Opinion
A151393
02-14-2018
In re ALEXANDRIA C., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. RICHARD C. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV160250)
Appellants Richard C. (Father) and W.H. (Mother) challenge the finding that their teenaged daughter Alexandria C. was subject to the jurisdiction of the juvenile court after she tried to commit suicide and testified that she felt unsafe in her home. The parents also argue that the case should be remanded for compliance with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq., ICWA) even though neither one has ever claimed Indian ancestry. We reject the parents' arguments and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Alexandria was diagnosed in September 2015 with major depressive disorder, post-traumatic stress disorder (PTSD), and anorexia nervosa. She first received in-patient care, and after she was discharged she continued to receive treatment, including psychotropic medication. She felt uncomfortable in her home because there was "a lot of conflicts going on" between her parents, which was "mainly verbal conflict." Alexandria had a safety plan, but she felt she received more support from staff at her school than from her parents. Mother, on the other hand, was concerned about the effect that Alexandria's medication was having on her eating habits.
Respondent Humboldt County Department of Health & Human Services (Department) received reports in October 2016 that Father was verballing abusing Mother and Alexandria, to the point where Alexandria sometimes had to leave the home for extended periods. Alexandria, who was nearly 17 years old, was reportedly parenting herself and her three younger sisters, and she worried that her siblings would suffer if she moved out.
Alexandria turned 18 during the pendency of this appeal. No party has suggested that the case is moot, possibly because the Department may seek to retain jurisdiction. (Welf. & Inst. Code, § 303, subd. (a) [court may retain jurisdiction over any person found to be a dependent child until child reaches 21].) We presume the case is not moot and proceed to the merits.
The situation escalated shortly after the first referral, when Alexandria attempted suicide by trying to hang herself with a belt in a school locker room. Medical staff reported that Father refused to consent to Alexandria's treatment, including providing her with psychotropic medication she had been taking for nearly a year. The Department placed Alexandria into protective custody because she was in imminent danger of harm, both because it would be dangerous to abruptly stop taking her psychotropic medication and because she was threatening to harm herself if she returned home.
Social workers who met with Alexandria learned that this was not the first time Alexandria had attempted suicide. Alexandria also reported that Father verbally abused her and that her parents often yelled at each other and threw things at each other. Alexandria ultimately was taken to a San Francisco hospital with a locked psychiatric facility for children. After her release, Alexandria was placed with a foster family.
The Department filed a dependency petition as to Alexandria in October 2016. As amended, the petition alleged that the parents had failed to provide for Alexandria's mental-health needs, had a history of domestic violence, had emotionally abused Alexandria to the point where she was suffering from severe depression, and also had subjected Alexandria to cruelty by belittling her after her suicide attempt. (Welf. & Inst. Code, § 300, subds. (b)(1) [failure to protect], (c) [serious emotional damage], (i) [cruelty].) The juvenile court ordered Alexandria detained.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Father sent text messages to Alexandria while she was hospitalized that upset her. He asked his daughter whether she was on her period when she attempted suicide and suggested that her behavior was caused by "luteal phase psychosis." Father also sent a series of emails to Department social workers and others questioning whether Alexandria truly tried to kill herself, accusing the county of being motivated by financial gain, and expressing concern that Alexandria was "manipul[ating]" the Department "into filing false accusations." Father repeatedly accused social workers of withholding information from him and of acting with an improper motive.
Father also complained online. He posted complaints about the dependency proceedings on the "rants and raves" section of Craigslist. He called Department investigators "some of the most evil, dishonest and destructive people with a badge" and said that the Department was "lucky one of their sneaky social workers hasn't been scalped yet." In a subsequent post, he questioned whether Alexandria's school wanted children in the custody of children's protective custody "because of the competition for scholarships."
In November 2016, the Department filed dependency petitions as to Alexandria's three younger sisters. They were not detained but remained in their parents' home.
