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In re Joshua J. (1995)
In this case the superior court ruled that Welf and Inst Code § 300 petitions cannot be re- litigated under the collateral estoppel/res judiciata doctrine. Appellant cited that the trial court had erred in not allowing him to re-litigate the basis of dependency, the original WIC § 300 petition and there was insufficient evidence for a basis of dependency and removal. Appellant contested the finding of the WIC § 300 (j) petition on the half sibling stating that there was not sufficient evidence proffered to sustain the finding that the half sibling was at risk of abuse because the other sibling had been abused. The appellate court disagreed stating that because a true finding had made on the original § 300 petition on the appellant's own son who then was adjudged a minor described under Welf and Inst Code § 300 earlier, the dependency of the half sibling was precluded from litigation under the collateral estoppel aspect of the res judicata doctrine. "The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration." (7 Witkin, [39 Cal. App. 4th 993] Cal. Procedure (3d ed. 1985) Under the collateral estoppel doctrine, the court can prevent a party from relitigating an issue, issue preclusion. The court finds that the appellant’s appeal without merit. To uphold its finding court turns to the elements to assert collateral estoppel. First, the court will consider whether there was a previous litigation in which identical issues were raised to the present one. Secondly the issue must have been fully litigated. Finally, a final judgement must have been entered on the issue in question. In addition, the party who subject to the estoppel must have been the same. The appellate court finds that all the criteria were met in this case. The previous dependency of the minor satisfied the first criteria. The juvenile court had fully litigated and entered a final judgement on the Welf and Inst Code § 300 petition. The court had weighed all of the evidence and made a true finding. The issue of whether Justin was abused, the j count, had been the subject and decided in the previous dependency proceeding and is identical to this issue to be re litigated. The minor child and the appellant were both parties or privity to a party of the previous case. In this case the court considered the half son a close relative to the party and therefore the proceedings applied to him as much as the appellant's own child. As a result, the appellate court found that collateral estoppel was properly asserted in this case. Appellant incorrectly cites another case (in re. Benjamin D) as estoppel was incorrectly applied due to requirements that the privity of parties be the same and the issues not being identical because the two proceedings had different purposes. Appellant also asserted that the court’s refusal to re litigate the issue contravened the meaning and the language of Welf and Inst Code § 300: subdivision (j): “The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the minor.” The appellate court disagrees. The appellate court states that the language referred to above is intended for the second prong of the j count which would be whether a minor is at risk of abuse or neglect not whether a sibling was abused which is the first prong. The other issue was that the appellant indicated a desire to re-litigate the issue of whether the minor was abused and not the circumstances surrounding the abuse ... of the sibling. The appellant had failed to make an offer of proof suggesting that the abuse had occurred under a certain scenario. The record indicated that appellant wished to dispute the forensic findings as misinterpretations. The appellate court found that re litigation of the forensic findings would be tantamount to relitigating the WIC § 300 finding of abuse or neglect and therefore be properly blocked under the principal of res judicata. The appellate court adds that even should the instant court in 1987 proceeding had made a mistake regarding the circumstances of the abuse, it would have been a harmless error given the serious nature of the minor’s injuries. The appellate court sustained the trial court’s finding of dependency. In re Joshua J., 39 Cal. App. 4th 984 Court of Appeal of California, Fourth Appellate District, Division One September 29, 1995, Decided In re JOSHUA J., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JAMES J. et al., Objectors and Appellants. Prior History: Superior Court of San Diego County, No. J509578, Yuri Hofmann, Referee. Disposition: The judgment is affirmed. Case Summary Procedural Posture Appellant father and mother challenged the decision of the Superior Court of San Diego County (California), which, pursuant to Cal. Welf. & Inst. Code § 300(j), declared their son a dependent of the San Diego County Juvenile Court and removed him from appellants' custody. Overview Respondent San Diego County Department of Social Services filed a dependency petition, alleging that appellant father and mother's newborn child required juvenile court protection under Cal. Welf. & Inst. Code § 300(j), which allowed the juvenile court to assert jurisdiction over a minor where the minor's sibling has been abused or neglected and there was a substantial risk that the minor would be abused or neglected. The newborn's half brother had been physically and sexually abused by appellant father, and had been removed from appellant father's home in a prior dependency proceeding. The trial court found in favor of respondent and removed the newborn from appellants' custody. Appellant father contended that the trial court violated his due process by denying him the right to relitigate the basis of the prior dependency proceeding. The court affirmed, holding that any attempt to relitigate the prior proceeding was barred by collateral estoppel. Outcome The court affirmed the trial court's judgment that removed appellant father and mother's newborn child from their custody because appellant father's claim that he had a right to relitigate the basis of a prior dependency proceeding in which he was found to have abused the newborn's sibling was barred by the doctrine of collateral estoppel.
