Rocco M., In re

• Decision Date: 11 December 1991
• Docket Number: No. A050854,A050854
• Citation: 2 Cal.Rptr.2d 429,1 Cal.App.4th 814
• Court: California Court of Appeals Court of Appeals
• Parties: In re ROCCO M., a minor. CONTRA COSTA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CATHERINE P., Defendant and Appellant.

Page 429

2 Cal.Rptr.2d 429

1 Cal.App.4th 814

In re ROCCO M., a minor.

CONTRA COSTA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CATHERINE P., Defendant and Appellant.

No. A050854.

Court of Appeal, First District, Division 2, California.

Dec. 11, 1991.

As Amended Dec. 19, 1991.

[1 Cal.App.4th 816] Victor Westman, County Counsel, Martinez, for plaintiff and respondent Dept. of Social Services.

Mat Zwerling, San Francisco, Joyce Sutliff, Walnut Creek, for defendant and appellant Catherine Pereira.

KLINE, Presiding Justice.

This is an appeal from an order of the juvenile court adjudging Rocco M. a dependent child as described in Welfare and Institutions Code section 300, ¹ subdivision (b). Rocco's mother, Catherine Pereira, challenges the order on the grounds that (1) the court improperly took judicial notice of its file in previous proceedings concerning Rocco; and (2) the evidence was insufficient to support the finding of dependency. We affirm the order.

FACTS

In May 1990, the Department filed a petition seeking to have Rocco, then 11 years old, declared a dependent child. As later amended, the petition alleged that Rocco was a person described in section 300, subdivision (b), in that "1) The minor's mother has a history of alcohol and drug abuse problems which interfere with her ability to adequately parent, provide for and supervise the minor, i.e., [p] (a) On or about May 2, 1990, the minor was left in the care of a relative who was arrested on that date for possession of heroin and methamphetamines; [p] (b) On or about April 3, 1990, the minor was left in the care of a friend of mother's who kicked him in the stomach. [p] 2) The minor was a dependent of the Juvenile Court of Contra Costa County, placed out of parental care, for approximately three years, from December 1984 to February 1988, as a result of mother's neglect of his basic needs."

At the jurisdictional hearing on June 25, 1990, county counsel asked the court to judicially notice the file in the prior proceedings referred to in the petition. After a lengthy colloquy, described in greater detail below, the court granted this request.

Rocco then testified as follows: He was in foster care for a few years until about 1988. He and his mother then lived at his Uncle John's house, where things went fine. About a year before the hearing, they moved to an address in Martinez; since then, things had not gone too well. His mother "started drinking ... and she's doing more drugs and hanging around my Aunt more often and she started messing Some months before May 1990, Rocco found drugs in the bathroom. He thought it was cocaine; it consisted of white powder in a baggy and there was a mirror and straw next to it.

                up.  She wasn't taking care of me like she was supposed to."   He saw her drinking wine, vodka, and a liquor called Cisco.  He remembered in particular that she was drinking on April 8, which was the anniversary of the death of Rocco's father and the date on which she said she would stop drinking.  He has seen her drink two bottles of Thunderbird in a day
                

On two or three occasions Rocco's mother left him with a person named Steve Peoples. Peoples was generally nice but he got mad at Rocco one time when Rocco told him he didn't want him in his house. Rocco said he didn't want him to stay anymore and told him to leave. Peoples got mad, kicked Rocco in the ribs, and then locked him out of the house. Although Rocco was hurt by the kick, it was not hard enough to leave a bruise.

Around the beginning of May, Rocco's mother planned to enter the hospital and arranged for him to stay with Aunt Toni, Uncle John's ex-wife. Rocco had gone there frequently in the past and had stayed there overnight. He had seen drugs there. On this occasion, after spending one or two nights there, he came home from school to find Aunt Toni gone and the home in disarray. While searching for Aunt Toni he encountered his mother, and together they went to the jail, where his mother said Aunt Toni was being held on a drug charge. He ended up returning to his mother's house and spending that night with her, but the next night he could not find her and spent the night at the house of a friend. The next morning he went to Uncle John's house and was told that his mother was in the hospital.