Alexandria testified at the jurisdiction hearing that her mental health had improved since she began living with a foster family, and she was working on coping skills and ways to address her eating disorder. She acknowledged that she had never seen Father hitting family members or throwing things at them. But she testified that Father often yelled at her and Mother in what she (Alexandria) considered to be an "overly excessive or overly loud" tone. Father also would use "personal jabs at whoever he was angry at," such as insulting Mother or calling one of Alexandria's sisters a "bitch." Alexandria testified that Mother either ignored the yelling or yelled back, and she sometimes threw things at Father. She also had heard Mother threaten to kill herself two or three times. Alexandria further testified that she would not feel safe if she returned home, because she would not receive encouragement to stay safe.
Mother testified that there was no domestic violence between her and Father and that they had never hit each other. She acknowledged that they sometimes yelled at each other but testified that "I don't think ours [their arguments] were any more often occurring than any other family."
One of Alexandria's younger sisters testified that she sometimes heard Mother and Father yelling, but she never saw them hit each other. She also testified that Father prepared a declaration about her family life for her to sign. Although the sister provided information and made suggestions about the declaration, it was Father's idea to submit the declaration to the court. All three younger sisters apparently submitted identical declarations to the court.
The sisters' declarations do not appear in the record, possibly because they were filed in the sisters' separate proceedings, and the juvenile court ultimately did not sustain jurisdiction in their separate case.
Two social workers also testified at the jurisdiction hearing.
The juvenile court acknowledged that this was a difficult case. It pointed to evidence in the reports that Alexandria's therapist supported removal from the home and said it showed "what's going on in the home . . . affects Alexandria, and it affects her very adversely." The court sustained allegations that Alexandria was at a substantial risk of harm because her parents' history of domestic violence (§ 300, subd. (b)) and that the parents had emotionally abused Alexandria (§ 300, subd. (c)). The court struck, however, allegations that the parents had failed to provide for Alexandria's mental-health needs (§ 300, subd. (b)) and that Alexandria had suffered cruelty (§ 300, subd. (i)). The court also dismissed the three petitions as to Alexandria's younger sisters, finding that they were not affected in the same way as Alexandria and that there was not a sufficient showing that they were at a substantial risk of harm. At the request of Alexandria's counsel at the conclusion of the jurisdiction hearing, the juvenile court advised the parties that they were not to discuss the proceedings with the children.
Father continued to complain about the case online, both on Craigslist and elsewhere. Alexandria's attorney asked that Father be held in contempt for violating court orders by publicly sharing information about the proceedings, and the juvenile court issued an order to show cause. Father again posted confidential information about the proceedings. The juvenile court ultimately found Father to be in contempt but suspended sentence and stated it would dismiss the finding after six months if Father stopped posting information online. Father does not challenge the contempt finding.
According to the disposition report, Alexandria continued to thrive with her foster family. Mother visited with Alexandria and behaved appropriately, whereas Father did not fully participate in visitation.
At a combined hearing on disposition and contempt, Father testified that Alexandria should be returned home, where "[s]he would be amongst people who loved her, who cared for her, and who would be looking out for her." He did not think she would be victimized or risk emotional damage if she returned home. When asked whether he thought Alexandria was mature for her age, Father testified that he used to think so but no longer believed that to be the case "[b]ecause she has demonstrated, through her actions, that she has a lot of growing up to do and that she is—I think what we have learned from the past six months is that—and this is something I already knew, by the way, is that Alexandria is easily influenced. Alexandria is very passive and easily led. [¶] She's-you know, my sense was that she was looking for someone to tell her what to do. And I was waiting for her to grow up and to learn how to direct herself, and I was encouraging her to learn how to direct herself. But my sense is that someone came along and told her what to do and told her how to do it, and she did it. And so, I think she has a lot of growing up to do."