0 Comments
Preserving the record for appeals in dependency court When making an objection or appeal, it is very important to make a timely appeal. When appealing, counsel needs to be mindful of the timelines that exist for appealing. Different issues have different deadlines to raise an objection or appeal. There are two issues to be addressed; timely appeals/objections and specific objections. The first, specific objections, pose an issue for forfeiture of issue later on. Trial counsel may err on the side of being too cautious or vigorous in their defense out of fear of ineffective assistance of counsel, IAC. Counsel may raise an objection such as “Your honor I object out an abundance of caution. For the record mother and father objects to the case.” To begin if counsel states that they withdraw their contest, but then follows with a general objection, they nullify their statement. The objection that counsel raises is insufficient as it does not specify on what grounds counsel is objecting. Even something along the lines of “Please note mothers objection to termination of reunification services’ is not sufficient. On what grounds is she objecting? Reasonable services? Due process? Even though counsel may be raising an objection to the proceedings, it is important to remember that these objections are targeted toward the superior court and not the real parties in interest; county counsel nor minor’s counsel. When counsel fails to raise an a timely objection at the trial court level, they forfeit the right to claim error as grounds for reversal on appeal. The second half of the equation is making that the record is complete to ensure that an appeal can be sustained factually and not risk forfeiture. When counsel fails have a factual record, they risk the appellate court dismissing their appeal. 80% of writs are not preserved in the record. To preserve the record, it is encouraged that trial counsel reminds the trial court of any errors in the record. When an issue goes up before an appellate court counsel is asking the appellate court to exercise its discretion. Since the court of appeal relies on the existing record and discovery is not conducted, it is crucial to preserve the record as best as possible. Referring to issues that were brought up by trial counsel in passing but never formally entered into the record will not pass. There are two exceptions to when failure to raise a timely objection can be forgiven. When the matter is a UCCJEA issue or ICWA, the court will usually forgive any failure to enter into the record a timely objection. Since these issues deal with constitutional rights and due process, the appellate court will overlook any defects in timely waivers. However, when the appellate court is dealing with non fundamental issues, other issues are subject to forfeiture. Issues such as failing to state that a specific law is not being followed needs to raised in a timely manner. Opening the code book and reading what the department was supposed to do during the trial court level can be key to preserving the record. Let the record show exactly how the department deviated from the code. Do not simply enter that the department failed to perform its duties. Another issue is whether the court terminated FR too early. If the court did terminate too early do not wait until appellate court to raise the issue for the first time. Object and state how the department was negligent in its actions and how these specific omissions failed to satisfy what is required in the statutes or case law. Again refer to the codes to point out specifics. If a status review report doesn’t have different changes or lacks certain requirements make a formal note of it in the record. If there are multiple continuances, ensure that the client is receiving and engaging in services. Do not wait until appeal to raise the reasonable services objection. If counsel fails to raise their argument in a timely manner county counsel and minor’s counsel will state that it is the first time they have heard of this and why did parent’s counsel not raise this issue before when it first became an issue. Another issue to note is that in appellate court the parent has the burden of proof to make a offer of proof. Court of appeals tends to weigh in favour of the superior court so it is appellate counsel’s job to build a case for the client using the existing record. With a well preserved record, counsel should strongly argue that the evidences fails to assert the specific facts. Using the evidence to show that services did not happen when they should have happened within the timeframe. If the record was properly preserved, then counsel should be able to cite the record accurately and show that the trial court made errors that severely prejudiced their client. Remember that appellate review is a higher standard of review than at the trial court level. Even though it may seem unfair or extra work, forfeiture is a large issue that can be the death of a client's case. In the cases of in re Amy M, in re Jennifer J, and in re Daniela G, the appellate court reviewed whether due process rights were violated when the parents were barred from calling their children to testify when they were available and not deemed incompetent to testify. In the Amy M court, the two