San Bernardino County Department of Public Social Services v. Delores F.
San Bernardino County Department of Public Social Services v. Delores F.
Opinion of the Court
Opinion
This is an appeal by mother from the judgment declaring her then nearly four-year-old daughter, Jessica, a dependent of the court and, further, removing Jessica from mother’s custody. In declaring Jessica a dependent, the trial court found, among other things, that mother’s nolo contendere plea to felony child endangerment (Pen. Code, § 273a, subd. (1)), entered pursuant to a plea bargain on an original charge of murder (Pen. Code, § 187), constituted a conviction for causing the death of mother’s then 22-month-old son through abuse or neglect, within the meaning of Welfare and Institutions Code section 300, subdivision (I). We conclude that this finding, and each of the other findings and orders challenged by mother in this appeal, was proper and, therefore, we shall affirm the judgment.
Summary of Facts
Jessica, then approximately eight months old, was removed from mother’s custody on March 5, 1987, after the death of Jessica’s twenty-two-
Mother told the police that she found Matthew hanging from the left side of his crib, on the outside, suspended, apparently under the chin and around the neck, by a red cord mother had tied on to Matthew’s pacifier.
The day after Matthew’s death, Jessica was admitted to the hospital suffering from pneumonia. While Jessica remained in the hospital, the police continued to investigate the circumstances surrounding Matthew’s death. The investigation included an interview with the baby-sitter, whose statement conflicted with mother’s statement. According to the baby-sitter, contrary to mother’s original statement, which mother later corrected, as above noted, mother did not check on Matthew when she returned home the first time. Mother remained home for approximately an hour and one-half after first returning, during which time mother talked on the telephone, while doing her makeup and nails. Just before leaving the second time, the baby-sitter walked outside with mother to get some beer mother had in the
The police examination of Matthew’s bedroom revealed that there were undisturbed particles of dust on the crib at the location where mother said Matthew’s pacifier cord had caught. In addition, the investigating officer noted, based on his initial inspection, that the weave pattern of the pacifier cord fabric did not match the weave pattern of the cord marks on Matthew’s neck. The report of the autopsy, conducted the day after Matthew died, revealed that Matthew had, in fact, hanged to death. Dr. Root, the autopsy surgeon, confirmed the investigating officer’s conclusion that the weave pattern on the pacifier cord did not match the pattern of the cord marks on Matthew’s neck. Additionally, if the pacifier had been in front on Matthew’s neck, as mother claimed it was when she found Matthew, there would have been marks on Matthew’s neck caused by the pacifier, separate and distinct from the cord-like markings which were the only marks actually found. Dr. Root also confirmed, based on rigor mortis in Matthew’s extremities, that Matthew died three to four hours before mother called the paramedics and Matthew was taken to the hospital. Dr. Root’s autopsy report also revealed that Matthew had facial and scalp contusions, acetaminophen and pseudoephedrine (substances commonly found in over-the-counter cold medications) toxicity and chronic laryngo-tracheo-bronchopneumonitis.
The investigating officer also re-created mother’s description of how Matthew was hanging when mother found him. Matthew, according to the officer’s measurement of the body, was 36 inches tall. The portion of the crib where mother said the pacifier cord was caught was approximately 38 inches from the floor. Adding the 10 inches of the pacifier cord to Matthew’s height of 36 inches, Matthew would have been standing on the floor, even if the pacifier cord had caught on the crib.
In light of the foregoing evidence, combined with the discrepancies between mother’s statement and that of the baby-sitter, the police and child
Procedural Background
On September 2, 1987, while the criminal investigation of mother’s involvement in Matthew’s death was still pending, the county department of public social services (DPSS) filed a petition regarding Jessica alleging dependency and jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (d).
The day before the October 8, 1987, contested jurisdiction hearing, mother was arrested for the murder of Matthew.
Mother moved to dismiss the fourth amended petition, contending that her nolo contendere plea to child endangerment (Pen. Code, § 273a, subd. (1)) could not support the allegation under section 300, subdivision (f), which provides, “Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court. . . . [fl] (f) The minor’s parent or guardian has been convicted of causing the death of another child through abuse or neglect.”
