San Diego County Department of Social Services v. Sandra Z.
San Diego County Department of Social Services v. Sandra Z.
Opinion of the Court
Opinion
We granted review to decide (i) whether parents who plead “no contest” to a petition alleging their child falls within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivision (e),
I. Facts, Procedure, and Relevant Statutes
In the late afternoon of May 17, 1989, Sandra Z. noticed that the eyes of her six-month-old son, Troy, were rolled back. She telephoned from a neighbor’s home for emergency help. When paramedics arrived, Troy was not breathing. They transported him to the hospital, where the admitting doctors found him to have “no palpable blood pressure” and a body temperature of 89 degrees axillary. He was “flaccid,” and appeared “severely emaciated and foul-smelling.”
Sandra and John Z. (Troy’s father) explained to social workers that since his third month (when they stopped feeding Troy expensive baby formula in favor of “boiled milk” and “all kinds of other food”), Troy frequently sucked his fingers into his throat, making himself gag and vomit. They revealed that Troy had received no medical care—even though John was in the Navy and entitled to such care for his family, and despite the fact that neighbors had advised them to seek such help—because, in John’s words, the hospital’s “policy on appointments is always different” and “I won’t wait in line.”
Another doctor who examined Troy hours after admission found he displayed “profound emaciation.” Troy weighed only seven pounds, five ounces—eight ounces less than his birth weight. His length was below average for his age, all of his ribs were visible, no subcutaneous fat was present, and “his overall appearance was that of a starved infant”—a characterization graphically substantiated by photographs taken the day after admission, and made part of the record on appeal.
After a week, Troy gained on average more than three ounces a day, with no vomiting or sign of illness. His physician concluded: “[I]t seems definite that Troy has no illness that would cause him to become undernourished and that his nutritional problem which almost killed him was, with reasonable medical probability, due simply to his being deprived of sufficient feedings by his caretakers. This in turn, indicates a profound degree of unconcern and indifference to his needs on their part. His return to such an environment and such caretakers would be extremely hazardous. In all probability, the situation would simply repeat itself. There is no known method of producing
The hospital staff placed a protective hold on Troy, and notified the San Diego County Department of Social Services (DSS) and the police.
Section 300, subdivision (a), provides for a finding of jurisdiction when “[t]he minor has suffered . . . serious physical harm inflicted nonaccidentally upon the minor by the minor’s parent. . . .” Subdivision (b) provides for a finding of jurisdiction when “[t]he minor has suffered . . . serious physical harm or illness . . . by the willful or negligent failure of the parent ... to provide the minor with adequate food, clothing, shelter, or medical treatment. . . .” “Reunification services”—i.e., court-ordered social counselling and treatment services designed to facilitate reunification of the family within 12 to 18 months—are mandatory under either subdivision. (§ 361.5, subd. (a).)
As noted, the petition also asserted section 300(e) as a basis for jurisdiction. That subdivision provides for a finding of jurisdiction when “[t]he minor is under the age of five and has suffered severe physical abuse by a parent. . . .” At the time of the events in this case (see ante, p. 1173, fn. 2), it further provided that “[f]or the purposes of this subdivision, ‘severe physical abuse’ means any of the following: any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death; ... or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external and internal swelling, bone fracture, or unconsciousness.”
Whereas reunification services are mandatory when a child is declared to be within the jurisdiction of the court under section 300, subdivisions (a) or (b) , there is a presumption against provision of reunification services if jurisdiction is based on section 300(e). If jurisdiction is based on subdivision (e), the court is directed not to provide reunification services unless the court finds that such 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.” (§ 361.5,
Within a month after Troy’s admission to the hospital, both of his parents were arrested on felony child abuse charges. They were released from jail after about two weeks, but prohibited by court order from contacting Troy, who had been placed in long-term confidential licensed foster care.