children were detained under Welf and Inst Code § 300. The parents were facing (d) and (j) charges. The department asked for a 730 evaluation. The department detained the son out of concern that he would would be abused too. The daughter and the son underwent psychological evaluations. Based on the contents of the evaluations, the court filed an amended 300 petition citing that the children fell under (b) (c) (d) and (j). The J count was for the son as the department felt that he was at risk of abuse from the father. At the jurisdiction hearing, court assumed jurisdiction and moved to disposition. It is at this point that the parents filed their appeals. The parents filed their appeal on the grounds that the court had incorrectly assumed the children’s ability to testify and refused the parents to call their son to testify even though he was competent and available to testify. The majority of the appellate appeal rests on the testimony or lack thereof the son, Michael. When asked to put Michael on the stand, minor’s counsel said that given nature of allegations testimony was not necessary. Minor’s counsel cited that Michael would suffer undue stress from having to testify. This reasoning doesn’t make sense as the daughter suffered the abuse but was placed on the stand and she had a breakdown. In regards to whether the son should testify, the court had a 730 evaluator evaluate him. The parents asked for their own evaluator, but the court denied their request. The 730 evaluator found that Michael initially appeared relaxed and normal for his age. They performed some tests and found that Michael was at severe risk of mental illness and his responses that he proffered showed high levels of insecurity and depression. The clinician believed that minor suffered from a thought disorder. The minor did not report any desire to visit his family nor having a significant bond. The expert opined that minor should be excluded from testifying as he would suffer emotional trauma from having to testify on the stand. The clinician also opined that there would be detriment should the minor be returned to his parents. The parent’s own expert informally entered a judgment that minor suffered from depression and the above named symptoms as a result of being separated from his family. The family’s expert believed that the 730 evaluator’s report had many validity issues. The court included that statement as a grounds for the (c) count. On appeal the court examined to see if there were alternatives to Michael’s testimony or whether his testimony was significant. The court examined for the following factors: There was no available substitute for his live testimony. There were no other testimony records from previous hearings. There was no report with his oral statements. The parent’s examiner was not allowed to examine him in person. Minor declarant was not found incompetent nor was there a request to make him unavailable pursuant to Evidence Code 240. The court applied the harmless error test and found that failure to call Michael as a witness was not a harmless error and based on his proposed testimony, the court could have found that the c count was inappropriate thus making jurisdiction inappropriate judgment. Based on these inconsistencies, the appellate court found that the risk of detriment did not overwhelm the benefit of having the child on the stand. The issues that Michael would be testifying about were of material importance and thus the appellate court believed that excluding his testimony was fundamentally unfair. The court addresses parental rights in this hearing stating that the fundamental rights of parents cannot be abrogated with impunity. The goal of dependency court is to protect children and not prosecute parents. The focus should be on the care and custody of the child. The parents’ rights are civil rights that are protected by the due process clause. The appellate court sustained the order for Amy M and reversed and remanded the issue for Michael as to a new jurisdictional finding. In re Jennifer J After the Amy M case, a year later a new case is published about Jennifer J. Jennifer was detained due to sex abuse. The court in this case found that the trial court does hold discretion to exclude testimony in order to prevent trauma from testifying. It also extends the ruling to all other hearings. In this case, the parents were facing d charges for sexual abuse. In regards to adoption, the court reported that Jennifer J did not know if she wish to pursue adoption or stay with her parents. The parents set the matter for contest. Expert witness was called and testified about visitation and the recommendations for a .26 hearing. She had strong opinions about th father. Dad requested a bonding study, but the court denied his request. At the trial, the expert believed that it would be detrimental for Jennifer to resume her visits with her father because she was receiving mixed messages about reunification. The expert opined that the bond between her and her father was negative. The parents requested that Jennifer testify as she would say that she would say that she was bonded to parents and wanted visitation. Minor’s counsel raised the question of whether minor would be traumatized by having to testify. Counsel opined that minor