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Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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III. Issues Arising From the Jurisdictional Hearing.

A. Are these issues reviewable on appeal?

B. What is the purpose of the jurisdictional hearing?.

C. Did the court give appellant adequate notice of the jurisdictional hearing?.

D. Did the court improperly deny the parent's request for a continuance?.

E. Did the court make its jurisdictional findings based on the correct standard of proof?.

F. Did the social services department bear its burden of proof?.

G. Were there appropriate grounds for jurisdiction generally?.

H. Were there the proper specific grounds for jurisdiction?.

I.  Admissions or no-contest pleas.

J. Is the issue being raised from the jurisdictional hearing waived?.

K. Is the issue being raised from the jurisdictional hearing moot?

III. Issues Arising From the Jurisdictional Hearing.

  1. Are these issues reviewable on appeal?
    1. These issues are only reachable in an appeal from the dispositional order.  (In re Megan B. (1991) 235 Cal.App.3d 942, 950; In re James J. (1986) 187 Cal.App.3d 1339, 1342.)

    2. But if at the dispositional hearing there is a denial of all reunification services and a 366.26 referral is made, only writ review is available for issues arising from the jurisdictional hearing.  (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1646.)

    3. If the court did not properly notify the parents of the requirement of filing the writ, issues may be raised in the appeal from the 366.26 hearing.  (In re Rashad B. (1999) 76 Cal.App.4th 442, 446‑450; In re Cathina W. (1998) 68 Cal.App.4th 716, 719‑724.)
  2. What is the purpose of the jurisdictional hearing?
    1. The sole issue at this hearing is whether the child is a person described by Welfare and Institutions Code section 300 and therefore, comes within the court's jurisdiction.
  3. Did the court give appellant adequate notice of the jurisdictional hearing?
    1. Where the father received notice of the jurisdictional hearing only on the day of the hearing, the Fourth District, Division One, concluded this amounted to a deprivation of the father's due process right to adequate notice and a meaningful opportunity to be heard.  (In re Brendan P. (1986) 184 Cal.App.3d 910, 916.)

    2. The California Supreme Court has also reversed a jurisdictional order for failure to notify the children's mother, a foreign national, of the proceedings.  (In re B.G. (1974) 11 Cal.3d 679, 688.)
  4. Did the court improperly deny the parent's request for a continuance?
    1. Counsel for the parent, child, or petitioner may move for a continuance for a period shown to be necessary by the evidence.  The motion will be granted on a showing of good cause if not contrary to the child's interest.  (Welf. & Inst. Code, § 352, subd. (a).)

    2. Typical circumstances in which a continuance should be granted: the social study is not provided, counsel needs to be appointed or needs to prepare, a necessary witness is not available.

