Michael H. v. Los Angeles County Department of Children & Family Services , 229 Cal. App. 4th 1366 ( 2014 )

Filed 9/22/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MICHAEL H., JR., et al., B249243
Persons Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. ATRJ-01)
MICHAEL H., SR.,
Plaintiff and Appellant,
v.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Defendant and Respondent.
APPEALS from orders of the Superior Court of Los Angeles County, Margaret
Henry, Judge. Appeals dismissed.
Michael H., Sr., in pro. per., for Plaintiff and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Kim Nemoy, Principal Deputy County Counsel, for Defendant and Respondent.
________________________
INTRODUCTION
The dependency statutes authorize designated social workers to petition the
juvenile court to declare a child a dependent of the court. These statutes also permit
private individuals, including a parent, to petition the social worker to file a dependency
petition. If, after conducting an investigation, the social worker declines to do so, the
concerned individual can seek review of that decision in the juvenile court. If the
juvenile court affirms the social worker’s decision, no dependency petition is filed. Is
that decision of the juvenile court an appealable order? We conclude it is not, and
therefore dismiss a father’s appeals from two orders affirming the decisions of social
workers not to commence dependency proceedings on behalf of his sons.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family
Michael H., Sr., (Michael H.) and his former wife, Kelly J.,1 are the parents of
Michael H., Jr., (Michael) and Quincy H. (Quincy). The parents have a history of
domestic violence and live separately. In June 2010 the family law court awarded the
parents joint legal and physical custody of the children and specified the times the
children could be with each parent.
B. The Prior Dependency Proceedings
In April 2010 the Los Angeles County Department of Children and Family
Services (Department) received a referral alleging that Kelly J. had physically abused
Michael.2 The Department received a similar referral in May 2010, which included an
1 Kelly J., also referred to as Kelly H. in the record, is not a party to this appeal.
2 The Department previously found that a November 2005 referral alleging general
neglect by Kelly J. and a November 2006 referral alleging physical abuse by Kelly J.
2
allegation that Kelly J. had used a belt with studs, a wooden spoon, and a paddle to
discipline her children. The Department offered Michael H. and Kelly J. voluntary
family maintenance services, but both parents refused. During the course of its
investigation, the Department confirmed that both parents disciplined Michael with
corporal punishment. At a team meeting the Department concluded that the children
would remain in the home of their parents under the existing family law order, directed
the parents not to use corporal punishment, and determined that the Department would
file a dependency petition. On August 27, 2010 the Department filed a petition pursuant
to Welfare and Institutions Code3 section 300, subdivisions (a), (b), and (j), on behalf of
Michael and Quincy, who then were seven and six years old, respectively, but did not
detain the children.
On September 1, 2010 the juvenile court determined that the Department had
made a prima facie showing that Michael and Quincy were persons described by
subdivisions (a), (b), and (j) of section 300. The juvenile court ruled that it would defer
to the family law court with respect to educational issues, visitation, and primary
placement, and that it intended to follow the visitation schedules ordered by the family
law court. The juvenile court therefore released the children to their parents in
accordance with the terms of the family law order.
On September 10, 2010 the family law court granted Kelly J. primary custody of
Michael and Quincy. The court granted Michael H. visitation and ordered him to pay
child support.
On October 21, 2010 the Department filed a first amended petition alleging that
Michael H. and Kelly J. had physically abused their sons by disciplining them
inappropriately and that Michael H. and Kelly J. “have a history of engaging in violent
altercations.” The Department further alleged that Michael H. and Kelly J. had an
were “unfounded.” In October 1999 the Department substantiated a referral alleging
physical abuse by Michael H. against a daughter from a previous relationship.