1. The Jurisdiction Hearing
A jurisdiction hearing under section 300 was held in July 1989. Both parents appeared with their respective counsel, who informed the court their clients wished to plead “no contest” (Cal. Rules of Court, rule 1449(e)) to the section 300 allegations. The court proceeded to explain to the parents the various rights they would waive by pleading no contest to the allegations. At that point the deputy district attorney (representing DSS) interjected:
“Excuse me, . . .I’m wondering if the court would like to advise that the law presumes that if the court finds by clear and convincing evidence at a dispositional hearing that the parent[s’] activities brought the child within the meaning of section 300(e), the law would presume that there would be no reunification between them and their child; however, they would have the ability at that hearing to show that reunification with the child might be in the child’s best interest, and if so ordered, then they would have to follow the orders of the court. H] However, if a court at a dispositional hearing did not find it was in the best interest of the child that reunification efforts be had, that the court at that hearing would order that a hearing occur within 120 days which could result in the[] parent[s’] rights to the child being terminated.”
The court commented that “[t]he district attorney has taken it one step further than where we are today, and that is, what are the consequences of your entering a plea.” The court asked the parents’ respective counsel whether they had “an opportunity to discuss the consequences with respect
2. The Disposition Hearing
The focus of the disposition hearing was on whether reunification services should be provided to the parents. After hearing testimony by three witnesses,
The court addressed and summarily rejected the second alternative condition, noting that the parents’ counsel had not even attempted to argue that Troy had become attached to his parents. It then considered whether reunification services were “likely to prevent reabuse or continued neglect” of Troy.
The court found parents had continuous access to various social services through the Navy, and yet failed to use those services, or take Troy to the hospital, even though he had grown severely emaciated. The court summarized the experts’ predictions concerning the potential for successful reunification services, and concluded the evidence disclosed no “likelihood that [the parents’] mind-set, given all the factors considered, can be changed by any services.” The court expressed the opinion that because the parents had not demonstrated any recognition of or willingness to deal with their problems, compelled reunification services would “not likely . . . prevent re-abuse or continued neglect of [Troy] by either of his parents” and, accordingly, declined to order reunification services. Pursuant to section 361.5,
Thereafter the parents became homeless, and began living in various shelters; Sandra Z. gave birth to an ill baby that tested positive for traces of cocaine; and both parents pleaded guilty to felony child abuse charges.
3. Motions to Withdraw No Contest Pleas
Shortly before the December “selection and implementation” hearing, described below, both parents filed motions to withdraw their no contest pleas insofar as those pleas conceded the court’s jurisdiction over Troy under section 300(e).
At a hearing on the parents’ motions, counsel for John Z. asserted, “[t]he thrust of the . . . motion ... is that there was a mistake of law and that the facts of this case do not support jurisdiction under section 300(e).” Counsel for DSS pointed out that at the time the pleas were taken both parents were advised about the consequences of their pleas to section 300(e), and he expressed his view that off-the-record, in camera discussions at that time revealed “that it was a tactical decision to enter the plea as to jurisdiction and to proceed to a contested dispositional hearing.” At that point, counsel for Sandra Z. stated she agreed with that assessment: “My recollection of the no-contest effort [is that it] was entered into [as] a strategic exercise.” Counsel for Troy concurred with that assessment.
The court remarked that it similarly recalled that “tactical considerations” motivated the no contest pleas, and it also recalled the extensive discussion that took place concerning the consequences of the plea to section 300(e). In addition, the court reaffirmed its view that “the facts as presented in this case clearly allege, in this court’s mind, a cause of action under Welfare and Institutions Code, section 300(e).” Accordingly, the court found no mistake
4. The Selection and Implementation Hearing
The court proceeded to the section 366.26 “selection and implementation” hearing.
Both parents filed notices of appeal (No. DO11549), claiming, inter alia, that insufficient evidence supported the termination order, and that termination should not have been based on the court’s earlier section 300(e) finding, because that finding was itself erroneous and the subject of a pending appeal in case No. D010733.
The Court of Appeal consolidated the two appeals. It concluded that starvation of an infant to near death does not constitute “severe physical abuse” under section 300(e), and hence it reversed the disposition order in No. D010733 “to the extent the jurisdictional finding was based on section 300, subdivision (e),” and instructed the trial court to offer reunification services pursuant to section 361.5, subdivision (a). Accordingly, the court also reversed the judgment terminating parental rights (No. D011549).
