IN RE: Ashton R. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. JAMES R., Defendant and Appellant; ASHTON R. et al., Appellants.
Nos. J10–01077 & J10–01101)
Ashley M., born in June 1993, and Ashton R., born in January 2005,are the children of Jamie W. (Mother). Both were the subject of dependency petitions. James R. is Ashton's father and lived with Mother at the commencement of these proceedings.1 Following the jurisdictional hearing, the court found “not true” all the counts relating to Ashton and the sexual abuse allegations relating to Ashley. Ashton's petition was dismissed. The Minors appeal these rulings, which we affirm in the unpublished portion of this opinion. James appeals Ashley's dispositional order providing her with supervised visitation rights with James's son, Ashton. In the published portion of this opinion, we reverse that order.
In August 2010, the Contra Costa County Children and Family Services Bureau (Bureau) filed a dependency petition alleging that Mother had neglected Ashley's medical needs and failed to provide for Ashley's support (Welf. & Inst.Code, § 300, subds. (b) & (g)),2 and that Ashley had been sexually molested by James (§ 300, subd. (d)). A dependency petition was also filed alleging that James and Mother neglected Ashton's medical needs and that Ashton was at risk of sexual abuse by James. (§ 300, subds.(b) & (d).)
The Bureau's August 9, 2010 detention/jurisdictional report regarding Ashley stated that Mother had not provided proper treatment for Ashley's life-threatening Crohn's disease. The report also stated that Ashley told Melissa C., Ashley's foster mother, that James had continuously sexually abused her from age 11 to age 14. According to Ashley, “[James] did everything to me.” The molestation stopped when Ashley began menstruating. After interviewing Ashley twice, the police said her statements were consistent and detailed and she appeared to be truthful about the molestation. James was arrested on July 21 for molesting Ashley. The August 11 detention/jurisdictional report regarding Ashton stated that in September 2006, at 20 months of age, he was diagnosed as overweight and Parents failed to follow through with a diet plan or additional medical visits until June 2010, when he was described as extremely obese and had high blood pressure. Ashton also had documented speech problems for which Mother failed to begin treatment.
Ashton was ordered detained solely from James. Ashley was ordered detained from Mother and ordered to have no contact with James. Parents elected to be represented by the same attorney.
An August 25, 2010 memo from a Bureau social worker noted Ashley reported that Ashton frequently masturbated to the point of causing rawness and abrasions. Ashton told the social worker that he missed Ashley.
In September 2010, Parents moved for an order prohibiting visitation between the Minors. The Bureau filed a response thereto.
In October 2010, the Bureau filed an amended section 300 petition regarding Ashley alleging that Mother failed to provide medical care resulting in Ashley's hospitalizations and a life threatening emergency and failed to protect Ashley from James's molestation.3 The Bureau also filed a second amended section 300 petition regarding Ashton alleging that Parents neglected his medical needs, and he was at risk of sexual abuse by James as a result of James's sexual abuse of Ashley. It also noted Parents failed to acknowledge and seek treatment for Ashton's behavior of masturbating to the point of hurting his penis.
On December 10, 2010, the court ordered supervised monthly visitation between the Minors.
December 2010 Jurisdictional Report
The Bureau's December 2010 jurisdictional report regarding the Minors included various proposed witness statements.4 Ashley would testify she obtained permission to live with a family friend whose home environment was less stressful than living with Mother and Ashton. Ashley would also testify that during the relevant period James committed vaginal and anal penetration and oral copulation, and asked her to orally copulate him. Ashley's friend since third grade, Teresa B.,5 would testify that during an eighth grade art class, Ashley was upset and crying. When asked by Teresa whether James had “done anything to” or had raped Ashley, Ashley nodded affirmatively. Teresa would also testify that she wrote in her journal about Ashley's being raped and abused by James and that the journal was with the Martinez Police Department. Mother would testify that Ashley never disclosed to her that she was being molested by James. As to the allegations regarding Ashton, Ashley would testify that Ashton masturbated until his penis was raw and bruised and he had complained to her that his penis hurt. Ashton would testify that he told his attorney that he touched his penis sometimes and it hurt.
