014, the juvenile court denied the petition without hearing because it
did not state new evidence or a change in circumstances. The court noticed it had not
ordered placement of the child with a relative, but had ordered a followup and
reconsideration of such placement.
On June 23, 2014, parents filed a section 388 petition asking that the dependency
proceedings be dismissed as to F.C. because the conditions alleged to exist when the
child was removed were no longer present. The petition was summarily denied.
On July 2, 2014, the parents filed another preemptory challenge against the judge
in F.C.’s case. As in the case of D.C., they also filed a section 388 petition seeking to
transfer the case to Alameda County.
11
On July 15, 2014, the juvenile denied the challenge as untimely. The court
continued the hearing on the transfer petition to July 29 to give parents the opportunity to
verify their new residence. When they did not appear at that hearing, the petition was
denied.
On August 27, 2014, the parents revived their argument that the dependency
petition’s allegation regarding Mother’s mental health issues failed to state a cause of
action. They asked that the allegation be stricken and that the proceedings be dismissed.
On September 2, 2014, the motion was denied, the juvenile court concluding it did
not have the power to review the findings of the Contra Costa County court. The court
set a combined six-month and twelve-month review for September 9, 2014. The hearing
was continued to October 27, 2014.
On September 9, 2014, the parents filed a notice of appeal from the order denying
their motion to dismiss the proceedings. They also challenged the settings of the six and
twelve month reviews on the same day, and asserted the Department failed to provide
reasonable reunification services.
G. Consolidation
We appointed appellate counsel to represent Father and Mother. On December 10,
2014, Mother’s counsel filed a letter brief pursuant to Phoenix H., supra, 47 Cal.4th 835
and Sade C., supra, 13 Cal.4th 952, informing us that he had found no arguable issues.
(See Sade C., at pp. 981–982.) Father’s counsel filed a similar brief on January 8, 2015,
requesting us to exercise our discretion to permit Father to submit his own brief. As
noted above, Mother has not filed a supplemental brief.
On February 17, 2015, Father submitted a supplemental brief in propria persona.
DISCUSSION
We have reviewed Father’s supplemental brief and, out of an abundance of
caution, have also independently reviewed the record. Insofar as Father is attempting to
appeal from the juvenile court orders denying his peremptory challenges, these orders are
not subject to appeal. (Code Civ. Proc., § 170.3, subd. (d); see People v. Hull (1991)
1 Cal.4th 266, 268 [writ of mandate under Code Civ. Proc., § 170.3, subd. (d), is the
12
exclusive means by which a party may seek review of an unsuccessful peremptory
challenge against a trial judge].)
With respect to the remainder of his arguments, Father complains that he did not
receive adequate notice of the dependency proceedings. He also claims the judge in
F.C.’s case lost jurisdiction after he disqualified himself in D.C.’s case. Father also
asserts the jurisdiction/disposition findings as to F.C. are not supported by substantial
evidence, and complains that the Department failed to tailor reunifications services to
“the specific needs of the disabled parents.” Our review has confirmed what Father’s and
Mother’s counsel determined; i.e., nothing in the record indicates that an arguable issue
exists for our consideration, and nothing in Father’s supplemental brief changes that
result.
These appeals are not Father’s opportunity to try to defend the case anew. Issues
of fact and credibility are matters for the trial court alone. (In re Amy M. (1991)
232 Cal.App.3d 849, 859–860.) On appeal, all conflicts must be resolved in favor of the
respondent and all legitimate inferences indulged in to uphold the decision, if possible.
(Id. at p. 859.) If alleged facts were not presented to the trial court, they are disregarded
by the Court of Appeal. (Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804, 808,
fn. 4, disapproved on another ground in Cronus Investments, Inc. v. Concierge Services
(2005) 35 Cal.4th 376, 393, fn. 8.) An appellate court may not reweigh or express an
independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Here, substantial evidence in the form of testimony from the social workers
supports the juvenile court’s jurisdiction and disposition findings. The record shows that
both parents had a documented history of domestic violence and mental health concerns.
While both social service agencies involved in this case offered to provide services to
help ameliorate these serious issues and concerns and reunify the family, the parents
chose not to participate in any of these services. Father’s remaining contentions are
meritless. Having failed to make an arguable showing of reversible error, he is not
entitled to this court’s further review.
13
DISPOSITION
The appeals are dismissed.
_________________________
DONDERO, J.
We concur:
_________________________
MARGULIES, Acting P.J.
_________________________
BANKE, J.
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