Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., No. CK75956, Debra L. Losnick, Commissioner.
John Cahill, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel and Tracey F. Dodds, Principal County Counsel, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Father, Frank H., appeals from the judgment of the juvenile court entered after a contested jurisdictional hearing. He contends that the court should have advised father of his trial rights at the initial dependency hearing at which the court ordered the detention of the child from father’s custody, or the court should have obtained a personal waiver of the advisement. Father also contends that the trial court erred again in the later proceeding, by failing to advise him of his due process rights before making a jurisdictional finding. We conclude that under the facts of this case, the court was required to give the advisement or obtain a personal waiver at the initial hearing, but not at the time of the contested jurisdictional hearing. However, we conclude that any omission was harmless beyond a reasonable doubt.
BACKGROUND
The minor, Ariana H., came to the attention of the Department of Children and Family Services (Department or DCFS) when a social worker from the Los Angeles Jewish Family Services reported that mother and child had taken shelter there, and that mother had stated to the social worker that father had beaten her and had hit, pushed, and yelled at the child. After investigating, the Department recommended detaining the child with mother, and filed a petition to bring her within the jurisdiction of the juvenile court. As later amended, the petition alleged in counts a-1 and b-1:
“The [child’s] parents... have a history of engaging in violent physical altercations in the presence of the child. On or about 12/20/08, the father kicked the mother, multiple times, in the mother’s stomach, while the mother was pregnant. On or about 12/20/08, the father pushed and kicked the mother, causing pain to the mother’s head, back and right hand. The mother struck the father, while the mother held the child. The father sustained pain to the father’s arm and hand....”
The petition alleged in counts a-2 and b-2:
“On or about 12/20/08,... father... engaged in a violent physical altercation with the child’s paternal aunt [M.D.] in which the child’s father pushed and kicked the child’s paternal aunt, in the child’s presence....”
The detention hearing was held January 16, 2009. The juvenile court appointed separate counsel for the child, mother, and father. On behalf of their clients, the parents’ attorneys waived the reading of the petition and advisement of constitutional rights. The court ordered Ariana detained in mother’s home, and entered visitation and other orders. The court scheduled a contested adjudication trial for May 1, 2009.
In the detention report, the children’s social worker (CSW) reported that mother had moved to the United States two and one-half years ago from Iran, married father, and lived with father’s twin brother, Fred H., and sister-in-law, M.D., also from Iran. Mother told the CSW that father did not allow her to work or socialize outside the home, and that he did not allow her sufficient funds to purchase necessities. Mother reported that father had been abusive for years, but she did not speak up because she spoke no English, father threatened to take Ariana away, and she was ignorant of her rights in this country. Eighteen-month-old Ariana was too young to make a statement.
Father and his brother were also originally from Iran, but came to the United States in 1978, and are now United States citizens.
Mother and M.D. were very close, like sisters. The altercation on December 20, 2008, began when Fred beat M.D., and M.D. sought shelter in mother’s room. Fred followed her and began beating mother, and then father joined him and beat mother, as well. After mother ran into the street crying for help, a neighbor summoned the police. Mother, Ariana, M.D., and M.D.’s children went to the home of a friend, and two days later, went to the Jewish Family Services shelter. Mother obtained a restraining order against father.
The CSW interviewed father and his brother three weeks later. They both denied that they had ever physically abused their wives or children, claiming that the wives abused them. They stated that they had filed divorce petitions, but would allow the women to live in the house after they were divorced, so that they would not be separated from their children.
In the jurisdiction/disposition report of February 13, 2009, the CSW reported that she had again spoken to father on January 30 and February 4. Father denied the allegations of the petition and the accusations against him set forth in prior reports, and he stated that mother was, in fact, the perpetrator of domestic violence upon him. Father said that mother involved herself in an argument between Fred and M.D., during which M.D. was kicking and biting Fred, and father tried to take mother away from them, but mother began hitting and scratching father. When the CSW asked him whether he kicked and punched mother knowing she was pregnant, he denied knowing she was pregnant.
The CSW interviewed mother again on February 5. Mother stated the incident of December 20, 2008, occurred when she heard M.D.’s screaming and came to her aid. She saw Fred dragging M.D. by her hair, and when she intervened, Fred hit and kicked mother. Then both father and his brother attacked mother, pushing and punching her, and kicking her in the stomach. She said that father had also kicked her in the stomach approximately two or three weeks before that, when she did not know she was pregnant. She told the CSW that Ariana and the children of Fred and M.D. were present and saw both men hit and push both women.
Fred denied that he or father attacked his wife, and claimed that both women hit the men, causing them to have to defend themselves. He confirmed that the children were present in the home and may have seen the assault.