Police Reports 6
An August 4, 2010 police report stated that Ashley reported that, shortly after the abuse stopped, she told Teresa she had been raped by James; Ashley had not told anyone else. An August 17 supplemental report stated that Ashley again said she told only Teresa about the incidents with James. An August 19 supplemental report stated that Martinez Police Investigator Fred Ferrera attempted to contact Teresa, but she did not return his calls. Melissa told Ferrera she had been in contact with Teresa, who said she would call Ferrera, but Teresa did not do so.
At the jurisdictional hearing, Melissa testified that she and Mother had been friends since elementary school. Ashley had been living with Melissa since May 2010. According to Melissa, the Minors are “very close.” Ashley was Ashton's primary caretaker on a daily basis for the first three years of his life and he preferred Ashley over Mother when he got hurt. Ashley complained to Melissa about missing out on time with friends because she had to take care of Ashton. Ashley told Melissa she had stopped taking the medicine prescribed for her Crohn's disease because she hated her life and wanted to die. Ashley also told Melissa she and Mother fought a lot and she was afraid of Mother. Ashley first lived with Melissa for a few months after a month-long hospitalization. In May 2010, after living with Mother for five or six months, Ashley got sick again and resumed living with Melissa. When Ashley turned 17 years old, she and Melissa had a conversation about lying and telling the truth. Thereafter, Ashley told Melissa that James had raped her between the ages of 11 and 14. Melissa said that, the year before, Ashley had told this to Melissa's daughter, who was 13 years old at the time of the jurisdictional hearing. After Ashley told Melissa, Melissa told her boyfriend to call the police. Ashley then described the details of James's molestation to Melissa. Ashley told Melissa she had told Teresa about the molestation during junior high school, while the molestation was occurring. Melissa said she called Teresa's mother that night.
Ashley testified she began taking primary care of Ashton when he was three months old and Mother went back to work. She described her relationship with him as “very strong” and said she was “practically his mom.” After Ashley got sick and was hospitalized, “CPS” told Mother Ashley had to go to school and could not stay home to watch Ashton.
Ashley described in detail James's molestation of her beginning at age 10 or 11. She said that at a certain point Mother told her Mother and James were fighting and were no longer having sexual relations. Ashley said she eventually told her best friend, Teresa, that James had raped her. She said she may have told Teresa that it only occurred one time, but she could not remember. She also admitted that she falsely told Teresa that during the rape she was screaming “no.” She testified she knew it was wrong, but allowed it, and initiated sex with James 30 to 40 percent of the time. Ashley said Teresa complied with her request not to tell anyone. Ashley said when she was about 13 years old she started telling James she wanted the sex with him to stop and she stopped initiating it. When she began menstruating at age 14, James stopped having sex with her. Ashley said that, when she was 15 or 16 years old, she told her friend “Maurice” about the sex with James. Thereafter, Melissa read about it in one of Ashley's diaries. When Melissa asked if Ashley had been molested by James, Ashley answered affirmatively.
On cross-examination by the Minors' counsel as to whether she ever observed Ashton masturbating, Ashley said she saw him touching his penis, but was not sure whether he was masturbating. She had seen Ashton's penis when it was “red” but not “where it got bad, because [she] heard [Mother] and [James] talking about how it got really bad and it was bleeding and how they had to put Vaseline on it, and they had to be careful when they washed him.”
On cross-examination by Parents' counsel, Ashley said she was a virgin when James first molested her. She said that, in April 2007, when she talked to her high school counselor about being physically abused by Mother, she did not tell the counselor about the molestation because James would go to jail and Mother would be angry at her. Ashley said she falsely told the Bureau social worker she had had sex in the sixth or seventh grade with someone a year or two older than she. In fact, she was having sex with James at that time. Ashley said that, because she did not want to think about the past, she falsely told her pediatrician in January 2010 that she had not yet been sexually active, but had a boyfriend and wanted to “prepare.” She also said that while hospitalized in June 2009, she requested to talk with a hospital social worker about the child protective services process because she did not want to live with Mother and wanted to get “away from her.” During the meeting, Ashley did not tell the social worker she had been molested by James because she did not want to have to go to court, did not want James to “get in trouble,” and did not want Mother to “hate [her] forever.” Ashley also testified that, when she was admitted to the hospital in March 2010, she answered “no” to the question whether she had ever felt afraid of a family member or had been physically hurt or felt threatened in a relationship. The parties stipulated that when Ashley's doctors inquired whether she had suffered sexual abuse, she did not report being molested by James.