    3. It may be a denial of due process if the parent was denied notice and the opportunity to be heard because the court does not order a continuance (even if counsel did not so request) where the parent's attorney was appointed a few days before the hearing and has been unable to contact the client.  (In re C. P. (1985) 165 Cal.App.3d 270, 271.)
  5. Did the court make its jurisdictional findings based on the correct standard of proof?
    1. The standard is preponderance of the evidence.  (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.)
  6. Did the social services department bear its burden of proof?
    1. The burden of proof can be met by submission of a social study report.  (Cal. Rules of Court, rule 1450(c).)
      1. Was the preparer of the report available for cross-examination, did the parent have the opportunity to subpoena and cross-examine witnesses whose statements are contained in the report or its attachments, and did the parent have the opportunity to call witnesses, so as to satisfy due process?  (In re Malinda S. (1990) 51 Cal.3d 368, 382-385.)
      2. Did the parent make a timely objection to any hearsay statements in the report and if so, did the department then satisfy the additional statutory requirements regarding those statements?  (Welf. & Inst. Code, § 355; Cal. Rules of Court, rule 1450(d).)
        1. Hearsay statements of a child victim may be admitted if the court finds the time, content, and circumstances of the statements provide sufficient indicia of reliability (In re Cindy L. (1997) 17 Cal.4th 15, 29), and "if the statements are corroborated, and if the interested parties have notice that the statements will be used. [Citation.]." (In re Lucero L. (2000) 22 Cal.4th 1227, 1231, plur. opn..) The nonexclusive list of indicia of reliability includes: "(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate." (Id. at p. 1239.)
  7. Were there appropriate grounds for jurisdiction generally?
    1. Standard of review for sufficiency-of-evidence claims is the substantial evidence test.  (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875; In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
  8. Were there the proper specific grounds for jurisdiction?
    1. Risk of serious physical harm (Welf. & Inst. Code, § 300, subd. (a)): the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the parent.
      1. Is drug use by the parent sufficient to sustain jurisdiction?
        1. Yes, if the mother was using drugs while pregnant.  (In re Stephen W. (1990) 221 Cal.App.3d 629, 638.)
        2. But a toxicology screen (presumptive test) of the mother taking drugs during pregnancy is insufficient without a confirmation test.  (Pen. Code, § 11165.13.
      2. Is spanking of the child sufficient to sustain jurisdiction?
        1. Age-appropriate spanking to the buttocks where there is no evidence of serious physical harm is insufficient evidence of physical abuse.  (Welf. & Inst. Code, § 300, subd. (a); In re Joel H. (1993) 19 Cal.App.4th 1185, 1202.)
    2. Failure to protect (child neglect) (Welf. & Inst. Code, § 300, subd. (b)): the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness.
      1. Were the three necessary elements shown?  (1) neglectful conduct by the parent; (2) causation; and (3) serious physical harm to minor or substantial risk of such harm.  (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
      2. Is past abuse sufficient to sustain jurisdiction?
        1. Evidence of past events may have some probative value in considering current conditions. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
        2. But under section 300, subdivision (b), this is only true if circumstances exist that make it likely the children will suffer the same type of "serious physical harm or illness" in the future.  (In re Janet T. (2001) 93 Cal.App.4th 377, 388.)
      3. Is a parent's mental illness sufficient to sustain jurisdiction?
        1. No, if there is no showing of actual harm to the minor or substantial risk of such harm.  (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.)
      4. Is failure to provide medical treatment a sufficient basis to sustain jurisdiction?
        1. Yes, if the parents continue to believe that herbal treatment is adequate, despite a doctor's statement about the risks of infection.  (In re Petra B. (1989) 216 Cal.App.3d 1163.)
        2. But the court must defer to the parent's nontreatment or spiritual treatment through prayer and not assume jurisdiction "unless necessary to protect the child from suffering serious physical harm or illness."  (Welf. & Inst. Code, § 300, subd. (b).)
        3. Where the surgery has a risk of death, even a small risk, the parents are within their rights to refuse surgery for the child.  (In re Phillip B. (1979) 92 Cal.App.3d 796, 802.)
      5. Is domestic violence in the same house sufficient to sustain jurisdiction?
        1. "[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk."  (In re Heather A. (1996) 52 Cal. App.4th 183, 194.)
      6. Is a parent's failure to ensure a child's attendance at school sufficient for jurisdiction?
        1. No.  While lack of education may cause psychic, emotional, financial, or social harm, there were no facts to indicate mother's failure to ensure the children's regular school attendance subjected the children to physical injury or illness, serious or otherwise.  (In re Janet T. (2001) 93 Cal.App.4th 377, 389.)
    3. Emotional abuse (Welf. & Inst. Code, § 300, subd. (c)): the child has suffered, or there is a substantial risk that the child will suffer, serious emotional damage.
      1. Petition must allege either abusive behavior by parent that results in severe emotional damage (In re Alexander K. (1993) 14 Cal.App.4th 549, 559) or that the child has no parent or guardian capable of providing adequate care.

      2. Can parental inaction or inability to provide adequate mental health treatment be sufficient?
        1. Yes.  (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
        2. No, if the failure to provide adequate mental health treatment is the result of a sincerely-held religious belief, and less intrusive judicial intervention is available. (Welf. & Inst. Code, § 300, subd. (c).)
      3. Jurisdiction cannot be sustained simply because the child is upset over a parents' divorce.  (In re Brison C. (2000) 81 Cal.App.4th 1373, 1376 [even assuming that the parents' conduct prior to the child's removal rose to the level of emotional abuse, respondent failed to proffer substantial evidence showing that at the time of the hearing the minor was seriously emotionally disturbed or that he was in substantial danger of suffering serious emotional damage].)

      4. But jurisdiction has been sustained where the child suffered severe anxiety, depression, withdrawal, or untoward aggressive behavior due to parents' fighting in front of the child.  (In re Shelley J. (1998) 68 Cal.App.4th 322, 330.)

