Filed 4/21/15; pub. order 5/12/15 (see end. of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                              DIVISION SEVEN


In re M.M., a Person Coming Under the                    B257860
Juvenile Court Law.
                                                         (Los Angeles County
                                                         Super. Ct. No. DK04990)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

A.W.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Philip Soto,
Judge. Reversed and remanded.
         Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
                                              _______________
       A.W. appeals from the juvenile court’s jurisdiction findings and disposition order
adjudging her four-year-old son, M.M., a dependent of the juvenile court, removing him
from A.W.’s care and custody and placing him with the Los Angeles County Department
of Children and Family Services (Department) for suitable placement. A.W. contends the
juvenile court erred in proceeding with the contested jurisdiction and disposition hearing
in her absence and there was, in any event, insufficient evidence M.M. was at substantial
risk of serious physical harm. The Department concedes A.W. had a right to be present
at the jurisdiction and disposition hearing but argues “any alleged errors” were harmless.
We reverse.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Dependency Petition and the Detention Report and Hearing
       In a petition filed May 13, 2014 pursuant to Welfare and Institutions Code
                                                                                     1
section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), the
Department alleged A.W. had taken M.M. with her when she went to solicit sex and then,
while incarcerated on charges of prostitution, failed to make an appropriate plan for his
                               2
ongoing care and supervision.
       The detention report stated A.W. (then 27 years old) had been arrested for
prostitution near the intersection of Lankershim Boulevard and Victory Boulevard in
North Hollywood, a high traffic prostitution area, in the early evening of May 7, 2014.
Undercover vice officers observed A.W., wearing a black hooded sweatshirt and purple
leggings, walking on Lankershim Boulevard and turning her head from side to side
monitoring the traffic. According to the officers, A.W. seemed to be paying special
attention to cars with one man inside—actions consistent with that of a prostitute. One of
the officers posed as a potential customer and made eye contact with A.W. He drove his

1
       Statutory references are to this code unless otherwise indicated.
2
      The child’s presumed father, Larry M., was apparently incarcerated at the time of
A.W.’s arrest and thereafter could not be located. He has not been a party to the
dependency proceedings.
                                             2
car to the parking lot of a fast food outlet a short distance away where he and A.W.
continued to make eye contact. At this point, A.W. came up to the passenger window of
the officer’s unmarked car, looked inside and then walked away. A.W. then went over to
a Lexus in the same parking lot and entered the car. The car drove away.
       Officers followed the Lexus. A.W. got out on another street, and the Lexus
proceeded to a different parking lot. The officers approached the vehicle and found
M.M. in the back seat. He was wearing two shirts (one long sleeve) but no jacket or
socks notwithstanding the inclement weather; M.M. had a bump on the side of his head.
His diaper was subsequently described as soiled and soaking wet.
       According to the police report, the driver of the Lexus, Keven L., confirmed to the
officers that A.W. was working as a prostitute and described himself as her supervisor.
Keven L. was arrested for human trafficking and child endangerment; A.W. was arrested
for loitering for the purpose of prostitution. The detention report identified Keven L. as
A.W.’s “boyfriend/pimp” and stated A.W. and M.M.’s father had “extensive criminal
history with several felony and misdemeanor convictions.” The attached information,
however, reflected A.W. had been arrested on misdemeanor charges only with several
misdemeanor convictions for prostitution.
       Police officers made an immediate response (emergency) referral to the
Department. A.W. called the child’s maternal grandmother to arrange for M.M. to stay
with her. However, M.M. was detained in shelter care in an emergency placement and
not immediately released to his maternal grandmother because a search of the automated
criminal history system (CLETS) indicated she had previously been arrested.
       A.W. was in custody and did not appear at the detention hearing. The court found
the Department had established a prima facie case for detaining M.M. and proving he was
a person described by section 300, subdivisions (b) and (g). Temporary custody and
placement was vested in the Department, which was authorized to release M.M. from
shelter care to any appropriate relative. The Department was ordered to prepare a county
jail removal order for A.W. so that she could appear at the next hearing.