Bureau social worker Roslyn Gentry testified she had been involved with this case since October 2010. She said that sibling visitation between the Minors had not occurred because Mother had not responded to her calls to set up the visits.
Mother testified that, when she worked nights, Ashley cared for Ashton after school for about three hours until James came home. After being hospitalized in 2009 and telling the social worker that caring for Ashton was stressful, Ashley never again took care of Ashton. Mother said that after James was arrested, social workers informed Mother that Ashley wanted to visit Ashton. Mother did not think visitation was a good idea because she was concerned about what Ashley would say about James and who would supervise the visits.
Mother said she was unaware of anything inappropriate regarding the relationship between Ashley and James and had no indication from either of them that James was molesting Ashley. Ashley never indicated to Mother she was uncomfortable with James and told Mother she was a virgin. Mother said she never saw Ashton's penis red and raw from masturbation and never saw any injury to his penis.
On cross-examination, Mother testified that the Minors had a strong relationship during the first few years of Ashton's life. She denied refusing visits between the Minors and said Ashley had two visits with Ashton.
James testified he lived with Mother from early 2003 until his 2010 arrest. He denied all of Ashley's allegations of sexual abuse. He said Ashley's testimony that she started taking care of Ashton when he was three months old was not true. He said Ashley babysat Ashton four to six hours a week for about a year.
During closing arguments, the Bureau's counsel, Marke Estis, argued that Ashley's testimony regarding the sexual abuse was “very believable” and she had no motivation to lie. In particular, Estis noted that the Bureau's December 2010 jurisdictional report stated that, in the eighth grade, Ashley had told her schoolmate, Teresa, about James's molestation. Estis argued that Teresa's statement was not objected to and, therefore, the court should accept it as though Teresa had testified at the hearing. Estis argued that Teresa's statement corroborated Melissa's testimony that Ashley told Melissa she had told Teresa about the molestation while it was occurring. The Minors' counsel also argued that Ashley's allegations were credible and the amended petitions should be sustained.
In arguing that the petitions should be dismissed, Parents' counsel asserted that Ashley was manipulative, and her testimony was inconsistent and not credible.
At the commencement of its oral statements following the jurisdictional hearing, the court stated that it had read “literally every single page of every single exhibit.” It found that Ashley lies and manipulates people to get her way, and there were numerous lies and inconsistencies in her testimony. It noted that Teresa, Maurice, and Melissa's daughter were not called to testify at the hearing; and Ashley's diary, allegedly containing information about the molestation, was not produced. The court found that Ashley was not credible, trustworthy, or reliable, and it did not sustain the sexual abuse (§ 300, subd. (d)) or failure to support (§ 300, subd. (g)) allegations in Ashley's petition. The court sustained only the allegation in Ashley's petition, under section 300, subdivision (b), that Mother failed to provide and ensure medical care resulting in Ashley's hospitalizations and a life-threatening medical emergency. It found not true all of the allegations in Ashton's petition and ordered it dismissed.
February 2011 Dispositional Report
The Bureau's February 2011 dispositional report recommended that Ashley be adjudged a ward of the juvenile court and reunification services be offered to Mother. The report stated that Ashley was still residing with a nonrelated extended family member and Ashton was residing with Mother and James. It also stated that Ashley had had very little contact with Ashton. In February 2011, Ashley had three social worker supervised visits with Ashton which went well. Ashley did not speak negatively about Mother during the visits. However, thereafter, Parents decided they did not want to continue the visits; calls to Mother and her attorney were not returned and visits did not resume. The social worker concluded that it would be in the Minors' interests to maintain their relationship, which the social worker described as “significant.” The report requested that Parents make Ashton available for visitation with Ashley and commit to a consistent visitation schedule. However, the Bureau's recommended order did not include visitation between the Minors.8
March 2011 Dispositional Hearing
At the March 21, 2011 dispositional hearing, Mother's counsel argued that Parents requested there should be no visitation between the Minors until Ashley had undergone a certain number of therapeutic appointments. The court refused the request. Mother's counsel informed the court that Parents had “split up” and James and Ashton had relocated to Texas. Mother said she agreed to Ashton's relocation. Ashley's counsel stated that Ashley's primary concern was that she be able to see Ashton. The court ordered Ashley to have twice monthly, supervised visitation with Ashton, to be paid for by Parents, but acknowledged such visits are unlikely unless James and Ashton return from Texas. The court ordered Mother to advise the Bureau if Ashton is in town. The court's written dispositional order specified that Ashley is to have supervised visitation with Mother, Ashton, and Robert M. As to Ashton, it specified twice monthly one-hour visits. Responsibility for payment of supervision during visits is not mentioned in the written dispositional order.
