In re J.F. CA5 ( 2013 )

Filed 3/7/13 In re J.F. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re J.F., a Person Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF F065786
SOCIAL SERVICES,
(Super. Ct. No. 11CEJ300218-1)
Plaintiff and Respondent,
v.
OPINION
I.F.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Fresno County. Timothy A. Kams,
Judge.
Hana B. Balfour, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
* Before Wiseman, Acting P.J., Levy, J., and Kane, J.
I.F. (mother) has challenged juvenile court dispositional orders (Welf. & Inst.
Code, §§ 361 & 361.5 subd. (b)(6)), among others, pertaining to her nine-year-old
daughter, J.1 After reviewing the appellate record, mother’s court-appointed appellate
counsel informed this court she could find no arguable issues to raise on mother’s behalf.
Counsel requested and this court granted leave for mother to personally file a letter
setting forth a good cause showing that an arguable issue of reversible error did exist. (In
re Phoenix H. (2009) 47 Cal.4th 835, 844.)
Mother makes numerous allegations about respondent Fresno County Department
of Social Services (the department), the superior court, and those appointed to represent
her. She assumes this court may reconsider and thoroughly investigate the facts relating
to this case.
However, as discussed below, mother misunderstands the role of an appellate
court and her responsibility as an appellant. None of mother’s allegations constitute a
good cause showing that there is any arguable issue of reversible error. (In re Phoenix
H., supra, 47 Cal.4th at p. 844.) Consequently, we will dismiss her appeal.
PROCEDURAL AND FACTUAL SUMMARY
This case commenced in October 2011 after then eight-year-old J. (child) wrote in
her school journal that she had been spanked. This led to the discovery of marks,
bruising, and welts on the child’s leg. As a result, mother was arrested.2 Although
mother provided relatives’ names for placement, she did not have any contact
information. Consequently, the department detained the child and initiated the
underlying dependency proceedings.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 According to the record, mother was still awaiting trial on felony corporal
punishment and child endangerment charges.
2
Mother admitted she spanked the child with a belt as a means of disciplining the
child, but urged that such discipline was not abusive. It was meant to get the child’s
attention. Mother claimed she only struck the child with the belt eight times, “a swat for
each year” of the child’s age.
By contrast, the child described mother striking her on this occasion 40 times with
the belt for using a short pencil to do her homework. According to the child, this was not
the first time mother injured her. The child also reported she was very afraid of mother
and never wanted to see her again. According to the child, mother had made statements
that she would kill the child. Mother said the child told lies.
Following a two-day contested jurisdictional hearing in February 2012, the court
found the child suffered serious physical harm inflicted non-accidentally by mother, as a
result of mother punishing the child with a belt. Although the court also set a March
2012 dispositional hearing to determine whether it was necessary to adjudge the child a
juvenile dependent and remove her from mother’s custody, among other issues, the
dispositional hearing was repeatedly postponed until September 2012.
In the interim, at least two attorneys appointed to represent mother declared a
conflict and were permitted to withdraw. This led to lengthy continuances to enable
newly-appointed counsel to prepare.
In addition, the department filed a subsequent petition (§ 342) in which it alleged
the child had suffered serious emotional damage as evidenced by her severe anxiety,
depression, withdrawal and untoward aggressive behavior toward herself and others as a
result of mother’s conduct. The child repeatedly reported mother abused her, threatened
to kill her, and told her she (mother) wished the child had never been born.
Consequently, the child exhibited extreme hypervigilance and fear when discussing her
possible return to mother’s care and became so overwhelmed with emotion that she had
both threatened and attempted to harm herself.
3
Pending a hearing on the subsequent petition, the court in May 2012 ordered
therapeutic supervised visits between mother and the child. Once the child was notified
of this, however, her symptoms significantly increased in frequency and severity to the
extent that she threatened to harm herself if she were forced to have contact with mother.
As a consequence, the department filed an ex parte request to suspend the court’s
visitation order. The court made “an interim order only” to suspend its visitation order
until a hearing could be held in mid-June. “Feel[ing] betrayed” by the department, her
attorney, and the court, mother filed on her own a request to reinstate the visitation order,
among other things. Hearing on the department and mother’s competing visitation
requests was delayed, however, when mother’s counsel filed first a peremptory challenge
to the judge who entered the interim order, and later still, declared a conflict of interest
and requested yet another attorney be appointed to represent mother.