Father, filed a Welfare and Institutions Code section 388 petition March 13, 2009, seeking to change the order granting temporary custody to mother. Father alleged that mother was unreliable, unstable and unfit, that she used a dangerous drug, Seroquel, betrayed her marital vows and responsibilities, lied to the court and the police, and without his knowledge, aborted their child. The petition was supported with the declaration of his sister-in-law, M.D., which she had prepared for the purpose of dissolving the restraining order entered in her family law case. She stated that she was estranged from mother because of her lies and unjust accusations against father and her husband, Fred. M.D. stated that she, mother, and some friends conspired to have the brothers arrested and to obtain restraining orders, and that mother’s expressed purpose was to render the brothers homeless, with the hope that they would be killed in the streets. M.D. stated that she refused to be a part of mother’s “dangerous plot” any longer, because the children needed both parents, and she wished to reconcile with her husband. She claimed that father and Fred had always been good and kind to their wives and children, and that she and mother provoked them to create an excuse to divorce them.
Welfare and Institutions Code section 388 permits a parent to petition the court to modify or set aside any order of court previously entered, upon showing a change of circumstance or upon new evidence.
Father also submitted the declaration of M.D. with his section 388 petition. M.D. stated that since coming to the United States, mother was ungrateful and hard to please, that she nagged and humiliated father, provoked M.D. against Fred and father and insulted father’s parents. M.D. stated that despite knowing that her marriage was supposed to be permanent and that they intended to have children, mother had an abortion on January 8, 2009. M.D. claimed that under a plot devised by mother, mother and she provoked the two men to fight without cause “all the time,” until December 20, when mother called 911. M.D. claimed that mother created the situation in December so that she would become eligible for shelter and a welfare program. M.D. also claimed that father did not deprive mother of necessities, and that mother’s accusation that he withheld money for food and clothing was absolutely false.
In the DCFS report prepared for the hearing on father’s section 388 petition, the CSW reported that she had interviewed M.D., who admitted to her that she felt pressured to drop the restraining order and allow Fred and father unmonitored access to her children. M.D. had no support system other than her husband and brother-in-law, had few work skills, and could not speak, read, or write English. M.D. told the CSW that she wanted the court to terminate jurisdiction over her children so she could reconcile with Fred.
The CSW reported that father regularly said that he was “innocent” of domestic violence, but he admitted that he engaged in a physical altercation with mother, M.D., and Fred on December 20, in the presence of the children. Father and his brother visited the DCFS office daily, often unannounced, demanding that the report to the court be written in a manner that did not embarrass them. They sometimes stayed for hours asking the CSW to modify the report or change the visitation schedule, and arguing about other case-related issues, becoming hostile and enraged.
The CSW found that father’s controlling behavior and lack of understanding of domestic violence was apparently rooted in a strong cultural conflict. For example, father complained of mother that “without knowledge of her husband, she has been in contact with strangers....” The CSW found no evidence to substantiate father’s claim that mother used drugs. Mother denied that she was abusing drugs, or that she had done so in the past.
Father submitted more than 100 pages of documents and photographs to support his contentions that mother had falsely accused him of domestic violence in order to divorce him without endangering her immigration status or her right to welfare services, and that mother’s friends interfered with his visits. The documents included numerous e-mails and letters father sent in March and April 2009, to the Department, the juvenile and family courts, and his attorney, listing the “crimes” and criminal conspiracy of mother, her divorce attorney, mother’s friends, and father’s sister-in-law, M.D., and protesting his innocence of all allegations against him.
While denying that he was the aggressor, father admitted in some of the documents that there was a physical altercation in the presence of the children. For example, in one, father stated: “[M]y wife and my sister-in-law were the ones who were screaming, and the kids were crying. They were the ones who provoked the incident by name calling, bad mouthing, shouting and aggressively attacking and throwing things at me and my brother.... [¶]... [I]n the recent case,... they broke and smashed my brother’s eyeglasses.” In another, father stated: “Since [mother’s] return from Iran in October 16, 08, [sic] she has been more abusive toward our child Ariana and me; verbally, emotionally, even physically, provoking unnecessary arguments....”
The juvenile court granted a hearing on father’s section 388 petition and continued it to May 1, 2009, the date set for the contested adjudication and disposition.
At trial, none of the parties called witnesses to testify, and the matter was submitted on the argument of counsel and documents in the record. The court stated that it had read the father’s section 388 petition, as well as the declarations and other documents that father had submitted. The court had also read and considered the detention report and the social studies dated February 13, 2009, and March 25, 2009, with all attachments.
Father’s counsel argued that mother’s accusations should not be believed, because she had created the situation in order to leave father without endangering her immigration status. Counsel stated that father admitted that there was an argument on December 20, but she represented that it was strictly verbal and occurred while he was attempting to remove her from a dispute between M.D. and Fred.
The court found by a preponderance of the evidence that Ariana was a child described by section 300, subdivisions (a) and (b). The court denied the section 388 petition and ordered that Ariana remain in mother’s home under the Department’s supervision, with monitored visits and reunification services for father. Father filed a timely notice of appeal the same day.
DISCUSSION
Father makes a single assignment of error. He contends that the juvenile court erred by failing to advise him of his rights before permitting counsel to submit the matter on the documents in the court file.