II. Analysis
We begin with an issue briefed by DSS and both parents in the Court of Appeal, but ignored by that court, namely, whether the parents may
We find persuasive an analogous line of cases establishing that when a defendant in a criminal proceeding pleads “guilty” or “nolo contendere,” he may not challenge on appeal his “guilt or innocence.” Instead, such a claim is not cognizable on appeal.
In People v. Pinon (1979) 96 Cal.App.3d 904 [158 Cal.Rptr. 425], the defendant pleaded guilty to a charge under Penal Code section 12021, which makes illegal the possession of a firearm by “[a]ny person who has been convicted of a felony . . . .” The defendant asserted on appeal that his conviction cannot stand because the crucial “felony” element was in fact not present; he claimed his prior conviction “was in fact a misdemeanor conviction and that his trial counsel was constitutionally inadequate for not recognizing that fact.” (Id., at p. 909.) In rejecting the attempt to raise this issue on appeal, the appellate court, in an opinion by Justice Kaus, first noted that the defendant had failed to secure a certificate of probable cause (Pen. Code, § 1237.5), but then went on to explain the “more fundamental reason why these issues may not be raised on appeal: since they go to the question of guilt or innocence, they have been ‘removed from consideration’ by the guilty plea. (See People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 [135 Cal.Rptr. 786, 558 P.2d 872].)” (Pinon, supra, 96 Cal.App.3d at pp. 909-910.)
The Pinon court, quoting People v. DeVaughn (1977) 18 Cal.3d 889, 895 [135 Cal.Rptr. 786, 558 P.2d 872], continued: “ ‘Issues cognizable on appeal following a guilty plea are limited to issues based on “reasonable constitutional, jurisdictional,
The same rule applies after a defendant enters a plea of “nolo contendere” (“no contest”). (People v. Shults (1984) 151 Cal.App.3d 714, 718-720 [199 Cal.Rptr. 33] [following Pinon and DeVaughn', nolo contendere plea waives appellate review of in limine ruling by trial court barring evidence supporting claim of collateral estoppel].) “ ‘In short, a defendant “cannot admit the sufficiency of the evidence by pleading guilty [or nolo contendere] and then question the evidence by an appeal. . . (Id., at p. 719; see also People v. Duval (1990) 221 Cal.App.3d 1105, 1114 [271 Cal.Rptr. 240]; People v. Arwood (1985) 165 Cal.App.3d 167, 171 [211 Cal.Rptr. 307]; People v. Haven (1980) 107 Cal.App.3d 983, 985 [167 Cal.Rptr. 376].)
We discern no reason why these principles should not apply here as well. A plea of “no contest” or an “admission” (Cal. Rules of Court, rule 1449(e)) is the juvenile court equivalent of a plea of “nolo contendere” or “guilty” in criminal courts. A plea of “no contest” to allegations under section 300 at a jurisdiction hearing admits all matters essential to the court’s jurisdiction over the minor. Accordingly, by their knowing and voluntary acquiescence to the allegations of the petition, parents waived their right to challenge on appeal the legal applicability of section 300(e) to their conduct.
III. Conclusion
Because the parents’ claim regarding the scope of section 300(e) is not cognizable on this appeal, we reverse the judgment of the Court of Appeal.
Mosk, J., Panelli, J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
Hereafter section 300, subdivision (e), or section 300(e). Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We note that while this case was pending before us, section 300(e) was “expanded” to define “severe physical abuse” as, inter alia, “willful, prolonged failure to provide adequate food.” (Stats. 1992, ch. 382, Leg. Counsel’s Digest, pt. (1), No. 8 West’s Cal. Legis. Service, p. 1230.)
As explained below, a month later both parents were arrested on felony child abuse charges.
Dr. Clark, a psychologist who had treated parents involved in similar cases, testified that under optimal circumstances—i.e., assuming a favorable outcome in the parallel criminal prosecution, and assuming the parents “in fact would avail themselves of the opportunity . . . and that those services were competent”—there was at most a 60 percent chance that reunification services would be successful, allowing the parents to regain custody of Troy. Later he characterized the probability of success as “a toss-up.” Dr. Clark admitted he was concerned about whether the parents would in fact “fully utilize” whatever reunification services might be made available to them. Finally, he testified that based on his evaluation, neither parent had a “close personal relationship” with Troy, and that Troy probably would not suffer “serious emotional detriment” if he were separated from them.