was too young to understand the complexities of adoption and bonding and that asking would emotionally harm her. The mother proffered stipulated testimony in lieu of in person testimony. The statement contained details about the bond with the mother and father, did not want adoption, and minor’s desire for continued contact. It also included that minor did not wish to be adopted. County counsel and minor’s counsel did not agree. The trial court sustained minor’ s objection to having Jennifer testify, but did accept the stipulation into the record. The court took into consideration the bond that minor had with her parents. The court addressed that: If she were here she would say she wanted to be with you. She is bonded to both of you and father. Neither counsel objected. This court statement encompassed the entire stipulation entered by mom. However, the court did terminate parental rights as the parents had not met the two prong exception under 366.26 (c)(1)(a). Both parents files a timely appeal after but only the mother raised the issue of barring the minor from testifying. The trial court contends that it may refuse attendance and testimony of the child subject of litigation even if the testimony was relevant and the child is competent and available to testify. In the case of Jennifer J, her testimony was relevant and she was not found incompetent or unavailable. Pursuant to § § 366.26 (h) (1), the court does have to consider wishes of minor at hearing especially if the wishes are relevant to the (c) (1) (b) (1) exceptions for TPR. The court notes that the minor was not found to be incompetent nor unavailable under § 240. The question raised was did the trial the court have authority to exclude Jennifer J from testifying. The mother raises the findings of the Amy M court stating that there was no basis for refusal. The appellate court found that the court does hold discretion based on the overriding objective of dependency which is to preserve the child’s best interest. In Jennifer J, the court applies a three prong rule. The court mandates that the trial court has the power to exclude testimony where: (1) the child’s wishes can be directly presented without testimony, (2) the child’s testimony would not materially affect the disputed facts, (3) and it is shown that the child would suffer emotional harm if forced. The court also noted that this test to exclude should be made only after a careful weighing of whether exclusion outweighs the benefit of having the child testify. What sets the Jennifer J court apart from Amy M court is that Jennifer’s testimony would not have resolved a disputed issue unlike the Amy M case. They were accepted as established by the court. Even if she had testified, the court at TPR was taking into account the bond nor the wishes of the minor. Regardless of the purported bond there was insufficient evidence to sustain that the parent’s had a meaningful and beneficial influence in Jennifer’s case. The court noted that this case centers around balancing the benefit of admitting a child’s testimony over the consequences of emotional trauma from testifying. The court found that requiring Jennifer to testify would have caused stress and the possible benefit would not warrant the injury it would case. Any testimony she could proffer was of little use in rendering the final judgement about TPR. In the case of Daniela G, court extends the rational from Jennifer J to the adjudication and disposition hearing. The Jennifer J and Daniela G court provide an alternative mechanism to limit testimony at the disposition and jurisdiction hearing. There was dicta in the Daniela G court that states that the Jennifer J logic is not limited to a .26 hearing. It can be applied to any hearing. In this case, the stepfather was in bed with Daniela. The mother caught them and took the step daughter to police and to have a forensic interview. Daniela also was in a forensic interview but only admit that she massaged the father. Physical exams showed no indication of sex abuse. Prior investigation by the department revealed dad had been accused of child porn. The department filed a 300 petition with b and d charges. The department believed that Daniela was at risk of abuse since her step sister was abused. It also filed a petition for the step daughter. The department recommends sustaining the the 300 petition for Daniela and withdrew the petition with step daughter. The department did appoint counsel for the step daughter regardless. At this point several questions are raised about the petition. The first was why was the petition withdrawn. There should have been a 355 motion for the step daughter her non party statements were coming in. Subpoena the interviews and the social worker’s title XX. Father subpoena Daniela to testify. Minor’s counsel filed a motion to quash his subpoena. Minor’s counsel cites evidence code 240 citing Jennifer J. This minor’s counsel did not want her to testify because she was found unavailable under evidence code § 240 and Jennifer J. Daniela’s counsel also filed a motion to admit her statements and interview under the child hearsay exception in re Cindy L. Dad’s counsel also subpoena step daughter. Step child’s counsel argues that she suffers PTSD and was vulnerable according to her CANS