Father testified on cross-examination that he disagreed with Alexandria's diagnosis of having "suicidal inclinations." Based on his discussion with Alexandria's psychiatrist in 2015 and his own internet research, Father believed "there was no evidence yet that Alexandria wanted to kill herself. There was evidence of self-harm, but there's not evidence of suicidality." He further testified that he had "not seen any evidence that Alexandria tried to hurt herself. I have not seen any photographs. I have not seen the belt. [¶] The principal [at Alexandria's school] personally stated in writing that they had not found any belt. I have been asking for a belt for six months now. I have been being ridiculed."
The juvenile court adjudged Alexandria to be a dependent child and ordered that she remain placed outside the home because there were no other reasonable means to protect her from the substantial danger to her emotional health were she to be returned home. The court further ordered that the parents receive reunification services.
Mother and Father both appealed. The person who completed Father's form notice of appeal checked the box indicating Father appealed from Alexandria's "removal of custody from parent" (i.e., the disposition order) but did not check the box indicating the appeal sought a "review of section 300 jurisdictional findings" (i.e., the jurisdiction order). Mother's appeal form, by contrast, had both boxes checked. The Department argues that Father's failure to check the box indicating an appeal from the jurisdictional findings amounted to a waiver of his right to challenge those findings and renders both appeals procedurally defective, but the Department is mistaken. It is settled that the juvenile court's jurisdictional finding is interlocutory and not appealable, and any challenge to the finding must be raised in a timely appeal from the dispositional order, the order appealed from here. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393, fn. 8.) Given that Father appealed at his first opportunity and that the notice of appeal in a dependency proceeding must be liberally construed (Cal. Rules of Court, rule 8.405(a)(3); In re Madison W. (2006) 141 Cal.App.4th 1447, 1450), we construe Father's appeal as being from both the jurisdictional and dispositional orders and do not consider his failure to check a box on a form a waiver of his right to challenge the jurisdictional findings. This is especially true under these circumstances, where the appellate record contains all the information necessary for a complete review of the jurisdictional findings.
II.
DISCUSSION
A. Substantial Evidence Supports the Juvenile Court's Jurisdictional Findings.
Mother and Father challenge both of the juvenile court's jurisdictional findings. We review the findings for substantial evidence, drawing all reasonable inferences from the evidence to support the court's findings, reviewing the record in the light most favorable to the court's determinations, and noting that issues of fact and credibility are the province of the juvenile court. (In re R.T. (2017) 3 Cal.5th 622, 633.) We conclude that substantial evidence supports both findings.
1. Alexandria was at a substantial risk of harm.
The juvenile court took dependency jurisdiction of Alexandria under section 300, subdivision (b)(1), which required a finding that "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child." (See also In re R.T., supra, 3 Cal.5th at pp. 626-627.) Specifically, the court sustained an allegation that Mother and Father "have a history of domestic violence and have included [Alexandria] in their altercations. Alexandria has stated that the parents are verbally abusive, her 'parents yell at each other to the point of throwing things and my mother has threatened suicide.' When Alexandria has attempt[ed] to intervene, she is told that she is 'fucking dumb and to mind her own goddman [sic] business.' Such domestic violence places the child at substantial risk of suffering serious physical harm and/or death."
Mother acknowledges that "as a general proposition" domestic violence may provide the basis for a jurisdictional finding, but only when "there is evidence that the violence harmed the child or placed him or her at risk of harm." Mother apparently contends that because there was no evidence of violence in the home and no history of arrests for domestic violence, the juvenile court erred in sustaining the allegation. Father, too, places great weight on the lack of evidence that there was physical violence in the home. But the juvenile court emphasized that domestic violence was not limited to physical violence: "Domestic violence has many, many variants. And some of that domestic violence, if you talk to experts on domestic violence, as I have, involves controlling behavior. It involves belittling behavior. And one can certainly find an example of controlling behavior in preparing a declaration for court filing, and then having the child sign it. That's controlling behavior."