The jurisdiction hearing on the fourth amended petition occurred on January 26, 1990. The parties submitted the issue of jurisdiction, based on the factual allegations set out in the petition, after county counsel dismissed the section 300, subdivision (b) allegation as to mother. The trial court made true findings as to the remaining allegations, which included the allegation under section 300, subdivision (f) that mother “has been convicted of causing the death of another child through abuse or neglect, in that: [H] . . . mother . . . was convicted on January 12, 1988 on Penal Code Section 273 A-l, Child Endangerment, a felony involving the death of [Jessica’s] sibling, Matthew . . . .” Thus, the trial court found, as to mother, that Jessica came within the provisions of section 300, subdivisions (a), (f) and (j), as alleged in the fourth amended petition.
I.
Does Mother’s Conviction Under Penal Code Section 273a, Subdivision (1) Constitute a Conviction Within the Meaning of Sections 300, Subdivision (f) and 361.5, Subdivision (b)(4)?
We first address mother’s assertion that her conviction under Penal Code section 273a, subdivision (1) for child endangerment is not a conviction for “causing the death of another child through abuse or neglect,” therefore, the trial court’s finding of dependency under section 300, subdivision (f) was not supported by substantial evidence and the trial court’s finding under section 361.5, subdivision (b)(4) was improper. According to mother, a conviction under Penal Code section 273a, subdivision (1) does not include physical injury, least of all death, as an element of the crime. Consequently, such a conviction cannot sustain a finding under section 300, subdivision (f) which provides, “Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which
If we were to accept mother’s assertion that “death” of a child must be an element of the crime for which she was convicted, we would necessarily have to conclude that the Legislature intended subdivision (f) to apply only when the parent or guardian was convicted of murder or manslaughter. We are of the view that the Legislature did not intend such a narrow application of section 300, subdivision (f) for several reasons. First, had the Legislature intended to limit jurisdiction and dependency under subdivision (f) to homicide convictions, it could have said so in plain, unequivocal language. Instead, the Legislature has stated that jurisdiction and dependency may be based upon a finding that the parent “has been convicted of causing the death of another child through abuse or neglect.” In other words, the express language of section 300, subdivision (f) militates against mother’s interpretation.
Secondly, in 1987 the Legislature completely revised section 300, making numerous substantive changes, including the addition of subdivision (f). As part of the statutory revision, the Legislature set out a statement of its intent, including the statement that, “It is the intent of the Legislature in enacting this section to provide maximum protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to protect children who are at risk of that harm.” (§ 300.)
If the general purpose and intent of the 1987 revision of section 300 is to provide “maximum protection for children,” then we must interpret subdivision (f) in a manner consistent with that intent and purpose. Thus, we are of the view that the Legislature, by its use of the above noted broad language, intended subdivision (f) to include any conviction arising out of a criminal proceeding initiated against a parent based upon the fact that the parent caused the death of a child through abuse or neglect.
The trial court here did look behind mother’s conviction, based upon her plea of nolo contendere to child endangerment under Penal Code section 273a, subdivision (1), and determined that mother caused the death of Matthew through abuse or neglect. Specifically, mother, as previously noted, submitted the issue of jurisdiction based on the allegations of the petition and the social worker’s report. The trial court, in making its true finding under section 300, subdivision (f), read and considered the social worker’s report which revealed not only that mother’s conviction for child endangerment was the result of a plea bargain in a criminal proceeding in which mother was originally charged under Penal Code section 187 for the murder of her son, but also revealed the facts and circumstances surrounding Matthew’s death. The police and autopsy reports, as above noted, were included as attachments to the social worker’s report and thus, also were before the trial court for consideration. Based on the foregoing evidence, the trial court found the section 300, subdivision (f) allegation to be true. We conclude, therefore, that substantial evidence supports the trial court’s finding of the truth of the allegation under section 300, subdivision (f) that mother “has been convicted of causing the death of another child through abuse or neglect.”