                                             3
       2. A.W.’s Arraignment
       A.W. was present, in custody, at the arraignment hearing on May 20, 2014; and
counsel was appointed to represent her at that time. Following arraignment, the matter
was continued for a contested jurisdiction and disposition hearing. The minute order
states that A.W. was ordered back for the next hearing but does not reflect that the court
                                                                       3
directed the Department to prepare the necessary jail removal order.
       M.M. remained detained in shelter care. The court ordered the Department to
evaluate the maternal grandmother for possible placement and reiterated that the
Department had discretion to release M.M. to an appropriate relative. The maternal
grandmother’s home was approved as of May 29, 2014, and M.M. had been placed with
her by the time of the jurisdiction/disposition hearing.
       3. The Jurisdiction/Disposition Report and Hearing
       The Department’s report for the jurisdiction and disposition hearing on June 4,
2014 repeated the detailed description of the incident leading to A.W.’s arrest and
M.M.’s detention, including Keven L.’s statements to police officers, and summarized an
                                                  4
interview with A.W, who remained in custody. According to A.W., she had gone to a
strip club on Lankershim Boulevard and Victory Boulevard on the evening of May 7,
2014 to try out for a job. The manager of the club was not there, so she met her
boyfriend Keven L. in the parking lot of the fast food restaurant next door. Keven L. was
babysitting M.M. while A.W. had gone to the club. A.W. told the Department’s social
worker she and Keven L. had been in a relationship for approximately one year and he
was helping her raise M.M. Although A.W. admitted she had a history of prostitution,
she denied she was attempting to solicit sex on the evening she was arrested and denied


3
        Although the minute order for the May 20, 2014 arraignment hearing expressly
stated that A.W. “appears in custody,” the Department in its respondent’s brief curiously
asserts that it appears A.W. “was not incarcerated at the time of the arraignment.”
4
       A.W. was interviewed on May 28, 2014 at the Century Regional Detention
Facility, a Los Angeles County facility located in Lynwood.
                                              4
Keven L. was her pimp. She insisted the vice officers must have lied when they reported
that Keven L. had said she was a prostitute whom he supervised.
      M.M.’s maternal grandmother reported the child was doing well in her care. The
maternal grandmother expressed shock that A.W. had been involved in prostitution and
said she had never had any concerns about A.W.’s parenting abilities or M.M.’s care
while in A.W.’s custody. The Department’s report noted that A.W. “has family support.”
      The jurisdiction/disposition report stated that A.W. and M.M. had been living in a
motel in Encino. The attached health examination report indicated M.M. was small for
his age but had no significant medical problems. He did have a “small faint bruise” on
his right forehead. The Department recommended that M.M. be referred to an approved
regional center provider for a mental health and/or developmental assessment.
      The Department recommended the petition be sustained as written, M.M. declared
a dependent of the juvenile court and removed from the custody of his parents, and A.W.
receive family reunification services including a parenting program and individual
counseling to address case issues with weekly monitored visitation.
      At the outset of the jurisdiction/disposition hearing on June 4, 2014 counsel for
A.W. stated, “The mother is not present. I’ve been led to believe she’s incarcerated in
San Bernardino.” After the court tersely responded, “Noted,” counsel continued, “I think
we need to bring her in.” The court replied, “They will not provide her county to county.
                                                                  5
They never do. An in-and-out [order] isn’t going to be effective.” Counsel then