Around the middle of May, Rocco moved back with his grandmother. When his mother left the hospital she didn't tell Rocco; he only found out after his grandmother checked her house and found his mother there.

Rocco testified that his mother had been "there for [him]" during the year they lived with Uncle John, but not during the year just past. During the earlier year, he said, she'd be there when he got home from school "and I'd get to do stuff with her and stuff like that before she started drinking and doing drugs again. She did really good just to get me back and then she blew it again." During the period leading up to the petition, Rocco's mother was usually not home when he arrived home from school. She would call him and say she was on her way home, but hours later she would not have arrived, and perhaps she would call again to say she was coming. She would come home later, but by then he would usually have gone to a friend's or back to his uncle's house. He said he wanted to go back to her house only "after she straightens up. After she quits drugs and alcohol."

The court sustained all the allegations of the petition and found Rocco to be "a person described by Section 300A." ² This was followed by a dispositional order directing out-of-home placement, which was in turn followed by this timely appeal.

JUDICIAL NOTICE

As previously noted, county counsel asked the court to judicially notice, in connection with the second count, "the findings that it has made in the previous dependency involving this child." The court asked whether there was any objection to its taking judicial notice of "the prior file." Counsel for appellant expressed reluctance to agree to "the wholesale review of everything in that report." After further discussion the court asked whether counsel had "any objection to me being allowed to review and take notice judicially of the, basically the court orders, the petition and I guess the court reports in the previous file We do not believe this ruling was erroneous, as Catherine contends. The court was explicitly authorized to take judicial notice of the file under Evidence Code section 452, subdivision (d)(1). ³ This did not necessarily mean every assertion found in the file could be accepted as proof of the matter asserted. (See 1 Witkin, Cal. Evidence (3d ed. 1986) Judicial Notice, § 102, pp. 88-89.) On the other hand, there is no blanket rule making all such statements inadmissible. (See In re Malinda S. (1990) 51 Cal.3d 368, 385, 272 Cal.Rptr. 787, 795 P.2d 1244 [social studies admissible and competent evidence on which to base jurisdictional finding].) Assuming portions of the file were inadmissible, it was incumbent upon Catherine to identify them and state a cognizable objection. Evidence Code section 353, subdivision (a), forbids setting aside a decision on grounds of the erroneous admission of evidence unless the record contains a timely objection or motion to strike or exclude "so stated as to make clear the specific ground of the objection or motion."

                to determine at some future point whether count 2 should be sustained?"   Counsel replied, "Yes, insofar as it proves count 2 or any facts which tend to support some other assertion besides count 2, I would object."   Counsel then alluded to the "inartful drafting" of the petition.  The court asked what was inartful about it;  counsel stated that he stood on his objection;  and the court said, "Your objection is overruled.  I'll take judicial notice of the entire file."   Counsel asked whether this meant "[e]verything contained within that file," and the court replied, "Yes."   However, the relevant minute entry states that the court took judicial notice "as requested by County Counsel."
                

With the possible exception of relevancy, no specific ground of objection was mentioned in the court below, and that ground was not asserted as to any specific portion of the file but apparently to the file as a whole. As a result, the record fails to establish that the court improperly considered anything from the earlier file, that it overruled a proper objection, or that any such error, if it occurred, resulted in a "miscarriage of justice." (Evid.Code, § 353, subd. (b).) Accordingly no reversible error appears on this point.

SUFFICIENCY OF EVIDENCE

Catherine contends that the evidence was insufficient to support a finding that Rocco came within the statutory definition of a dependent child. In addressing this contention, we are constrained by familiar principles: "In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547, 247 Cal.Rptr. 784.) " 'If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed....' " (In re Brittany H. (1988) 198 Cal.App.3d 533, 549, 243 Cal.Rptr. 763, quoting In re Gano (1958) 160 Cal.App.2d 700, 705, 325 P.2d 485 [Civ.Code § 232 proceeding].)

The question here is whether substantial evidence supports the finding that Rocco was, at the time of the hearing, a person described in section 300, subdivision (b). ⁴ The statutory definition consists of three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the...