3 All undesignated statutory references are to the Welfare and Institutions Code.
3
unresolved history of volatile and serious conflicts and that Michael H. had
“demonstrated behaviors consistent with a disturbing and unstable obsession regarding”
Kelly J.4
On May 23, 2011 the juvenile court dismissed the first amended complaint
without prejudice prior to adjudication. Michael H. appealed. On November 22, 2011
this court dismissed Michael H.’s appeal pursuant to In re Phoenix H. (2009) 47 Cal. 4th
835 and In re Sade C. (1996) 13 Cal. 4th 952, after his court-appointed attorney had
advised that she could not identify any arguable issues and after Michael H. had filed a
supplemental brief that failed to identify any legally cognizable error in the juvenile
court’s order. (In re Michael H., Jr., et al., case No. B233955.)
On June 22, 2012 Michael H. filed a petition pursuant to section 388 asking the
juvenile court to grant him sole physical custody of Michael and Quincy, with Kelly J. to
have monitored visitation. The court denied the petition, finding that the requested
change was not in the best interests of the children, and Michael H. appealed. On
November 26, 2012 this court dismissed his appeal pursuant to In re Phoenix H., supra,
47 Cal. 4th 835 and In re Sade C., supra, 13 Cal. 4th 952. (In re Michael H., Jr., et al.,
case No. B243542.)
4 The Department further alleged that Michael H.’s obsession “includ[ed] . . .
authoring, publishing and distributing a book titled ‘Why husbands kill their wives and
boyfriends beat their girlfriends[.’] Further the book documents the father’s unstable and
disturbing behavior, such as the father standing over the mother while contemplating
killing her. Additionally, the father used unauthorized photographs of the mother
throughout the book and continues promoting the distribution of the book without the
consent of the mother and on or about 10/16/2010[,] the father was seen distributing the
book in public. On a prior occasion, the father choked the mother and struck the
mother’s face with the father’s hands, resulting in redness to the mother’s face. Such
disturbing, unstable and violent conduct by the father against the mother endangers the
children’s physical and emotional health and safety and places the children at risk of
physical and emotional harm, damage and danger.”
4
In December 2012 Michael H. submitted applications pursuant to section 329
asking the Department to commence dependency proceedings on behalf of his sons. The
record in this appeal does not disclose the resolution of those applications.
C. The Current Proceedings
In February 2013 Michael H. filed another application pursuant to section 329. In
his supporting declaration he described his concerns about Kelly J.’s parenting style,
including her use of corporal punishment and lack of continuous supervision.
Children’s Social Worker (CSW) Marquita Johnson decided not to commence
proceedings as requested by Michael H. She explained that, after considering Michael
H.’s second section 329 application, she “decided not to commence proceedings in
juvenile court on these allegations because: [¶] A thorough investigation was conducted
which included numerous interviews and a review of the case file. The Department
interviewed the children, mother, father, and a neighbor regarding the current allegations
and any other abuse or neglect issues. Although the family has a history in both family
law and juvenile dependency court, the results of the investigation are that there is an
insufficient basis to file a [section] 300 petition at this time.”
On March 21, 2013 the juvenile court received Michael H.’s application pursuant
to section 331 to review CSW Johnson’s decision not to file a section 300 petition. On
April 23, 2013 the trial court affirmed CSW Johnson’s decision. Michael H. timely
appealed from this order.
On May 22, 2013 Michael H. filed a third set of section 329 applications asking
the Department to commence dependency proceedings on behalf of Michael and Quincy.
These applications are not in the record on appeal.
On June 26, 2013 CSW Lisette Ruggiero decided not to commence dependency
proceedings in the juvenile court because “[t]here were no indications of abuse or neglect
found for the children in the home” and there were “[n]o marks, injuries or any other
signs to show children at risk with Mother.” CSW Ruggiero explained that she
“responded to [the] 3rd [section] 329 on this referral received by the [Department] on
5
5/22/13. CSW interviewed mother and children multiple times regarding allegations of
abuse and neglect in current referral. The Department did not find any evidence to
support the filing of [section] 300 and no issues of concern regarding the well being of
the children to warrant opening a Voluntary or Court case. This referral will be closed
Unfounded as to any abuse or neglect for the children in the home.”