assessment. At the trial, the two social workers would be dangerous for Daniela to testify due to her age and the extreme nature of the sex allegations. This appears to be a ridiculous reasoning as to the fact that the allegations are serious and without proper testimony, there is risk of prejudice. They also opined that it would detrimental for her to have to see the father and testify. However, a point is no one raised the point of in chambers testimony under § 350 (b). At adjudication hearing court admits all of the reports, the CANS assessment, and the letter from person who did CANS assessment. The court ruled that neither minor would be required to testify and sustained d petition. The father appeals. On appeal the father raised two objections. The first was that the court made a mistake in not allowing Daniela to testify in chambers. He contends that there was insufficient evidence of trauma if they were forced to testify. He asserts that this was a violate of his due process right to confront and cross examine witnesses. Since this case is an appellate court, the standard of review is abuse of discretion of the lower court. The appellate court dismisses the in chambers argument as the father did not raise that objection in a timely manner, forfeiture of issue/waives argument. The Daniela G court discusses evidence code 240. The trial court did not find the children unavailable under § 240, they found them unavailable under Jennifer J standards. There are two basis of excluding a child’s testimony; § 350 (b) and Jennifer J. The issue before the appellate court was did the trial court apply the Jennifer J test correctly. The appellate court again cites the overriding objective of dependency which is the child’s best interest. Jennifer J’s logic is not limited to .26 hearings. In this case the parents retain some rights but not complete rights. Because the child’s best interests and rights take precedence, due process is limited. Dad appeals citing that the Amy M findings apply not the Jennifer J findings. The court returns that this case is more similar to Jennifer J. In this case the children’s’ testimony would not have clarified any material fact in dispute and that there would be harm to the child if they had to testify. In Daniela G there is a two part test whereas Jennifer J is a three part test. Jennifer J dealt with a .26 hearing and a child’s wishes. In the case of Daniela G, there is only 2 parts. The first is is the info to be given on cross material to disputed fact and the second will the child suffer harm. If the matter is a .26 hearing, the Jennifer J three part test applies, if the hearing is another such as a jurisdiction or dispositional hearing, then Daniela G two part test applies. The court analyzed the facts of the case and found that the Jennifer J requirement of whether the testimony was material to a disputed fact was met in Daniela G. The court also found that both of these girls would be psychologically harmed if forced to testify. The appellate court did address the step daughter’s testimony stating that it would not discuss about how this test would be applied to non-party. The justified this reasoning because dad didn’t ask the court to differentiate the step daughter different from Daniela G. The court treated them the same legally. The court did admit that in the future it was unsure of whether these two tests would apply to a child not party to the case. In regards to the matter of whether the testimony was material to a disputed fact, it found that Daniela’s testimony would not have helped resolve any thing. She never admitted abuse. The father disputed the massage nor denied sex abuse. The father should have made sure he entered a denial with specificity to the allegations. In regards to the stepdaughter’s testimony was material to a disputed fact, the father contends that the testimony was important as it involved molestation. The court stated that it would not have helped with the trial as he entered a general denial but failed to give an alternative excuse. The father failed to testify nor challenge the details of the allegation. The court also stated that the credibility of step daughter was not an issue. The father failed to cross examine the step daughter and thus gave no basis for impeachment. He had no trial strategy. Credibility at this case was not a tenable issue as the step daughter gave detailed evidence. The appellate court took the evidence as a whole and found detriment. The appellate court found that was enough to prevent the step daughter from testifying. The court did note that it does not have to be an expert witnesses to testify on risk of detriment to the child. In this case the social worker, forensic interview, and testimony from the CANS assessment were used in rendering a judgement. These cases are interesting as it leaves a lot of leeway when it comes to applying § 240. These cases show that the minor’s counsel may be able to invoke it whenever they see it fit. It would be up to the parent’s counsel to disprove their claim. Based on the case law from Daniela G and Jennifer J, the focus should be on contesting that the information to be proffered is material to a disputed fact. Parent’s counsel could prepare their trial strategy accordingly. Why do I