I. The Minors' Appeal 8
The sole issue raised by the Minors is that the juvenile court's dismissals of the sexual abuse allegations in Ashley's petition and in Ashton's petition were erroneous because the court “overlooked” Teresa's corroborating statement contained within the Bureau's jurisdictional report.
The Minors note that, at the jurisdictional hearing, the court stated the following regarding Teresa: “[W]hen the officer tries to contact the one person Ashley claims to have told about this, Teresa ․, he's never able to reach her․ [Melissa], though, this is interesting, last sentence in the police report the officer talks again with [Melissa]. Between July 11th and the date he wrote his report, August 17th, Melissa said, ‘I have been in contact with Teresa, and she will call you.’ So Melissa suddenly is taking on the job of an investigating police officer. Nobody asked her to do that. ‘Officer, I talked to her. She's going to call you.’ Guess what? She doesn't. Why would Melissa do this? Why? She's more invested. Again, this child is Ashley's friend, not her friend. I find that very curious. No one finds her; no one brings her to court. Clearly, she doesn't want to have anything to do with this, even if somebody did find her. And she doesn't ever give a statement to the police.” (Italics added.)
The Minors also note that the December 2010 jurisdictional report contains the Martinez address and telephone number for Teresa as well as the following proposed witness statement: “If present and called to testify T[eresa] would testify that she is a friend of Ashley's. She would go on to explain that they have been friends since the 3rd grade. She would go on to state that one day while they were in an 8th grade Art class, Ashley was visibly upset and crying. She began to question her to find out what was wrong. She would report that she was concerned as she was aware of previous incidents Ashley had shared with her about her mother being mean and abusive to her by pulling her hair. As she continued to probe, she asked Ashley if [James] had done anything to her or if he had raped her and she nodded her head yes. T[eresa] would conclude her testimony by sharing that she wrote in her journal about Ashley, the abuse she suffered and being raped by [James] and that the journal with that particular entry was with the Martinez Police Department at this present time.”
The Minors argue that these matters, contained within the jurisdictional report, establish that the court “overlooked” substantial evidence in support of the sexual abuse allegations.
B. Standard of Review
Where, as here, “the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ [Citation.]” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) “[W]e presume in favor of the [juvenile court's] order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
In conducting our review we have “no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] ‘Issues of fact and credibility are questions for the trial court.’ [Citations.] It is not an appellate court's function, in short, to redetermine the facts. [Citation.] Absent indisputable evidence of abuse—evidence no reasonable trier of fact could have rejected—we must therefore affirm the juvenile court's determination.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 199–200.)
The Minors do not argue that the court erroneously failed to admit Teresa's corroborating statements contained within the jurisdictional report. Instead, they argue the court “overlooked” or “missed” the evidence. They note that, pursuant to section 355,9 the hearsay statements regarding Teresa contained within the jurisdictional report were admissible, and no hearsay objection was tendered to this evidence. We presume in support of the court's order that the court followed the applicable law (In re Julian R. (2009) 47 Cal.4th 487, 499 [trial court is presumed to have followed applicable law] ) and understood that Teresa's statements in the jurisdictional report were admissible. The court made it very clear at the outset of the jurisdictional hearing that it considered every exhibit. The December 2010 jurisdictional report and the police reports were both exhibits admitted into evidence and both stated that Ashley told Teresa about James's molestation. A supplemental police report expressly stated that Ferrara had attempted to contact Teresa, but she did not return his calls.
This case turned on the juvenile court's express determination that Ashley was not credible. The court also questioned the credibility of Melissa. Therefore, the court could properly give little or no weight to the proposed testimony of Ashley's friend, Teresa, who failed to return Ferrara's phone calls and was not called as a witness at the jurisdictional hearing. We are not in a position to second guess the court's credibility determinations or the weight it assigned to the evidence. The Minors have failed to demonstrate error.