On July 5, 2013 the juvenile court received Michael H.’s section 331 application
to review CSW Ruggiero’s decision not to commence proceedings. On July 30, 2013 the
court affirmed CSW Ruggiero’s decision. Michael H. timely appealed from the court’s
July 30, 2013 order.5 The notices of appeal from the April 23, 2013 and the July 30,
2013 orders have the same case number in this court, B249243.
DISCUSSION
“A proceeding in the juvenile court to declare a child to be a dependent child of
the court is commenced by the filing with the court, by the social worker, of a
petition . . . .” (§ 325; see § 215 [the term “social worker” includes “any social worker in
a county welfare department”]; In re Paul W. (2007) 151 Cal. App. 4th 37, 60 [“‘[a]
juvenile dependency petition can only be filed by a public agency’”].) A private
individual who is concerned about the well-being of a child may bring that concern to the
attention of a social worker by filing an application pursuant to section 329. (In re M.C.
(2011) 199 Cal. App. 4th 784, 791; see In re Lauren P. (1996) 44 Cal. App. 4th 763, 768
[“[a] parent or other person who believes the agency should file a petition can apply to
the agency, showing facts that would support dependency jurisdiction”].) Section 329
provides: “Whenever any person applies to the social worker to commence proceedings
5 On September 3, 2013 Michael H. filed a petition for a writ of mandate asking this
court to compel the juvenile court to rule on his July 5, 2013 application to review the
CSW’s decision not to commence dependency proceedings. (Michael H., Sr. v. Superior
Court, case No. B250981.) On September 20, 2013, after considering the petition and the
Department’s opposition, this court denied the petition.
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in the juvenile court, the application shall be in the form of an affidavit alleging that there
was or is within the county, or residing therein, a child within the provisions of Section
300, and setting forth facts in support thereof. The social worker shall immediately
investigate as he or she deems necessary to determine whether proceedings in the
juvenile court should be commenced. If the social worker does not take action under
Section 301 and does not file a petition in the juvenile court within three weeks after the
application, he or she shall endorse upon the affidavit of the applicant his or her decision
not to proceed further, including any recommendation made to the applicant, if one is
made, to consider commencing a probate guardianship for the child, and his or her
reasons therefor and shall immediately notify the applicant of the action taken or the
decision rendered by him or her under this section. The social worker shall retain the
affidavit and his or her endorsement thereon for a period of 30 days after notifying the
applicant.”6
If the social worker does not file a dependency petition on behalf of the child, the
private individual may seek review of the social worker’s decision in the juvenile court.
Section 331 provides: “When any person has applied to the social worker, pursuant to
Section 329, to commence juvenile court proceedings and the social worker fails to file a
petition within three weeks after the application, the person may, within one month after
making the application, apply to the juvenile court to review the decision of the social
worker, and the court may either affirm the decision of the social worker or order him or
her to commence juvenile court proceedings.” (See In re Kaylee H. (2012) 205
Cal. App. 4th 92, 102 [“[i]f the social worker has not filed a petition within three weeks,
the juvenile court has the authority under section 331 to independently review the social
worker’s decision not to file a section 300 petition”]; In re M.C., supra, 199 Cal. App. 4th
6 California Rules of Court, rule 5.520(c) provides: “Any person may apply to the
social worker . . . to commence proceedings. The application must be in the form of an
affidavit alleging facts showing the child is described in section[] 300 . . . . The social
worker . . . must proceed under section[] 329 . . . . The applicant may seek review of a
decision not to file a petition by proceeding under section 331 . . . .”
7
at p. 813 [section 331 “simply provides some additional measure of protection to ensure
an abused or neglected child does not slip through the cracks”].)7
“Under section 331 the juvenile court makes an independent assessment to
determine whether there is a prima facie showing the child comes within section 300 and
whether a dependency petition is required to protect the child.” (In re Kaylee H., supra,
205 Cal.App.4th at p. 104, fn. omitted.) “In determining whether there is the requisite
showing, the juvenile court must receive and consider any affidavit filed under section
329 and the social worker’s endorsement stating his or her reasons for declining to file a
petition. In addition, the juvenile court may consider evidence in the form of
investigative reports by the social worker, declarations and, if necessary, witness
testimony. [Citation.] After reviewing the affidavits and other evidence, the juvenile
court may either affirm the social worker’s decision not to commence juvenile court
proceedings or order the social worker to file a section 300 petition on behalf of the child.