5
       An addendum report filed by the Department on May 13, 2014, the same day as
the dependency petition, attached a page containing Los Angeles County Sheriff’s
Department inmate booking information for A.W, which apparently had been located on
the Internet. That sheet indicated A.W. was housed at the Century Regional Detention
Facility in Lynwood but was subject to a hold from the San Bernardino County Sheriff’s
Department. However, nothing in any of the Department’s reports reflects A.W. had
actually been transferred to San Bernardino, and the juvenile court made no effort to
determine whether she was still in the custody of the Los Angeles County Sheriff’s
Department.
                                            5
objected to proceeding with the hearing without A.W. being present. The court overruled
the objection.
       The court received into evidence the detention report, the jurisdiction/disposition
report, a due diligence report on the absent presumed father of M.M. and the documents
approving the maternal grandmother’s home as a placement for M.M. No other evidence
was presented. Counsel for A.W. argued the description of A.W.’s conduct from the
police report did not establish she had solicited an act of prostitution or engaged in any
other form of criminal activity: “There is no evidence that Mother solicited anybody.
There is no evidence that anyone solicited her. There is no evidence that money ever
exchanged hands. There’s no evidence that any indecent act took place.” As for
Keven L.’s purported admission that he was A.W.’s pimp, counsel urged it was hearsay
upon hearsay and, beyond that, inherently incredible. Why, he asked, would Keven L.
admit that to the police officers?
       Counsel also emphasized that M.M. was not with A.W. when she was allegedly
soliciting for prostitution. He was with A.W.’s boyfriend in the car; and, counsel urged,
there was no evidence he was in any danger at any time during the incident. Finally,
A.W. had a plan to have M.M.’s maternal grandmother pick up M.M. once she was
arrested and taken to the police station—that is, the very person with whom M.M. was
then placed under the supervision of the Department. Thus, there was no evidence for the
second allegation that A.W. had created a substantial risk of physical harm by failing to
provide for M.M. once she was incarcerated.
       Based on the circumstantial evidence of her involvement in prostitution while
M.M. was left alone with her pimp, the court found by a preponderance of the evidence
that all the allegations in the petition were true (including the allegation that A.W. had
failed to make an appropriate plan for M.M.), declared M.M. a dependent child of the
court and removed him from the custody of A.W. under a general suitable placement




                                              6
order but with release to the maternal grandmother approved. The court ordered
                                                                                          6
reunification services for A.W. consistent with the Department’s recommendations.
                                       DISCUSSION
       1. The Juvenile Court Violated A.W.’s Statutory Right To Be Present at the
          Contested Jurisdiction/Disposition Hearing
       Penal Code section 2625, subdivision (d), prohibits adjudicating a child a
dependent of the juvenile court pursuant to section 300, subdivision (b), without the
physical presence of an incarcerated parent unless the parent has knowingly waived his or
her right to appear: “Upon receipt by the court of a statement from the prisoner or his or
her attorney indicating the prisoner’s desire to be present during the court’s proceedings,
the court shall issue an order for the temporary removal of the prisoner from the
institution, and for the prisoner’s production before the court. . . . [N]o petition to
adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a),
(b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code may be
adjudicated without the physical presence of the prisoner or the prisoner’s attorney,
unless the court has before it a knowing waiver of the right of physical presence signed
by the prisoner or an affidavit signed by the warden, superintendent, or other person in
charge of the institution, or his or her designated representative stating that the prisoner
has, by express statement or action, indicated an intent not to appear at the proceeding.”
       The Supreme Court in In re Jesusa V. (2004) 32 Cal.4th 588, 622, which
considered that portion of Penal Code section 2625, subdivision (d), relating to a
proceeding to terminate parental rights under section 366.26, confirmed that the reference
in the statute to the “physical presence of ‘the prisoner or the prisoner’s attorney’” did
not mean only the presence of the incarcerated parent’s lawyer was required. Analyzing

6
        A.W. was allowed full day, unmonitored visitation with M.M. at the six-month
review hearing in December 2014, including overnight visits if the initial unmonitored
visits went well. In addition, the Department was granted discretion to bring the matter
back to the court before the scheduled 12-month review hearing to request a home-of-
parent order.
                                               7
the legislative history of the provision, the Supreme Court held the word “or” in this
phrase is properly given a “conjunctive meaning”: “These materials reveal a strong
legislative interest in enabling the prisoner to attend the hearing, an interest that would be
undermined by interpreting the statute to make the attorney’s presence sufficient in every
               7
case.” (Ibid.)
       A.W.’s right under Penal Code section 2625, subdivision (d), to be present at the
contested jurisdiction/disposition hearing was invoked by her counsel at the outset of the
proceedings, as the Department concedes. Yet the juvenile court elected to conduct the
hearing in A.W.’s absence over her counsel’s objection. That decision is particularly
troublesome because nothing suggested the court needed to proceed immediately to
adjudicate the petition and craft a disposition order: M.M. had been placed with his
maternal grandmother prior to the scheduled hearing date, so a continuance would not
have been destabilizing or otherwise contrary to his interests (cf. § 352 [authorizing
continuance of dependency hearings, provided “no continuance shall be granted that is
contrary to the interest of the minor”]); the court’s concern about the ineffectiveness of an
order requiring A.W.’s presence because she was housed in another county was based on
incomplete information about A.W.’s status, which the court made no effort to verify or
supplement, and was insufficient in any event to justify disregard of Penal Code section
2625’s clear mandate; and neither the social worker nor any other individual was present
to testify at the hearing, so there was no issue of witness inconvenience. Simply put, the
court erred.
       2. Proceeding To Adjudicate M.M. a Dependent of the Court Without A.W. Being
          Present Was Not Harmless Error
       The Supreme Court in In re Jesusa V., supra, 32 Cal.4th 588 held violation of
Penal Code section 2625, subdivision (d), was not jurisdictional and, therefore, not