      5. Evidence that the guardians spoke loudly to their child and corrected him was insufficient.  (In re Joel H. (1993) 19 Cal.App.4th 1185, 1203.)

      6. A parent's delusion about the health of her child was sufficient to sustain jurisdiction.  (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1320-1321.)
    4. Sexual abuse (Welf. & Inst. Code, § 300, subd. (d)): the child has been sexually abused or there is a substantial risk that the child will be sexually abused by the parents, guardian, or member of household, or the parent has failed to adequately protect the child from sexual abuse where the parent knew or reasonably should have known that the child was in danger of sexual abuse.

      1. An allegation that a father once lewdly touched his child over one year before the filing of the dependency petition was insufficient to establish jurisdiction, where there was no evidence that the acts would continue in the future.  (In re Alysha S. (1996) 51 Cal.App.4th 393, 399.)

      2. A child's conflicting testimony regarding whether the father molested him was sufficient to sustain jurisdiction.  (See In re Eric H. (1997) 54 Cal.App.4th 955, 960 [dicta].)

      3. c. The court may still sustain jurisdiction even if the identity of the molester is unknown, so long as the parent knew or reasonably should have known that the child was in danger of sexual abuse.  (In re Christina T. (1986) 184 Cal.App.3d 630, 640.)

        d.  The juvenile court could sustain jurisdiction on allegations that the father molested the child, despite the family court's finding to the contrary.  (In re Travis C. (1991) 233 Cal.App.3d 492.)

        e. The juvenile court could properly conclude that a male child was the victim of sexual abuse where his sister had been raped by their father and the boy saw the trauma it caused, even though he did not see the rape.  (In re Karen R. (2001) 95 Cal.App.4th 84, 90.)
    5. Severe physical abuse of a child under five (Welf. & Inst. Code, § 300, subd. (e)): the child has suffered, or there is a substantial risk that the child will suffer, severe physical abuse by a parent or anyone known to the parent, if the parent knew, or reasonably should have known that the person was physically abusing the child.

      1. Does the parent have to be aware of the severity of the physical abuse if the abuse is inflicted by a third party?
        1. No, this subdivision does not require the parent's actual or constructive knowledge that the minor in fact suffered severe physical abuse.  (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1729-1730.)
      2. Does the court need to know the identity of the perpetrator of the abuse before sustaining jurisdiction?
        1. No, as long as the parent knew, or reasonably should have known about the abuse.  (In re E. H. (2003) 108 Cal.App.4th 659, 670.)
    6. Death of another child (Welf. & Inst. Code, § 300, subd. (f)): the parent caused the death of another child through abuse or neglect.

      1. Is a criminal conviction for murder or manslaughter needed?
        1. No.  When a parent participated in acts that resulted in the death of a child and the parent is convicted of a crime other than murder or manslaughter, the trial court must look behind the bare fact of the conviction to the actual facts and circumstances that gave rise to the initial criminal prosecution.  (In re Jessica F. (1991) 229 Cal.App.3d 769, 778.)
    7. No provision for support (abandonment) (Welf. & Inst. Code, § 300, subd. (g)).
      1. Must the circumstances of dependency under this subdivision exist at the time of the filing of the petition or at the time of the hearing?
        1. The circumstances must appear at the time of the hearing and not merely in the past.  (In re Aaron S. (1991) 228 Cal. App.3d 202, 208.)
      2. The fact that the child is left with caretakers other than the parents, is not itself a reason to sustain a jurisdictional finding if the child receives good care.  (See In re T. M. R. (1974) 41 Cal.App.3d 694, 700-701 [construing the issue in the context of subdivision (b)].)

      3. Is a parent's incarceration standing alone grounds for jurisdiction?
        1. No, as long as the parent has provided for the care of the child.  This subdivision applies only when at the time of the hearing, a parent has been incarcerated and does not know how to make, or is physically or mentally incapable of making, preparations or plans for the care the child.  (In re Aaron S. (1991) 228 Cal.App.3d 202, 208.)
    8. Relinquishment (Welf. & Inst. Code, § 300, subd. (h)): "The child has been freed for adoption by one or both parents for 12 months by either relinquishment or termination of parental rights or an adoption petition has not been granted."