[Citations.] In so doing, the juvenile court should give due consideration to the social
worker’s determination and may properly rely upon the Agency’s expertise for guidance.
[Citation.]” (Ibid.)
While the juvenile court’s decision to order a social worker to file a dependency
petition can be reviewed on appeal from the dispositional order (In re M.C., supra, 199
Cal.App.4th at p. 801), no court has yet to decide whether an order affirming the social
worker’s decision not to file a dependency petition is appealable. In In re M.C. the court
“express[ed] no opinion on whether an order affirming the social worker’s decision not to
initiate dependency proceedings is separately appealable.” (Id. at p. 802, fn. 12.)8
7 The juvenile court’s authority to direct a social worker to file a section 300
petition does not violate the separation of powers doctrine or article III, section 3, of the
California Constitution. (In re M.C., supra, 199 Cal.App.4th at pp. 813-815.)
8 Pursuant to Government Code section 68081, we gave the parties an opportunity
to submit supplemental briefs regarding the appealability of the juvenile court’s April 23,
2013 and July 30, 2013 orders affirming the decision of the social worker not to
commence dependency proceedings.
8
Because the right to appeal is strictly statutory, a judgment or order is not
appealable unless a statute expressly makes it appealable. (People v. Mena (2012) 54
Cal. 4th 146, 152; In re Q.N. (2012) 211 Cal. App. 4th 896, 904; In re T.C. (2012) 210
Cal. App. 4th 1430, 1433.) “Appeals in dependency proceedings are governed by section
395 . . . .” (In re M.C., supra, 199 Cal.App.4th at p. 801; see In re Aaron R. (2005) 130
Cal. App. 4th 697, 702.)9 Section 395 provides in pertinent part that “[a] judgment in a
proceeding under Section 300 may be appealed in the same manner as any final
judgment, and any subsequent order may be appealed as an order after judgment. . . .”
(§ 395, subd. (a)(1); see In re S.B. (2009) 46 Cal. 4th 529, 532 [“[t]he dispositional order
is the ‘judgment’ referred to in section 395”].)
“‘Juvenile dependency law does not abide by the normal prohibition against
interlocutory appeals . . . .’ [Citation.]” (In re T.G. (2010) 188 Cal. App. 4th 687, 692.)
“[T]he general rule in juvenile dependency cases is that all orders (except for an order
setting a section 366.26 hearing), starting chronologically with the dispositional order, are
appealable without limitation.” (In re Gabriel G. (2005) 134 Cal. App. 4th 1428, 1435;
see In re T.W. (2011) 197 Cal. App. 4th 723, 729 [“[t]he first appealable order in a
dependency case is the dispositional order”]; In re T.G., supra, at p. 692 [post-
dispositional dependency orders with the exception of order setting a section 366.26
9 Thus, Michael H.’s statement in his opening brief that his appeal is “authorized by
. . . Code of Civil Procedure, section 904.1, subdivision (a)(1),” is incorrect. (See In re
Daniel K. (1998) 61 Cal. App. 4th 661, 668 [“‘under the rule that a special statute dealing
expressly with a particular subject controls and takes priority over a general statute
[citations], section [395], and not [C]ode of Civil Procedure section [904.1], is the one
which must be looked to with respect to appeals under the Juvenile Court Law’”]; In re
Tomi C. (1990) 218 Cal. App. 3d 694, 698, fn. 3 [“[w]hile Code of Civil Procedure section
904.1 is the general appeal statute in civil cases, because section 395 is a specific statute
with regard to section 300 proceedings, it takes precedence over the general statute”].)