Father mocks the juvenile court's assessment as coming from a "court of psychology" and discounts the court's statements as being " 'more appropriate to an afternoon talk show than a court of law,' " quoting Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1751. But whereas the mother in Blanca P. had fully complied with her case plan and was criticized for the "vague" failure to "internalize" what she learned in therapy, and there were reasons to doubt the factual basis of the original referral to protective services (id. at pp. 1747, 1751), here there was substantial evidence that the conditions in Alexandria's home placed her at a substantial risk of harming herself. By focusing on whether Mother and Father were physically violent with one another or with Alexandria (and cases that feature that behavior), they sidestep the effects their relationship had on Alexandria. The juvenile court found that Alexandria viewed her home as "a toxic atmosphere" that had led her to be depressed and suicidal. In other words, even if there was absolutely no risk of Mother and Father physically harming Alexandria, there was still a risk of her harming herself because of their behavior.
Mother also stresses that the juvenile court dismissed dependency petitions as to Alexandria's three younger sisters, revealing "an internal inconsistency in the juvenile court's findings." But the juvenile court stressed that while Alexandria is "hypersensitive and she's reacting to what's going on in the home in a fashion that is a function of her own mental diagnosis" and that "what's going on in the home" affects Alexandria "very adversely," the three younger sisters were not similarly affected. Mother argues that the "reasoning that the children are situated differently based on Alexandria's own perspective of a toxic atmosphere is not supported by the facts or the law," but we disagree. Alexandria testified that she suffered mental-health issues, that yelling makes her feel anxious and causes her to "disassociate, which means I will feel disconnected from my body as if nothing is real," that suicidal ideation had decreased while in foster care, and that she would not feel safe if she returned home because "I wouldn't have encouragement to remain safe around myself." Her sister, by contrast, testified that she (the sister) felt safe in her home and that she believed her sisters were safe as well. Because the sisters responded differently to their home environment, the juvenile court was justified in treating their dependency petitions differently.
2. Alexandria suffered emotional damage.
The juvenile court also took dependency jurisdiction of Alexandria under section 300, subdivision (c), which requires a finding that "[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent . . . ." Stated differently, the Department had to prove three elements: "(1) the offending parental conduct; (2) causation; and (3) serious emotional harm or the risk thereof, as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior." (In re Alexander K. (1993) 14 Cal.App.4th 549, 557.)
Section 300, subdivision (c), also applies in situations where the minor does not have a parent capable of providing appropriate care, but the parent is not necessarily at fault. Father notes, and we agree, that the juvenile court did not make any finding that the parents were unable or unwilling to provide Alexandria with appropriate mental-health care.
Mother and Father apparently acknowledge that Alexandria suffers severe depression and suicidal tendencies (described euphemistically in their briefs as "difficulties" and "symptoms"), but they contend that there was insufficient evidence that any parental conduct caused Alexandria distress. Father argues that the case is similar to In re Alexander K., but we disagree. There, the juvenile court took jurisdiction under section 300, subdivision (c), over the seven-year-old son of divorced parents after the social services agency originally had alleged that the father had sexually abused the son. (Alexander K., supra, 14 Cal.App.4th at pp. 551-552, 556-557, 560.) The juvenile court concluded that the evidence did not establish that the father had sexually abused the boy, but it nonetheless found that the child often resisted visiting with his father and frequently displayed negative physical symptoms (such as nausea and vomiting) after visits. (Id. at pp. 556-557.) Division Four of this court reversed the jurisdictional order, finding that the minor resisted seeing his father but that "[t]he why was never established." (Id. at pp. 560-561.)