want to call this witness? How am I going to impeach a witness? Is there motive to lie? It is important to remind clients to deny with specificity as a general denial is not enough. The case law has shown that the best interest of the child outweighs a general denial. The parent needs to make it clear that they had no role in any abuse if they wish to override § 240. In re Amy M Procedural Posture Appellant parents challenged the order of the Superior Court of Santa Clara County (California), which adjudicated their son and daughter as dependents of the juvenile court. Appellant contested juvenile court jurisdiction, claiming that the evidence was insufficient and that their due process rights were violated. Overview Following a claim of molestation by appellant parents' daughter, she and her brother were placed in protective custody. Respondent county probation officer filed a petition to have both children declared dependents of the juvenile court, which was granted after a hearing by the trial court. In affirming the order as to the daughter, the court found that lower court properly found that reasonable efforts were taken to prevent or eliminate the need for out-of-home custody, and to determine whether there were services available that would prevent the need for further detention. The court found no abuse of discretion in the trial court's ruling that the daughter was competent to testify. Though the trial court denied appellant access to their daughter before the hearing, they had ample opportunity to review her testimony and cross-examine her, and thus, the court found no due process violation. The court found that there was sufficient evidence to sustain the petition with regard to the daughter. In reversing the order with regard to the son, the court ruled that appellant's due process rights were violated by the trial court refusal to allow them to call the son as a witness. Outcome The court affirmed the order finding appellant parents' daughter to be a dependent of the juvenile court, but reversed the order finding appellant's son to be a dependent of the juvenile court. The trial court's refusal to allow appellant to call the son as a witness, or to interview him before trial, and the lack of testimony-like evidence from him, violated due process and it could not be presumed that this violation was harmless error. In re Daniela G Overview HOLDINGS: [1]-A juvenile court could properly excuse a father's child and stepchild from testifying at the combined jurisdictional and dispositional hearing involving the child regardless of whether they were unavailable under Evid. Code, § 240; [2]-The principle that a juvenile court can, consistent with a parent's due process rights, refuse to compel the testimony of a child who is otherwise available when the possible benefit derivable from the testimony would not warrant the psychological injury it would cause applies to jurisdictional and dispositional hearings; [3]-The court properly balanced the father's due process rights against the resulting trauma to the two children to excuse them from testifying, as their testimony would not have materially affected its resolution of the issues, and there was sufficient evidence they would have been psychologically harmed by testifying. Outcome Order affirmed. In re Jennifer J Procedural Posture Appellants, mother and father, challenged an order of the Superior Court of San Diego County (California), which terminated their parental rights under Cal. Welf. & Inst. Code § 366.26. Overview The children of appellants, mother and father, were removed from the care of appellant mother, termination was recommended by respondent San Diego County Department of Social Services, and the trial court ordered termination under Cal. Welf. & Inst. Code § 366.26. On appeal, the court affirmed, finding that the trial court did not abuse its discretion in denying appellant father's request for a bonding study because there was other evidence on the matter. The court found that it was within the trial court's discretion to exclude the testimony of one child, despite appellant mother's request that she testify, in order to avoid psychological harm to the child. The court found that the issues would not have been materially affected by the child's testimony because the trial court had taken notice of the fact that the child was bonded to her parents and would not have wanted the adoption. The court found that the trial court did not err in failing to find that termination was not in the best interest of the children and that, under § 366.26, the trial court was not required to make a generalized finding that termination of parental rights was in the best interests of the minors. Outcome The court affirmed the lower court's termination of the parental rights of appellants, mother and father. The court found that the trial court did not err in denying appellant mother's request for testimony from the oldest child because it was within the trial court's discretion to exclude the testimony to avoid psychological harm to the child; failure to find that termination was not in the best interest of the minors was not error. |
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Juvenile Dependency and
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