7
       The Jesusa V. Court held an incarcerated parent has no due process right,
independent of Penal Code section 2625, to attend a dependency hearing at which his or
her lawyer was present. (In re Jesusa V., supra, 32 Cal.4th at pp. 625-626.)
                                              8
reversible per se. The Court explained, “[W]e have regularly applied a harmless-error
analysis when a defendant has been involuntarily absent from a criminal trial. [Citation.]
We do not believe the Legislature intended a different result in the analogous
circumstance here, when a prisoner is involuntarily absent from a dependency
proceeding.” (Jesusa V., at p. 625.) The Court concluded the familiar Watson harmless
error standard should be applied (ibid.)—that is, reversal is not required unless “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; see
generally In re Celine R. (2003) 31 Cal.4th 45, 59-60 [harmless error doctrine applies in
dependency cases; dependency court order should not be set aside unless it is reasonably
probable the result would have been more favorable to the appealing party but for the
error].)
       Acknowledging (apparently) the juvenile court conducted the jurisdiction/
disposition hearing in violation of A.W.’s right to be present, the Department contends
her absence had no prejudicial effect. The Department explains A.W. insisted she was
not soliciting for prostitution; Keven L. was her boyfriend and not also her pimp; the
police officers lied when they said Keven L. had admitted A.W. was working as a
prostitute and he was her pimp; and, even if she had been soliciting, M.M. was being
cared for by Keven L. and had not been placed at risk. That theory of the case, the
Department continues, was documented in the Department’s reports and argued to the
juvenile court by her counsel. A.W. does not suggest she could have presented any
                                                          8
additional evidence had she been present at the hearing; accordingly, the Department


8
       Keven L. had apparently disappeared by the time of the jurisdiction/disposition
hearing and was not available to testify, as A.W.’s counsel explained to the juvenile
court. The Department notes, however, although A.W. questioned the veracity of the
police report, her counsel did not call the reporting officer to testify or cross-examine the
social workers who had prepared the detention and jurisdiction/disposition reports.
       Counsel’s tactical decisions do not affect our conclusion as to the potential
significance of A.W.’s live testimony. It was certainly reasonable to conclude the police
                                             9
reasons, because the court’s jurisdiction findings and disposition order were amply
supported by the written record, the court’s failure to ensure she was transported from jail
to the hearing did not prejudice her.
       The Department’s position ignores the vital role that live testimony plays in a
court’s assessment of credibility and its evaluation of conflicting evidence: “Oral
testimony of witnesses given in the presence of the trier of fact is valued for its probative
worth on the issues of credibility, because such testimony affords the trier of fact an
opportunity to observe the demeanor of witnesses. [Citation.] A witness’s demeanor is
‘“part of the evidence”’ and is ‘of considerable legal consequence.’” (Elkins v. Superior
Court (2007) 41 Cal.4th 1337, 1358.) Without hearing directly from A.W. and assessing
her demeanor, the juvenile court rejected her account of the events of May 7, 2014—she
was interviewing for a job while her boyfriend babysat her child—and found she was, in
fact, soliciting for prostitution and, while doing so, had left her young son in the care of
her pimp, circumstances that created a substantial risk of physical harm to M.M. because,
as the Department phrases it in its respondent’s brief, “of the oftentimes dangerous and
violent events that take place in circumstances such as these.”
       We, like the juvenile court, have only read the Department’s account of A.W.’s
story. We have not seen or heard her testify. But if her oral testimony were believed,
there is no doubt the result of the challenged proceedings would have been more
favorable to her. On this record, we cannot conclude the juvenile court’s error in
proceeding in violation of A.W.’s right to be present at the hearing was harmless.
       We recognize the general rule in dependency cases that the juvenile court’s
exercise of jurisdiction over a child will be upheld if substantial evidence supports any
one of the statutory bases for jurisdiction enumerated in the petition. (See, e.g.,