By early August, the department changed its recommendation from removal of the
child from parental custody and reunification services for mother to a recommendation
for no services for mother. According to the department, mother met the criteria for no
services under section 361.5, subdivision (b)(6), in that the child had been adjudicated a
dependent under section 300 as a result of the infliction of severe physical harm to her by
mother and it would not benefit the child to pursue reunification with mother.
Notably, mother had participated in parenting, mental health and domestic
violence services that the department had offered her since the fall of 2011. Yet, she still
maintained the only reason hitting the child was considered wrong was because society
labeled it as such. In her view, the entire situation had been blown out of proportion.
The increasing number of legal issues confronting the court led the parties to
lengthen their time estimate for a contested hearing on the subsequent petition, the
competing visitation requests, and the dispositional proceedings. This, in turn, led to
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further delay. Meanwhile, mother made an unsuccessful Marsden motion against her
latest attorney, Brent Woodward.
By the time the hearing eventually commenced in September, mother’s counsel
decided to argue the evidence that was in the record and submit the matter. Mother’s
counsel and the attorneys for the other parties identified the numerous reports that had
been filed in the six-month interim on which they submitted the case.3 Following the
court’s review of those reports and lengthy arguments by the various attorneys, the court
issued its ruling.
The court found the allegations in the subsequent petition true, noting the
significant evidence provided primarily by the child’s therapist. Next, the court found
clear and convincing evidence to remove the child from mother’s custody. The court
then spoke at length and made factual findings to support its decision to deny mother
reunification services pursuant to section 361.5, subdivision (b)(6). In the process, the
court remarked it “strongly” disagreed with mother’s position that she was bonded with
her child and that the system imposed unnecessary and arbitrary roadblocks to her
reuniting with the child. As for visitation, the court found it was clear visitation at that
time would be inappropriate. It quoted from correspondence by the child’s therapist in
this regard and then continued the order suspending visitation.
DISCUSSION
Mother alleges in conclusory style that: (1) counsel was not effective in informing
her of her rights and responsibility to respond to the court in a timely manner; (2) the
September court proceedings violated several statutes including 42 United States Code
section 12203, a federal prohibition against retaliation and coercion; (3) attorney
Woodward did not permit her to testify; (4) the court and attorney Woodward denied her
3 Many of those reports are not contained in the appellate record.
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the opportunity to present factual supportive documents and evidence for her defense;
and (5) court officials and department staff committed perjury and consistently
misrepresented themselves, submitted fabricated documents and thus hindered her right
to due process. Mother offers no details or record citations to support any of these
claims. Although this court granted mother additional time to file a letter detailing these
allegations, mother instead asked us to reconsider and conduct a thorough investigation
of the facts and made numerous, additional unsupported factual claims.
An appealed-from judgment or order is presumed correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) It is appellant’s burden to overcome the presumption of
correctness and to show reversible error. (State Farm Fire & Casualty Co. v. Pietak
(2001) 90 Cal.App.4th 600, 610.) To do so, the appellant is responsible for providing an
adequate record demonstrating error, raising claims of reversible error or other defect and
presenting argument and authority on each point made. (In re Sade C. (1996) 13 Cal.4th
952, 994; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) If an
appellant does not do so, the appeal should be dismissed. (In re Sade C., supra, 13
Cal.4th at p. 994.) In a juvenile dependency appeal such as this, the appellate court is not
required to review the entire record (In re Phoenix H., supra, 47 Cal.4th at p. 838), as
mother otherwise assumes.
This appeal is not mother’s opportunity to try or defend the case anew. Issues of
fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232
Cal.App.3d 849, 859-860.) On appeal, all conflicts must be resolved in favor of the
respondent and all legitimate inferences indulged in to uphold the decision, if possible.
(Id. at p. 859.) If alleged facts were not presented to the trial court, they are disregarded
by the court of appeal. (Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804, 808,
fn. 4, disapproved on another ground in Cronus Investments, Inc. v. Concierge Services
6
(2005) 35 Cal.4th 376, 393, fn. 8.) An appellate court may not reweigh or express an
independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Having failed to make an arguable showing of reversible error, mother is not
entitled to this court’s further review.
DISPOSITION
This appeal is dismissed.
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