California Rules of Court, rule 5.534(k) provides that in the initial proceeding arising under section 300, the court must advise the parent of his or her right to a trial on the issues raised by the petition, as well as the right to compel the attendance of witnesses, the right to confront and cross-examine all witnesses, and the privilege against self-incrimination. Rule 5.682(f) requires the court, before accepting an admission, plea of no contest, or submission, to make an express finding that the parent was advised of such rights.
All subsequent references to rules are to the California Rules of Court.
Father contends that the court’s acceptance of counsel’s submission of the issues on the documents in file, without taking testimony or other additional evidence, was a “submission,” as contemplated in rule 5.682(f). Father argues that this “submission” obligated the court to first inform father of his right to a trial, and then obtain “a voluntary, knowing and intelligent waiver of his trial rights,” as set forth in rules 5.534 and 5.682.
Father relies on In re Monique T. (1992) 2 Cal.App.4th 1372 (Monique), in which the mother appealed from a dispositional order, entered after the juvenile court had failed to obtain a personal waiver of her right to a contested jurisdictional hearing. In the detention hearing in that case, mother’s counsel waived the reading of the petition and advisement of rights; then, without scheduling a jurisdictional hearing, the court declared the child a dependent of the court and entered a disposition removing this child from mother’s custody. (Id. at pp. 1374-1375.)
The only similarity of this case to Monique, is that, in the initial proceeding, the detention hearing, counsel waived on father’s behalf the reading of the petition and the advisement of rights. However, unlike there, the court in this case scheduled a contested trial on the issue of jurisdiction, and the jurisdictional hearing went forward on May 1, 2009. Further, father did not submit the issue of jurisdiction solely on the social study reports, as the mother did in Monique. (See 2 Cal.App.4th at p. 1375.) Father was not asked to waive his right to a contested adjudication hearing, and he did not do so. Father was afforded a contested evidentiary hearing in which he submitted documentary evidence, including declarations made under penalty of perjury, and the argument of counsel.
Our review of the May 1 trial reveals the only colloquy that might be construed as a “submission.” The court asked father’s counsel, “Ms. Cottles, any additional documents or witnesses on behalf of the father?” Counsel answered, “No.” The court then stated: “Thank you.... All counsel having rested; correct?” Ms. Cottles replied, “Yes.” This colloquy fits the definition of “submission” commonly used in “judicial proceedings, i.e.: (a) to send or commit for consideration, study or decision;... [f]or instance, after the parties present evidence and argue their respective positions, they will ‘submit’ the matter, asking the court to rule without further argument. [Citation.]” (In re Richard K. (1994) 25 Cal.App.4th 580, 588.) That is not the definition of “submission” contemplated in rule 5.682(f). (See Richard K., at pp. 588-589 [decided under former rule 1449, the equivalent of rule 5.682].)
The submission contemplated by rule 5.682(f) means to agree to the court’s consideration of a particular social study report or recommendation by the Department, making a finding of jurisdiction the only foreseeable outcome. (See In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237 [under former rule 1449].) Thus, “submission” is tantamount to an admission or plea of no contest. (Ibid.) Because father was not deprived of a trial and did not enter a plea or submission, the court did not err in adjudicating jurisdiction without an advisement or waiver of the rights enumerated in rule 5.682.
Further, any error at the detention hearing in accepting counsel’s waiver of the advisement of the rights enumerated in rule 5.534(k), rather than giving the advisement or obtaining a personal waiver, was harmless. No judgment may be reversed unless the error has resulted in a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) Father contends that we should review the record for harmless error under the test of prejudice in Chapman v. California (1967) 386 U.S. 18, 24 (whether error is harmless beyond a reasonable doubt), rather than the Watson test. (See People v. Watson (1956) 46 Cal.2d 818, 836 [whether it is probable that a result more favorable to the appealing party would have been reached in the absence of the alleged error].) We need not decide which test is required, because the absence of advisement or personal waiver at the initial stage of the proceedings was harmless beyond a reasonable doubt. (See Monique, supra, 2 Cal.App.4th at pp. 1377-1378.)
Father was represented by counsel at that time and throughout the proceedings, and he was afforded the right to a trial, where he did, in fact, submit over 100 pages of evidence. Father suggests that without live testimony, he was denied the right to demonstrate that the allegations against him were untrue, and that he was the innocent parent. Dependency proceedings are not designed to prosecute or punish a parent, but to protect the child. (In re Malinda S. (1990) 51 Cal.3d 368, 384.) Regardless of who was the most blameworthy parent, father admitted, not only to the CSW, but also in declarations and letters that he placed into evidence, that there was a physical altercation in the presence of the children. He also admitted that other arguments with mother involved “physical provocation” (although he blamed mother and claimed his innocence). Violent confrontations between parents endanger children and justify juvenile court jurisdiction. (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Father fails to show just how additional testimony to prove that mother was at fault would have prevented the court from taking jurisdiction over the child.
For these reasons, we conclude beyond a reasonable doubt that any error in the court’s failure at the detention stage to obtain a personal waiver or advise father of the rights set forth in rule 5.534(k), was harmless.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.
All subsequent statutory references are to the Welfare and Institutions Code.