II. James's Appeal
James contends the court lacked authority to order visitation between the Minors and, therefore, the visitation order is voidable. He argues that since Ashton's dependency petition was dismissed without a finding of jurisdiction, the court had no authority over Ashton. James also argues that since he is not the father of Ashley, he was not subject to the court's jurisdiction.
A. Waiver 9
Preliminarily, the Bureau argues that James has waived the issue of sibling visitation by failing to object thereto below. It asserts that at the dispositional hearing Parents stated that they objected to visitation between the Minors until Ashley received therapy, but did not object to the issue of visitation itself. This is an overly narrow reading of the record before us.
Parents first objected to visitation between the Minors shortly after the dependency petitions were filed and continued to object thereto. The dispositional report noted that Parents decided they did not want to continue the visits. Since Ashton's dependency petition was dismissed following the jurisdictional hearing, James was not a party to the dispositional matter concerning Ashley. James was neither present nor represented by counsel at the dispositional hearing. We, therefore, reject the Bureau's assertion that James waived the issue of sibling visitation.
B. Standing 9
As James concedes, since the dispositional order ordering Ashley's visitation with Ashton, a nondependent of the court, was made in Ashley's dependency case, James arguably does not have standing to challenge that order because he was not a party to that case. However, he makes three arguments supporting his standing to challenge the visitation order. First, he argues that, as the custodial parent of Ashton, who was not a dependent of the juvenile court, he possessed a fundamental liberty interest in parenting Ashton free from government intervention. Second, he argues that, since the court ordered that he be responsible for paying for the supervised visitation, he is personally aggrieved by the visitation order. Finally, he argues that, since he and Mother both objected to Ashley's visitation with Ashton, his and Mother's interests interweave such that each has standing.10
The Bureau argues that the visitation order involves Mother, who has not appealed, and the Minors. It argues that an August 2010 memo reflects Ashton's desire to see Ashley and Ashley's desire to see Ashton. Therefore, James's interests do not interweave with either child.
“ ‘Generally, parents can appeal judgments or orders in juvenile dependency matters. [Citation.] However, a parent must also establish she [or he] is a “party aggrieved” to obtain a review of a ruling on the merits. [Citation.] Therefore, a parent cannot raise issues on appeal from a dependency matter that do not affect her [or his] own rights.’ [Citation.]” (In re S.A. (2010) 182 Cal.App.4th 1128, 1134.) To be aggrieved, a party must have a legally cognizable immediate, pecuniary and substantial interest which is injuriously affected by the court's decision. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737; In re S.A., at p. 1134.) “ ‘A nominal interest or remote consequence of the ruling does not satisfy’ the standing requirement. [Citation.] An appellant cannot urge errors that affect only another party who does not appeal. [Citation.]” (In re S.A., at p. 1134.)
Pursuant to this standard, James has standing to appeal the sibling visitation order. At the dispositional hearing, the court stated that Parents would be responsible for paying for the supervised visitation between the Minors. Although the clerk's transcript does not mention the responsibility for payment for the supervised visitation, where, as here, the court's oral statements in the reporter's transcript differ from the recitals in the clerk's transcript, the oral statements control. (In re A.C. (2011) 197 Cal.App.4th 796, 799–800; In re Merrick V. (2004) 122 Cal.App.4th 235, 249.) James's responsibility for payment of the supervised visitation implicates an immediate, substantial, and pecuniary interest that would be injuriously affected by the visitation order. As such, James is aggrieved by the visitation order and, therefore, has standing to appeal.11
James contends the court acted in excess of its jurisdiction in ordering supervised visitation between the Minors and in ordering James to facilitate and pay for those supervised visits.12 James argues that because he is not Ashley's parent and because the court dismissed Ashton's dependency petition without adjudging Ashton a dependent child of the court, it lacked subject matter jurisdiction and in personam jurisdiction over James and Ashton.