      1. When is this subdivision used?
        1. It is intended to address situations in which a legal orphan (i.e., a child whose parents have had their parental rights terminated but no adoptive placement for the child has been found) has been removed from a prospective adoptive placement.
    9. Cruelty (Welf. & Inst. Code, § 300, subd. (i)): child is subject to act or acts of cruelty and if parent was not the perpetrator, the parent knew or reasonably should have known.
      1. What is the difference between subdivision (i) and subdivisions (a) and (e)?
        1. Subdivision (i) is usually (but not necessarily) used when there are multiple inflictions of painful injuries.  (See In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1642 [child sustained multiple fractures of her left leg and rib fractures and had been repeatedly mishandled physically by her mother]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1472 [child sustained visible pinch marks from the father's pinching her in anger].)
    10. Abused or neglected sibling (Welf. & Inst. Code, § 300, subd. (j)): the child's sibling has been abused or neglected within the meaning of subdivisions (a), (b), (d), (e), or (i) and there is a substantial risk that the child will be abused or neglected within the meaning of those subdivisions.

      1. Can it be alleged that the child is at a substantial risk of being emotionally abused due to sibling abuse?
        1. No, the juvenile court has no jurisdiction over a child under subdivision (j), under such circumstance, since that subdivision does not include allegations of emotional harm based on sibling abuse.   (In re Amy M. (1991) 232 Cal.App.3d 849, 865.)
      2. Can a male child come within this subdivision when jurisdiction has been sustained as to the female child due to sexual abuse by her father?
        1. No, if there has been no demonstration that there is a substantial risk to the boy that he will be abused or neglected.  (In re Rubisela E. (2000) 85 Cal.App.4th 177, 199.)

        2. But see In re Karen R. (2001) 95 Cal.App.4th 84, 90 [disagreeing with Rubisela E., to the extent that it suggests that only female siblings are in substantial danger of sexual abuse after a sexually-abused female sibling has been removed from the home due to sexual abuse by a father].)
      3. Was there sufficient evidence presented of the factual basis for the jurisdiction over the sibling, such that the minor was also at risk of suffering the same abuse or neglect?
        1. Where the agency simply requested that the juvenile court refer back to the documents filed in the siblings' cases, did not attach those documents, the court did not take judicial notice of them, and the court never stated whether it had considered the documents, the agency did not bear its burden of proving the subdivision (j) allegation.  (In re Ricardo L. (2003) 109 Cal.App.4th 552, 569.)
  9. Admissions or no-contest pleas.

    1. Did the court give appellant the proper advisements before taking the plea?
      1. The court must advise appellant that he or she is giving up the following rights: (1) the right to a hearing by the court on the issues raised by the petition; (2) the privilege against self‑incrimination; (3) the right to confront and cross‑examine all opposing witnesses; and (4) the right to compel attendance of witnesses. (Cal. Rules of Court, rule 1449(b).)

      2. The parent personally must make the admission.  (Cal. Rules of Court, rule 1449(d).)

      3. The prejudicial nature of failure to give these advisements is subject to the harmless-beyond-a-reasonable-doubt standard enunciated in Chapman v. California (1967) 386 U.S. 18, 24.  (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377.)
  10. Is the issue being raised from the jurisdictional hearing waived?
    1. Insufficiency-of-evidence claims.

      1. No, if appellant submitted on the social worker's report.  (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 812.)

      2. Yes, if appellant submitted on the social worker's recommendation.  (In re Richard K. (1994) 25 Cal.App.4th 580, 590.)

      3. Yes, if appellant admitted the allegations or entered a no-contest plea.  (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.)

      4. Yes, if the claim is that the information in the social worker's report is inaccurate or incomplete and the issue was not raised below.  (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)
    2. A claim that the petition did not state a cause of action.
      1. Split on the issue: the Sixth District Court of Appeal found the issue waived (In re Shelley J. (1999) 68 Cal.App.4th 322, 328), as did the Fourth District, Division Three (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037), but the Third District Court of Appeal disagreed (In re Alysha S. (1996) 51 Cal.App.4th 393, 397).
  11. Is the issue being raised from the jurisdictional hearing moot?
    1. Yes, if the issue is sufficiency of the evidence and at the review hearing, appellant stipulated that conditions still exist that justify the initial assumption of jurisdiction.  (In re Eric A. (1999) 73 Cal.App.4th 1390, 1394.)
    2. No, even if the dependency matter has been dismissed, because if the child should again become the subject of dependency proceedings, the jurisdictional finding or order would have res judicata effect.  (In re Joel H. (1993) 19 Cal.App.4th 1185, 1193.)

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