Dr. Chadwick, Director of the Center of Child Protection at Children’s Hospital in San Diego, and one of the physicians who examined Troy shortly after he was admitted to the hospital, testified Troy suffered from an “extreme” case of “nonorganic failure to thrive,” and that he “came within a hairsbrea[d]th of dying of starvation.” Dr. Chadwick stated that two photographs of Troy taken the day after admission to the hospital fairly and accurately depicted Troy’s condition on admission, and he verified that six additional photographs, taken the day before his testimony, accurately reflected Troy’s condition three months after admis-
Mr. Gardner, a social worker, testified that in his 20 years’ experience he had never seen a “failure to thrive” case as severe as this one, and recommended against attempting to provide reunification services in this case because, inter alia, (i) he felt there was merely a 30 percent chance of successful reunification, (ii) he believed “the parents have not grasped the point of their responsibility,” and (iii) research articles suggest that in such cases “when a child is reunited . . . the prognosis turns out to be quite poor in the best of situations.”
The court added that it also made that finding “beyond a reasonable doubt.”
In making this determination the court was directed to consider, inter alia, (1) “[t]he failure of the parent to respond to previous services,” and (2) “testimony by a competent professional that the parent’s behavior is unlikely to be changed by services.” (§ 361.5, subd. (c), 3d par.)
The parents expressly declined to contest the propriety of the jurisdiction findings under section 300, subdivisions (a) and (b).
Under that section, the court is required to select a long-term plan for the minor from among four options, which range from permanently severing parental rights to placing the minor in long-term foster care. (§ 366.26, subd. (b) (l)-(4).) Return of the minor to the parents is not an available option.
The parents did not assert in the Court of Appeal that the trial court abused its discretion in denying their motion to set aside their no contest pleas. We reject John Z.’s assertion that the trial court’s denial of their motion to withdraw, by itself, automatically rendered the issue of the application of section 300(e) appealable under section 395. (The latter section allows appeal from “any subsequent order” following an order after judgment.)
10No issue is raised in this case concerning the “jurisdictional . . . legality of the proceedings,” as that phrase is used in Pinon, supra, 96 Cal.App.3d 904, and DeVaughn, supra, 18 Cal.3d 889. The parents do not fall within the exception merely because they now seek to challenge the court’s finding at the “jurisdictional hearing” that the minor falls within the statutory “jurisdiction” of the family court.
Lest there be any confusion, we expressly reject the parents’ assertion that the alleged legal inapplicability of section 300(e) to their conduct somehow renders their claims cognizable on appeal following their no contest pleas. As explained above, an essentially identical argument was raised, and properly rejected, in Pinon, supra, 96 Cal.App.3d 904.
John Z. attacks the judgment on the additional ground that he was denied effective assistance of counsel at the jurisdiction hearing because counsel permitted him to plead no contest to the section 300(e) allegations. Assuming arguendo that such a claim is cognizable in these circumstances, and that a parent may attack a disposition order on this ground (but see In re Malinda S. (1990) 51 Cal.3d 368, 384 [272 Cal.Rptr. 787, 795 P.2d 1244], quoting In re Mary S. (1986) 186 Cal.App.3d 414, 418-419 [230 Cal.Rptr. 726] [“ ‘Nor can the parent seek reversal on grounds of incompetency of counsel.’ ”]), this claim is nonetheless meritless. As noted above, both parents were under arrest and facing possible felony charges relating to these events at the time they entered their no contest pleas at the jurisdiction hearing. Furthermore, as noted above, counsel and the court agreed that “tactical” and “strategic” considerations motivated the pleas. Under these circumstances, counsel for John Z. might have believed that a no contest plea to the jurisdiction allegations might assist John Z. in his criminal case. Accordingly, because the record does not affirmatively disclose that counsel had no rational tactical purpose supporting John Z.’s no contest pleas to section 300(e), we have no basis on which to conclude that counsel performed unreasonably.
Having reached this conclusion, we deny as moot DSS’s July 9, 1992, motion to strike references in John Z.’s brief to information contained in his criminal file.
Reference
- Full Case Name
- In re TROY Z., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, and v. SANDRA Z., and
- Cited By
- 1 case
- Status
- Published