Fresno County Department of Children & Family Services v. Naomi L.

112 Cal. App. 4th 1254, 2003 Daily Journal DAR 11841, 5 Cal. Rptr. 3d 750, 2003 Cal. Daily Op. Serv. 9405, 2003 Cal. App. LEXIS 1615
CourtCalifornia Court of Appeal
DecidedOctober 29, 2003
DocketNo. F042889
StatusPublished
Cited by22 cases

This text of 112 Cal. App. 4th 1254 (Fresno County Department of Children & Family Services v. Naomi L.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fresno County Department of Children & Family Services v. Naomi L., 112 Cal. App. 4th 1254, 2003 Daily Journal DAR 11841, 5 Cal. Rptr. 3d 750, 2003 Cal. Daily Op. Serv. 9405, 2003 Cal. App. LEXIS 1615 (Cal. Ct. App. 2003).

Opinion

[1256]*1256Opinion

VARTABEDIAN, Acting P. J.

Naomi L. appeals from a dispositional order denying her reunification services in her five-year-old daughter S.G.’s juvenile dependency. (Welf. & Inst. Code, § 361.5, subd. (b)(6).)1 Appellant, who previously submitted the matter on evidence that she and her boyfriend caused the child serious physical harm, contends the court erred when it took her submission by not telling her that a possible consequence of her submission was that the court might deny her reunification services. She further claims the court committed reversible error when it failed to make on-the-record findings in denying her services. On review, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

In October 2002, Fresno police found five-year-old S.G. had multiple bruises on her thighs, legs, ankles, buttocks, back, arms, chin, forehead, and abdomen as a result of being struck repeatedly by appellant’s live-in boyfriend with both a belt and an electrical cord taped into a looped instrument. In the opinion of an examining physician, S.G. was a victim of aggressive attacks involving belts and blunt force. Of particular concern to the physician was that the attacks also involved the child’s head which had the potential to leave her with brain damage. The child also was made to stand on a bucket while she held another bucket for hours at a time and had hot sauce put in her mouth, as supposed forms of punishment. To prevent her from making noise, she was subjected to having duct tape placed over her mouth as well as socks put in her mouth during the physical assaults. Aware of this abuse, appellant failed to intervene and protect her child. On at least one occasion, appellant also struck her daughter with a belt and the looped extension cord.

These discoveries led to S.G.’s detention and the initiation of these dependency proceedings as well as the boyfriend’s and appellant’s arrest. At a January 2003 jurisdictional hearing, appellant, along with her attorney, elected to submit on dependency allegations under section 300, subdivisions (a), (b), (c) and (i). The judge in turn advised appellant that by submitting on the allegations, she was giving up “the right to have a trial on the issues presented by those allegations,” “the right to see, hear and question all witnesses at that trial,” and “the right to subpoena witnesses and present evidence in [her] own behalf.” Appellant replied that she understood and agreed to give up those rights. The court also informed appellant of two possible consequences if it in turn found the allegations true. The court could remove the child from appellant’s custody and ultimately order a permanent [1257]*1257plan, including adoption, if appellant could not complete a service plan within 12 months. The court did not advise appellant that alternatively it could remove the child from appellant’s custody and not order reunification services.

Pending the dispositional hearing, respondent Fresno County Department of Children and Family Services (the department) prepared a social study recommending no reunification services for appellant. According to the department, appellant met the criteria for denial of services under section 361.5, subdivision (b)(6), in that the court found true allegations under a subdivision of section 300 as a result of severe physical abuse to S.G. by her mother and it would not benefit S.G. to pursue reunification services with her mother.2

At the scheduled dispositional hearing, appellant requested a contested hearing on the no-services recommendation. The court meanwhile placed S.G. with her father subject to family maintenance services. In her formal issue statement for the dispositional hearing, appellant contested one issue, that is: “Mother believes that it is in the best interests of the child that she be ordered family reunification services.”

At the contested hearing, the department submitted the matter, in part, on a letter from the child’s therapist. According to the letter, the child, who suffered post-traumatic stress disorder, expressed considerable anger toward her mother for not protecting her from the abuse. Although she loved and missed her mother, the child was reportedly adamant about not seeing [1258]*1258appellant.3 When asked if she would like to see her mother, S.G., still only five years old, replied that her mother should be in jail. In the therapist’s opinion, ideally the child would reconcile with her mother but S.G. was not ready.

Appellant’s trial counsel called the child’s therapist to the stand and questioned her about the possibility of reconciliation and S.G.’s best interests. The therapist explained she did not mean “reconcile” in the sense of the minor ever living again with her mother. Rather, the therapist meant that if the mother could assume responsibility for what had happened to S.G. and essentially apologize, it would ease the child’s hurt and anger.

Following the therapist’s testimony, the court heard argument. In particular, counsel for appellant urged the court to order services on the theory that it would be in the child’s best interest. Counsel for respondent argued against services, noting in part the severe harm S.G. suffered as set forth in the jurisdictional counts. On rebuttal, counsel for appellant made the point that “mother is not saying that those counts aren’t true, She agreed to those counts.” Counsel nevertheless contended it was in the child’s best interests for the mother to receive services.

The court in turn ordered no services for the mother and incorporated its previous findings from the dispositional hearing for S.G.’s father.

DISCUSSION

I.

Appellant contends the court denied her due process when she waived her right to trial on the petition without being warned she might receive no family reunification services. She further argues the error was fundamentally unfair and warranted per se reversal of the jurisdictional findings. As explained below, we find no merit to her contention.

To support her claim of error, appellant cites California Rules of Court, rule 1449, which states that upon a parent’s submission on dependency jurisdiction, the court shall make findings, including that the parent understands the possible consequences of the submission. (Cal. Rules of Court, rule 1449(f)(4).) She fails to cite, however, and our research has not uncovered any authority for her further contention that a court’s failure to warn of possible consequences when it accepts a parent’s submission constitutes a due process violation. In fact, by analogy to case law regarding [1259]*1259Boykin/Tahl4 admonitions in criminal prosecutions, an advisement about the consequences of a plea is not constitutionally mandated. Rather, the rule compelling such advisement is a judicially declared rule of criminal procedure. (People v. Walker (1991) 54 Cal.3d 1013, 1022 [1 Cal.Rptr.2d 902, 819 P.2d 861]; In re Patricia T. (2001) 91 Cal.App.4th 400, 407 [109 Cal.Rptr.2d 904].)

Continuing with the analogy to criminal proceedings, we observe appellant has waived her claim of error. When the error complained of is a failure to advise of the consequences of a plea, the error is waived absent a timely objection. (People v. Walker, supra, 54 Cal.4th at p.

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112 Cal. App. 4th 1254, 2003 Daily Journal DAR 11841, 5 Cal. Rptr. 3d 750, 2003 Cal. Daily Op. Serv. 9405, 2003 Cal. App. LEXIS 1615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fresno-county-department-of-children-family-services-v-naomi-l-calctapp-2003.