“ ‘A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction “relates to the inherent authority of the court involved to deal with the case or matter before it.” [Citation.] Lack of jurisdiction in this “fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” [Citation.] [¶] In a broader sense, lack of jurisdiction also exists when a court grants “relief which [it] has no power to grant.” [Citations.] Where, for instance, the court has no power to act “except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites,” the court acts without jurisdiction in this broader sense. [Citation.]’ [Citation.] [¶] ‘The consequences of an act beyond the court's jurisdiction in the fundamental sense differ from the consequences of an act in excess of jurisdiction. An act beyond a court's jurisdiction in the fundamental sense is void; it may be set aside at any time and no valid rights can accrue thereunder. In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. [Citations.]’ [Citation.]” (In re Andres G. (1998) 64 Cal.App.4th 476, 482 (Andres G.).)
“In dependency proceedings, ‘ “[a] superior court convened as and exercising the special powers of a juvenile court is vested with jurisdiction to make only those limited determinations authorized by the legislative grant of those special powers.” [Citations.] In the absence of such specific statutory authorization, a juvenile court is vested with authority to make only those determinations which are “incidentally necessary to the performance of those functions demanded of it by the Legislature pursuant to the Juvenile Court Law.” [Citation.]’ [Citation.]” (In re Silvia R. (2008) 159 Cal.App.4th 337, 345–346.)
The filing of Ashton's dependency petition vested the juvenile court with subject matter jurisdiction, i.e., the inherent authority to deal with the case or the matter before it. (Andres G., supra, 64 Cal.App.4th at p. 482.) When the court dismissed Ashton's petition following the jurisdictional hearing, Ashton was no longer in need of the juvenile court's protection and its jurisdiction over him terminated. (See In re Robert L. (1998) 68 Cal.App.4th 789, 794 [exercise of juvenile court jurisdiction must be based on existing and reasonably foreseeable future harm to minor's welfare].)
Thereafter, the subject visitation order was made by the court following the dispositional hearing in Ashley's case. At that hearing, the court had jurisdiction over Ashley, not Ashton. And, since James is not Ashley's father, the court had no jurisdiction over him at that hearing.
Moreover, there is no statutory provision requiring sibling visitation in these circumstances. Section 361.2, subdivision (i) provides: “Where the court has ordered removal of the child from the physical custody of his or her parents pursuant to Section 361, the court shall consider whether there are any siblings under the court's jurisdiction, the nature of the relationship between the child and his or her siblings, the appropriateness of developing or maintaining the sibling relationships pursuant to Section 16002, and the impact of the sibling relationships on the child's placement and planning for legal permanence.” (Italics added.) Because Ashton was not under the court's jurisdiction at the time of Ashley's dispositional hearing, this section is inapplicable.
In support of the court's visitation order, the Bureau relies on section 388, subdivision (b),13 which permits a person who desires a sibling relationship with a child, who is either a dependent of the juvenile court or the subject of a dependency petition, to petition the court to assert that relationship and seek, inter alia, visitation with the dependent child.
Although no such section 388 petition by or on behalf of Ashton was filed in this case, the Bureau asserts, with no citation to the record, “[t]his is in effect what happened at [Ashley's dispositional] hearing.” At Ashley's dispositional hearing, her counsel stated that being able to visit Ashton was of “primary concern” to Ashley. However, nothing in the record reflects any request, formal or informal, from Ashton. Further, section 388, subdivision (b) expressly requires the filing of a verified petition on behalf of a person seeking sibling visitation with a dependent of the juvenile court. Since no such petition was filed here, that section is inapplicable.
Since there is no statutory authority providing for Ashley's visitation with Ashton, the court acted in excess of its dependency jurisdiction in ordering such visitation.
The jurisdictional orders as to Ashley and Aston are affirmed. The dispositional order as to Ashley is reversed to the extent it ordered sibling visitation between her and Ashton. In all other respects it is affirmed.
Superior Court of Contra Costa County, Nos. J10–01077 (
Marin Williamson, under appointment by the Court of Appeal, for minor Appellants.
FN1. Mother is not a party to the instant appeals. Mother and James are collectively referred to as “Parents.” Ashley and Ashton are collectively referred to as “the Minors.”. FN1. Mother is not a party to the instant appeals. Mother and James are collectively referred to as “Parents.” Ashley and Ashton are collectively referred to as “the Minors.”