officer would not have admitted he fabricated evidence—A.W.’s theory of the case.
Thus, there was nothing to be gained by calling him as a witness. And the social workers
simply relied on the police report for their description of the events surrounding A.W.’s
arrest.
                                             10
In re Ashley B. (2011) 202 Cal.App.4th 968, 979 [“[a]s long as there is one unassailable
jurisdictional finding, it is immaterial that another might be inappropriate”]; In re I.A.
(2011) 201 Cal.App.4th 1484, 1492; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Under this principle a remand would be unnecessary if the court’s finding under
section 300, subdivision (g), were supported by substantial evidence since Penal Code
section 2625, subdivision (d), does not apply to an allegation that the parent has been
                                                           9
incarcerated and cannot arrange for the care of the child. However, the record is devoid
of any such evidence. To the contrary, A.W. contacted M.M.’s maternal grandmother
shortly after being arrested to arrange for M.M. to stay with her; the Department
approved the maternal grandmother’s home prior to the jurisdiction/disposition hearing;
and M.M. was actually living with his maternal grandmother at the time of the hearing.
Unquestionably A.W.’s plan for M.M. was appropriate since both the juvenile court and
the Department agreed M.M. should continue to reside with his maternal grandmother
while A.W. received family reunification services. It was error for the juvenile court to
sustain the count g-1 allegation in the Department’s petition.




9
       The petition, which alleged that A.W. had been incarcerated and “failed to make
an appropriate plan for the child’s ongoing care and supervision,” rather than that she was
unable to do so, misstated somewhat the proper elements for exercising jurisdiction under
section 300, subdivision (g). As the Court of Appeal explained in In re Aaron S. (1991)
228 Cal.App.3d 202, 208, “[S]ection 300, subdivision (g) applies when, at the time of the
hearing, a parent has been incarcerated and does not know how to make, or is physically
or mentally incapable of making, preparations or plans for the care of his or her child.”
(See In re Monica C. (1995) 31 Cal.App.4th 296, 305 [“section 300, subdivision (g),
requires only that an incarcerated parent arrange adequately for the care of the child
during the period of his or her incarceration”]; see generally In re Summer H. (2006)
139 Cal.App.4th 1315, 1334.)
                                             11
                                     DISPOSITION
       The jurisdiction findings and disposition order are reversed. The matter is
remanded for a new hearing at which A.W. has the opportunity to be present and testify
and for further proceedings not inconsistent with this opinion.




                                                        PERLUSS, P. J.


       We concur:




              ZELON, J.




              IWASAKI, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                            12
Filed 5/12/15
                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN


In re M.M., a Person Coming Under the               B257860
Juvenile Court Law.
                                                    (Los Angeles County
                                                    Super. Ct. No. DK04990)

LOS ANGELES COUNTY                                     ORDER CERTIFYING OPINION
DEPARTMENT OF CHILDREN AND                             FOR PUBLICATION
FAMILY SERVICES,                                       (NO CHANGE IN JUDGMENT)

        Plaintiff and Respondent,

        v.

A.W.,

        Defendant and Appellant.



        THE COURT:
        The opinion in this case filed April 21, 2015 was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), appellant’s request pursuant to California Rules of Court, rule
8.1120(a) for publication is granted.
        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
      ORDERED that the words “Not to be Published in the Official Reports” appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.



___________________________________________________________________
       PERLUSS, P. J.          ZELON, J.           IWASAKI, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                               2