At the disposition hearing, the trial court denied reunification services to mother, on the ground, among others, that section 361.5, subdivision
We have already addressed, and rejected, mother’s argument that her conviction under Penal Code section 273a, subdivision (1) cannot support the trial court’s finding under section 300, subdivision (f). We shall not address that contention again except to note that the trial court’s finding was supported by substantial evidence. Mother’s remaining contentions, likewise, are without merit. The trial court denied reunification services to mother under section 361.5, subdivision (b)(4) which, as noted above, provides that reunification services need not be provided when the court finds by clear and convincing evidence that a parent has been convicted of causing the death of another child through abuse or neglect. Having made the required finding under section 300, subdivision (f), and, thus, denying reunification services under section 361.5, subdivision (b)(4), the trial court could not order reunification services unless, under section 361.5, subdivision (c), the trial court found, “ . . . based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.”
In addressing the question of whether to provide reunification services, the trial court first did state that it was without authority to grant or order further reunification services because 18 months had expired since the original detention. Although this statement is incorrect, we shall not belabor the point here because the trial court also stated, “The next separate and distinct rationale for declining to offer or not offering reunification services to mother is I do find specifically that section 361.5, subdivision (b)(4) does
The trial court then went on to address section 361.5, subdivision (c), noting, in effect, that the burden of proof shifts to the parent to show “by competent testimony that reunification services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.” The trial court then stated, “I specifically do find by clear and convincing evidence that [mother] has not met her burden of proof. . . [11] Additionally, I do find that any reunification services to mom are not likely to be successful. And failure to order those services would not be detrimental to the child. In fact to the contrary, I find that not providing services would be to this minor’s best interests. And, in fact, providing services would be to the minor’s detriment.”
Mother’s argument focuses almost exclusively on showing that she met her burden of proof on the issue of whether reunification services were
Mother’s argument regarding detriment to Jessica if reunification services were not provided is limited to the single statement that “mother and Jessica were establishing a bond through the gradually increasing supervised visitation.” In fact, the evidence is to the contrary. The previously noted social worker’s reports, which were the only competent evidence presented on this issue,
Finally, mother incorrectly asserts that denial of reunification services under section 361.5, subdivision (b)(4) can only occur if DPSS specifically alleges in the section 300 petition that such services should be denied. We first note that mother does not, and cannot, claim that she did not have notice that reunification services might be denied under section 361.5, subdivision (b).
II-IV
Mother, as pointed out by the trial court, has refused to accept anything more than minimal responsibility for the death of Matthew, despite, what in our view, is significant, if not overwhelming, evidence which directly implicates mother in the strangulation death of her son. Consequently, at the disposition hearing the trial court was faced with the prospect of returning Jessica to a mother who may have killed her own son but who was unwilling or unable to overcome her denial to provide any credible explanation regarding the death. In short, mother asked the trial court either to ignore the evidence or take a blind leap of faith that mother would not repeat her actions. The issues raised by mother in this appeal make a similar request of this court. We are of the view that each of the findings and orders attacked by mother either was proper and supported by substantial evidence or, if in error, the error was harmless.
Disposition
The judgment is affirmed.
Hollenhorst, Acting P. J., and McDaniel, J.,
Appellant’s petition for review by the Supreme Court was denied July 10, 1991.
According to the statement mother gave to the police two days after Matthew’s death, mother actually returned home briefly after approximately two hours. Mother initially stated that she checked on Matthew during her brief return home and Matthew was still sleeping. Mother, apparently on the advice of her attorney, later sent a letter to the police admitting that she did not check on Matthew during her initial return home, but in fact, did not check on him until returning home the second time.
Mother apparently tied the cord on the pacifier so that Matthew could wear the pacifier like a necklace, keeping the pacifier within the child’s reach if it fell from the child’s mouth.
The alleged natural father, who is not a party to this appeal, was also the alleged natural father of Matthew, although not married to mother nor living with mother and the children at the time of Matthew’s death. Apparently father was unable or unwilling to take temporary custody of Jessica for several reasons, including that he did not have a suitable place to reside with a child.
A11 further citations are to the Welfare and Institutions Code unless otherwise indicated.
The petition also included allegations pertaining to Jessica’s alleged father, none of which are pertinent to this appeal by mother.