FN2. All undesignated section references are to the Welfare and Institutions Code.. FN2. All undesignated section references are to the Welfare and Institutions Code.
FN3. At the conclusion of testimony at the jurisdictional hearing, the court amended Ashley's petition to conform to proof that the alleged sexual abuse occurred between 2004 and 2008.. FN3. At the conclusion of testimony at the jurisdictional hearing, the court amended Ashley's petition to conform to proof that the alleged sexual abuse occurred between 2004 and 2008.
FN4. The December 2010 jurisdictional report was admitted into evidence as County Counsel's Exhibit B.. FN4. The December 2010 jurisdictional report was admitted into evidence as County Counsel's Exhibit B.
FN5. In the record, Teresa B. is occasionally referred to as Theresa B.. FN5. In the record, Teresa B. is occasionally referred to as Theresa B.
FN6. Police reports from the Martinez Police Department were admitted into evidence at the jurisdictional hearing.. FN6. Police reports from the Martinez Police Department were admitted into evidence at the jurisdictional hearing.
FN7. The contested jurisdiction hearing took place over a one-month period, between January and February 2011.. FN7. The contested jurisdiction hearing took place over a one-month period, between January and February 2011.
FN8. The report did recommend that Ashley have twice supervised monthly visitation with Mother and monthly supervised visitation with her alleged natural father, Robert M., for whom it was recommended that reunification services be denied. It also provided that the Bureau should consider Ashley's wishes and input from her counsel and treating therapist in establishing the frequency, time, place, and length of visits with Mother and Robert M.. FN8. The report did recommend that Ashley have twice supervised monthly visitation with Mother and monthly supervised visitation with her alleged natural father, Robert M., for whom it was recommended that reunification services be denied. It also provided that the Bureau should consider Ashley's wishes and input from her counsel and treating therapist in establishing the frequency, time, place, and length of visits with Mother and Robert M.
FN8. See footnote, ante, page 1.. FN8. See footnote, ante, page 1.
FN9. Section 355, subdivision (b) provides in relevant part: “A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d).” Subdivision (c)(1) provides in part, “If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions: ․”. FN9. Section 355, subdivision (b) provides in relevant part: “A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d).” Subdivision (c)(1) provides in part, “If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions: ․”
FN9. See footnote, ante, page 1.. FN9. See footnote, ante, page 1.
FN9. See footnote, ante, page 1.. FN9. See footnote, ante, page 1.
FN10. In his reply brief, James asserts that the visitation order impacts his interests in his parent-child relationship with Ashton.. FN10. In his reply brief, James asserts that the visitation order impacts his interests in his parent-child relationship with Ashton.
FN11. Given our determination that James has standing to appeal the visitation order based on being ordered to pay for the supervised sibling visitation, we need not address his other arguments in favor of standing.. FN11. Given our determination that James has standing to appeal the visitation order based on being ordered to pay for the supervised sibling visitation, we need not address his other arguments in favor of standing.
FN12. Since Mother has not appealed the court's order, we disregard James's assertion that the court lacked authority to order Mother to facilitate and pay for the supervised visitation.. FN12. Since Mother has not appealed the court's order, we disregard James's assertion that the court lacked authority to order Mother to facilitate and pay for the supervised visitation.
FN13. Section 388, subdivision (b) provides in part: “Any person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a child who is, or is the subject of a petition for adjudication as, a dependent of the juvenile court, and may request visitation with the dependent child, placement with or near the dependent child, or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child․ The petition shall be verified and shall set forth the following: [¶] (1) Through which parent he or she is related to the dependent child. [¶] (2) Whether he or she is related to the dependent child by blood, adoption, or affinity. [¶] (3) The request or order that the petitioner is seeking. [¶] (4) Why that request or order is in the best interest of the dependent child.”. FN13. Section 388, subdivision (b) provides in part: “Any person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a child who is, or is the subject of a petition for adjudication as, a dependent of the juvenile court, and may request visitation with the dependent child, placement with or near the dependent child, or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child․ The petition shall be verified and shall set forth the following: [¶] (1) Through which parent he or she is related to the dependent child. [¶] (2) Whether he or she is related to the dependent child by blood, adoption, or affinity. [¶] (3) The request or order that the petitioner is seeking. [¶] (4) Why that request or order is in the best interest of the dependent child.”