We note, however, that “section 395 ‘should be interpreted to be in harmony, to the
extent possible, with basic appellate principles” (In re Cassandra B. (2004) 125
Cal. App. 4th 199, 208), and that the “basic appellate principles codified in Code of Civil
Procedure sections 901 through 923 apply in juvenile dependency proceedings, at least to
the extent not inconsistent therewith” (In re Natasha A. (1996) 42 Cal. App. 4th 28, 39).
9
hearing are appealable].) Therefore “juvenile dependency proceedings are proceedings
of an ongoing nature and often result in multiple appealable orders.” (Sheila S. v.
Superior Court (2000) 84 Cal. App. 4th 872, 879.)
As for pre-dispositional orders, at least one such order is appealable: an order
dismissing a dependency petition after an adjudication of the petition on the merits. (See
In re Andrew A. (2010) 183 Cal. App. 4th 1518, 1525, fn. 4; In re Lauren P., supra, 44
Cal.App.4th at pp. 767-768.) Such a dismissal results from the juvenile court’s
determination that the Department has failed to prove the allegations of the petition and
the need for exercising juvenile court jurisdiction over the child or children named in the
petition. An order dismissing a dependency petition is appealable because, “[u]nlike a
jurisdiction order, which is followed by an adjudication of dependency and many
possible subsequent orders, nothing follows a dismissal order: It is the end of the matter,
and the child goes home.” (In re Sheila B. (1993) 19 Cal. App. 4th 187, 197, fn. omitted.)
Of course, where the juvenile court affirms a social worker’s decision not to
commence dependency proceedings in the first instance, “nothing follows” such an order
and it is, in a sense, the “end of the matter,” because the matter never began.
Nevertheless, neither section 331 nor section 395 expressly authorizes an appeal from
such an order. Where the Legislature intends an order that prevents an action or
proceeding from commencing to be appealable, the Legislature generally says so. For
example, Civil Code section 1714.10, subdivision (a), prohibits a party from suing an
attorney for civil conspiracy unless that party first obtains a court order permitting the
filing of such a claim. Civil Code section 1714.10, subdivision (d), makes appealable,
among other things, the trial court’s order made under subdivision (a). (See Hung v.
Wang (1992) 8 Cal. App. 4th 908, 935 [“the petition procedure created by [Civil Code]
section 1714.10 is a special proceeding, and the adjudication of such a petition is a final,
appealable order”]; accord, Castro v. Higaki (1994) 31 Cal. App. 4th 350, 356.) In
contrast, Code of Civil Procedure 425.13 requires leave of court to include a claim for
punitive damages in an action for damages arising out of the professional negligence of a
health care provider. Code of Civil Procedure section 425.13 contains no express
10
provision for an appeal, and orders granting or denying motions for permission to file a
claim for punitive damages under that statute are typically reviewed by a petition for writ
of mandate. (See, e.g., Pomona Valley Hospital Medical Center v. Superior Court (2013)
213 Cal. App. 4th 828, 831 [involving an order granting a motion to amend the complaint
to add a claim for punitive damages under Code of Civil Procedure section 415.13];
Cryolife, Inc. v. Superior Court (2003) 110 Cal. App. 4th 1145, 1152 [“[w]rit review is . . .
appropriate for an order granting or denying a motion to strike the punitive damages
allegations where the issue is the applicability of [Code of Civil Procedure] section
425.13”].)
We conclude that had the Legislature intended an order by the juvenile court
affirming a social worker’s decision not to commence dependency proceedings to be
appealable, the Legislature would have so stated, as it has in other circumstances.
Because the Legislature has not expressly made appealable a juvenile court’s order
affirming a social worker’s decision not to institute dependency proceedings, such an
order is not appealable. Therefore Michael H.’s appeals from the April 23, 2013 and
July 30, 2013 orders are dismissed.
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DISPOSITION
The appeals are dismissed.
SEGAL, J.*
We concur:
WOODS, Acting P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
12