Here, Father concedes that Alexandria "attributed her emotional symptoms to her parents' verbal arguing and yelling and her father's emotional abuse by way of verbal put-downs"—i.e., the why was established, unlike in Alexander K. Father and Mother both quibble about some of the evidence to support the connection, but it is not our role to " 'reweigh or express an independent judgment on the evidence.' " (In re Shelley J. (1998) 68 Cal.App.4th 322, 329 [upholding jurisdiction under § 300, subd. (c)].) For example, the parents both argue that the discharge summary of Alexandria's stay in a San Francisco hospital reveals no strong connection between parental conduct and Alexandria's symptoms. The juvenile court acknowledged the discharge summary was vague in parts and went on to observe: "But everybody skips that next paragraph [of the discharge summary] where is says 'On 10-18 spoke to therapist who painted a clearer picture of a family dysfunction and absolutely supports removal from the home.' [¶] So I don't know why nobody read that to me. Should have. Therapist, of course, removal from the home. What it does is it kind of supports that view of what's going on in the home [and] how it affects Alexandria, and it affects her very adversely." (Italics added.) We have no reason to question the juvenile court's judgment on the evidence.
Alexander K. stressed that "the parental conduct branch of subdivision (c) seeks to protect against abusive behavior that results in severe emotional damage. We are not talking about run-of-the-mill flaws in our parenting styles—we are talking about abusive, neglectful and/or exploitive conduct toward a child which causes any of the serious symptoms identified in the statute. 'Abuse' means 'to ill-use or maltreat; to injure, wrong, or hurt.' [Citation.]" (Alexander K., supra, 14 Cal.App. 4th at p. 559.) Again, while there was scant evidence of physical violence in the home, we disagree with Father's suggestion that there was insufficient evidence of emotional abuse. As the juvenile court observed, "[C]hildren pick up on a lot of things, a lot of clues from their parents. Some of those things are verbal, some of those things are nonverbal. They react more strongly to certain clues that they get from their parents, and they have a deep, deep [e]ffect on them. It affects them sometimes for the rest of their life, the things that they remember that are insignificant to us. Just because it's just a bump or a bruise in daily life doesn't necessarily feel that way to a child. So to a child, sometimes those things that are said, those things that are done are deeply [e]ffecting and emotionally bruising, and as bad as a broken leg, if I were to look at it from a cruelty perspective." In other words, just because there was no physical violence in the home, it does not follow that the way Mother and Father spoke to her and behaved around her did not amount to emotional damage. Substantial evidence supports the juvenile court's jurisdictional findings.
3. The dispositional order must be affirmed.
Mother and Father argue that because insufficient evidence supports the jurisdictional findings, the dispositional order must be reversed as well. (In re Isabella F. (2014) 226 Cal.App.4th 128, 141.) Because we uphold the jurisdictional order and the parents offer no other reason to set aside the dispositional order, we affirm it.
B. Sufficient Evidence Supports the Juvenile Court's Finding That ICWA Does Not Apply.
1. Factual Background.
The original and amended dependency petitions for Alexandria had boxes checked stating, "The child may have Indian ancestry." The Department's detention report stated that "[t]he Indian Child Welfare Act may or may not apply. The mother and father will be provided an ICWA020 [form] to complete and file with the Court at the initial hearing." There was no discussion of ICWA at the detention hearing, though the orders entered after the hearing directed the parents to complete the ICWA-020 parental notification form and to file it with the juvenile court. No such form was ever filed.
The Department stated in the jurisdiction report that "[t]he Indian Child Welfare Act does not apply. An ICWA 020 was provided to the father at the initial hearing. On or about 10/12/2016 the mother indicated that the child has no known Indian ancestry. The Court will be updated with any new information regarding the Indian ancestry of the child." The same statement appeared in subsequent Department reports filed with the court.
English is Mother's second language. She testified at both the jurisdiction and disposition hearings through a Cantonese interpreter. Following the disposition hearing, the juvenile court found that ICWA did not apply.
2. Analysis.
Mother and Father both argue that the Department failed to comply with ICWA, mandating remand to the juvenile court, but they are mistaken.
"ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. [Citations.] The juvenile court and [Department] have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court 'knows or has reason to know that an Indian child is involved,' notice of the pending proceeding and the right to intervene must be sent to the tribe or the Bureau of Indian Affairs if the tribal affiliation is not known. [Citations.] Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error." (In re L.S. (2014) 230 Cal.App.4th 1183, 1197.)