Mother remained in custody after her arrest on the Penal Code section 187 charge, and in January 1988, pursuant to a plea agreement, pled no contest to one felony count of child endangerment (Pen. Code, § 273a, subd. (1)). The criminal court sentenced mother to serve one year in county jail as a condition of probation. Mother was released from jail in June 1988.
Mother did not challenge the allegations under subdivisions (a), (b) or (j) of section 300 in her motion to dismiss.
Section 361.5, subdivision (b)(4) provides, in pertinent part, that the reunification services required under subdivision (a), when a minor is removed from a parent’s custody, “. . . need not be provided to a parent described in this subdivision when the court finds by clear and convincing evidence, . . . [t]hat the parent of the minor has been convicted of causing the death of another child through abuse or neglect.”
Mother notes that the trial court also rejected her argument, under Penal Code section 1016, that her plea of nolo contendere could not be used against her, and thus, did not constitute a “conviction” for purposes of section 300, subdivision (f). Mother does not expressly reassert that argument in this appeal. However, to the extent mother intended the foregoing comment as a reassertion of the argument raised in the trial court, we reject the assertion. In raising this argument in the trial court, mother apparently overlooked the express language of Penal Code section 1016 which provides, in pertinent part, that, “The legal effect of. . . a plea [of nolo contendere], to a crime punishable as a felony shall be the same as that of a plea of guilty for all purposes.” (Italics added.)
Further support for this conclusion is found in the report of the Senate Select Committee on Children and Youth, Senate Bill 1195 Task Force on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (Jan. 1988) which “documents
As previously noted, section 361.5, subdivision (b) provides that, “Reunification services need not be provided to a parent described in this subdivision when the court finds, by clear and convincing evidence, any of the following: ...[][] (4) That the parent of the minor has been convicted of causing the death of another child through abuse or neglect.”
The words “not (sic)” appear in the reporter’s transcript, indicating to this court that the reporter was of the view that the trial court apparently misspoke when it stated, as noted above, that this mother did “not” kill her son. From our review of the trial court’s comments, considered in their entirety, we are of the view that the trial court did, in fact, use the negative “not” inadvertently, intending, instead, to say, “I have no reasonable doubt that this mother did kill her son Matthew.”
As previously noted, mother testified at the disposition hearing. During cross-examination, mother stated that while she originally thought Matthew’s death was an accident, she changed her mind after reading the police reports and concluded that the baby-sitter, or possibly some one the baby-sitter might have let in the house, killed Matthew. Thus, despite all evidence to the contrary, as noted above, by the trial court, mother continued to deny any involvement in the death of Matthew, acknowledging only that she was negligent in failing to make sure that the baby-sitter knew about the medications Matthew was taking and further, in failing to check on Matthew during the times mother returned home from shopping. Although there was no evidence that mother had ever actually abused Jessica, mother’s inability or refusal to accept anything other than minimal responsibility for the death of her son is an excellent indicator that reunification services were not likely to prevent future abuse.
In support of the foregoing statement that mother and Jessica were “establishing a bond,’’ mother cites this court to hearsay statements made during the disposition hearing by the social worker on cross-examination by mother’s attorney. Specifically, the social worker, over objection by counsel for DPSS and Jessica, was recounting statements made to the social worker by mother’s therapist.
Each of the social worker’s combined jurisdiction and disposition reports prepared in this action included the recommendation that the court “[f]ind that 361.5(b) may apply and Reunification Services may not be ordered.” Thus, as early as November 4, 1987, when the first social worker’s report was filed, mother had notice that such services might be denied. In addition, at the jurisdiction hearing on January 26, 1990, at which mother and her attorney were both present, county counsel, on behalf of DPSS, specifically pointed out the foregoing recommendation in the January 25, 1990, report and, further, asked the court to amend the recommendation by adding subparagraph (4) after 361.5, subdivision (b). Thus, the report, as amended at the jurisdiction hearing, specified that reunification services might be denied under section 361.5, subdivision (b)(4).
See footnote, ante, page 769.
Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.
Reference
- Full Case Name
- In re JESSICA F., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, and v. DELORES F., and
- Cited By
- 1 case
- Status
- Published