Unlike nearly all of the cases upon which Mother and Father rely, neither parent has ever claimed Indian ancestry. (In re N.E. (2008) 160 Cal.App.4th 766, 770-771 [where father made no claim on appeal that he had Indian ancestry, no possible miscarriage of justice requiring reversal].) It is clear that Mother is of Chinese descent because her first language is Cantonese, her first and last names appear to be Chinese, and she told a social worker that her children had no known Indian ancestry. The only possible scenario in which Alexandria has Indian ancestry is if Mother, who was married to and living with Father, was mistaken and Alexandria actually had Indian ancestry through Father, and Father failed to correct the record despite being active in the proceedings below and being given an ICWA form at the initial hearing that he apparently never completed.
See In re Isaiah W. (2016) 1 Cal.5th 1, 6 [report filed with juvenile court indicated grandfather may have Blackfeet ancestry and great-great-grandmother may have belonged to Cherokee tribe]; In re L.S., supra, 230 Cal.App.4th at pp. 1196-1197 [parents claimed Cherokee heritage]; In re Z.N. (2009) 181 Cal.App.4th 282, 297 [mother reported possible Cherokee and Apache heritage]; In re J.T. (2007) 154 Cal.App.4th 986, 989 [mother, who was adopted, reported her biological parents had Sioux and Cherokee ancestry]; In re Nikki R. (2003) 106 Cal.App.4th 844, 847 [mother reported that father had Cherokee heritage]; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 252 [both parents claimed father had Cherokee heritage]; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1263 [social services agency learned mother's primary ethnicity was American Indian]; In re Desiree F. (2000) 83 Cal.App.4th 460, 464 [tribe filed motion to intervene in proceedings because mother was a member]; In re Michael G. (1998) 63 Cal.App.4th 700, 704 [father was registered Navajo Indian]; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1420 [mother claimed membership in Miwok Tribe]; In re Crystal K. (1990) 226 Cal.App.3d 655, 658 [tribe moved to intervene because mother was a member].
We conclude there is sufficient evidence to support the juvenile court's finding that ICWA does not apply. We find In re E.H. (2006) 141 Cal.App.4th 1330 instructive. There, the social services agency stated in the detention report that it was unknown whether ICWA applied, but then subsequent reports stated that it did not. (E.H., at pp. 1332-1333.) E.H. upheld the juvenile court's finding that ICWA did not apply, reasoning that "[f]rom the fact that the social worker included a definite statement in the subsequent reports, we can reasonably infer that the social worker made the requisite inquiry and obtained the information necessary to support the statement that the ICWA does not apply to [the child]." (E.H., at p. 1334; see also In re S.B. (2005) 130 Cal.App.4th 1148, 1160-1162 [from social worker's affirmative representation that ICWA did not apply, "fairly inferable that the social worker did make the necessary inquiry," and mother did not offer contrary evidence].) There is an even stronger inference of ICWA inquiry here, because the reports indicate that the Department provided Father with an ICWA form and that a social worker asked Mother about possible Indian ancestry, which she denied. This case is distinguishable from In re J.N. (2006) 138 Cal.App.4th 450, cited by Mother. There, there was no evidence that the social services department ever asked about the mother's possible Indian heritage. (Id. at p. 460-461.) Although the father completed a form regarding ICWA regarding his own ancestry, there was no indication he was asked about the ancestry of the mother, who was not living with father and with whom she apparently had had little contact in years. (Id. at pp. 454-460.)
We decline to reverse under the circumstances of this case. (See In re E.H., supra, 141 Cal.App.4th at p. 1335 ["[W]e are compelled to note that this is the most cynical and specious ICWA claim we have encountered."]; In re N.E., supra, 138 Cal.App.4th at p. 770 [" 'ICWA is not a "get out of jail free" card dealt to parents of non-Indian children, allowing them to avoid a[n] . . . order by withholding secret knowledge, keeping an extra ace up their sleeves.' "].)
III.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.