Opinion
F042968.
11-5-2003
In re NATHANIEL R. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. DEANNE R., Defendant and Appellant.
Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant. Michael H. Krausnick, County Counsel, and Carrie Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Appellant, Deanne R., appeals the juvenile courts order finding her children, Nathaniel R. and Phillip R., came within the provisions of Welfare and Institutions Code, section 300, and removing them from her custody. On appeal she claims the court erred by failing to advise her of her rights at the jurisdictional hearing and that the evidence did not support the juvenile courts findings. We agree that the juvenile court erred by not informing appellant of her rights and then seeking express waivers of those rights. We will therefore reverse the jurisdictional and dispositional orders.
All further references are to the Welfare and Institutions Code unless otherwise indicated.
In light of this disposition, we need not reach appellants remaining issues.
FACTS
On March 17, 2003, a Modesto police officer came into contact with appellant in conjunction with an investigation regarding forged checks. The officer determined that appellant had passed two forged checks to a pizza parlor and subsequently arrested appellant for forgery and possession of fictitious checks. At the time of her arrest, appellant was in a motel room with her two young children and a number of other adults. After her arrest, appellant stated that she had no relatives in the area and she had only known the people in the room for a very short time. Therefore, the officer contacted Child Protective Services to take custody of the children.
The Stanislaus County Community Services Agency (hereinafter Agency) subsequently filed a petition pursuant to section 300, subdivisions (b) and (g), alleging that Nathaniel and Phillip were at risk of harm due to appellants substance abuse problem and homelessness. In addition, the petition alleged that appellant was currently incarcerated and the whereabouts of the childrens fathers was unknown; thus, appellant was incapable of providing adequate care for her children.
At the jurisdictional hearing, the juvenile court asked appellants counsel if she would waive reading of the petition and "further advi[se] to rights?" Counsel responded "Yes, Your Honor." The court then stated that it had read and considered the jurisdictional/dispositional report filed by the social worker and asked counsel for the Agency whether she intended to present any further evidence. Counsel responded that she only intended to call one witness regarding the notice requirements of the Indian Child Welfare Act and that she did not intend to call any witnesses with regard to the jurisdictional or dispositional issues.
After testimony was taken from a witness regarding notice sent to certain Indian tribes, appellants counsel was asked if she wished to cross-examine the witness or present any affirmative evidence on behalf of appellant. She responded in the negative. The trial court then went on to find that the allegations in the petition were true, and sustained the petition. When asked whether she had any evidence to present regarding the dispositional issues, appellants counsel responded only that appellant had provided the name of a relative who may be willing to care for the children while appellant remained in custody and that information had been passed on to the social worker. Both counsel for the Agency and for appellant forwent presenting any argument to the juvenile court, and the court ultimately declared the children dependants of the court, removed them from appellants custody, and implemented a case plan.
DISCUSSION
The juvenile court erred in failing to obtain a waiver of appellants rights.
Appellant argues that the trial court erred in failing to obtain a waiver of her rights when it accepted her submission regarding the issue of jurisdiction based on the social workers report. We agree that the failure to notify appellant of her rights in association with a jurisdictional hearing constituted prejudicial error; therefore, we will reverse the jurisdictional and dispositional orders.
If a parent denies the allegations of the juvenile dependency petition, the parent has a right to a contested hearing to determine whether the child comes within the jurisdiction of the juvenile court. (§ 353; Cal. Rules of Court, rule 1450(a).) In addition to a right to a contested hearing, a parent also has a privilege against self-incrimination, the right to confront and cross-examination witnesses, and the right to use the process of the court to compel attendance of witnesses. (§§ 311, 341; Rules 1412(j), 1449(b); In re Monique T. (1992) 2 Cal.App.4th 1372, 1375; see In re Malinda S. (1990) 51 Cal.3d 368, 382-383 & fn. 16.) In lieu of a contested hearing, the parent may admit the allegations of the petition, plead no contest to them, or submit the jurisdictional determination to the court based on the information provided in the social workers report and waive further hearing. (Rule 1449(e).) Pursuant to the Rules, if a parent chooses to admit, plead no contest or submit on the report, the court is required to advise the parent of and find the parent knowingly, intelligently and voluntarily waived the following rights: (1) the right to a hearing; (2) the right to assert the privilege against self-incrimination; (3) the right to confront and cross-examine witnesses; and (4) the right to compel attendance of witnesses. (Rule 1449(b) & (e); In re Patricia T. (2001) 91 Cal.App.4th 400, 404.)
Hereinafter Rule or Rules.
As the court in In re Monique T. held, the juvenile court is required to explain and obtain personal waivers of these rights before accepting a submission at the jurisdictional hearing. (In re Monique T., supra, 2 Cal.App.4th at pp. 1376-1377.) Failure to do so constitutes error. (Ibid.) In the present case, appellants counsel entered a submission at the jurisdictional hearing. However, the court failed to advise appellant of her rights when receiving the submission. This constituted error.
Respondent acknowledges the fact that appellant was never apprised of or waived her rights in conjunction with the jurisdictional hearing. However, respondent claims that the error, if any, was harmless. According to respondent, appellant had a contested jurisdictional hearing at which she declined to present any evidence or cross-examine any witnesses. We disagree with respondents characterization of the record.
At the original time for the jurisdictional hearing, the court called the case and indicated that the jurisdictional hearing was "non-contested." The matter was continued for a day because appellant sought a Marsden hearing on an issue unrelated to this appeal. The following day, the court heard the Marsden motion. During the Marsden hearing, appellant indicated she needed more time to discuss her case with her attorney before going to court. The court ultimately denied the Marsden motion, and then indicated that it would trail the matter so that appellant would have an opportunity to speak with her counsel. When the matter was recalled, the court again characterized it as a "non-contested jurisdictional" hearing. Appellant requested additional time for the hearing, which was granted by the juvenile court.
People v. Marsden (1970) 2 Cal.3d 118.
The following week the jurisdictional and dispositional hearings were called before the court in a consolidated hearing. At that hearing, appellants counsel waived advice of appellants rights and the court indicated that it had received the social workers report. Neither the Agency nor appellants counsel presented any witnesses or evidence or argument regarding the jurisdictional issues. The juvenile court proceeded to find true the allegations of the petition and determined that the minors came within the courts jurisdiction.
The only witness called at the hearing testified regarding the notice requirements of the Indian Child Welfare Act.
A review of the record indicates that appellant did not receive a contested jurisdictional hearing. Rather, it appears that, after speaking with counsel, appellant decided to allow the court to decide the matter of jurisdiction based on the social workers report. The mere fact that appellant decided to submit the matter at the time scheduled for the hearing does not mean that she received a hearing. Therefore, we reject respondents argument.
Although appellant has established error, this court will not reverse the lower courts ruling unless appellant also demonstrates she was prejudiced by the error. We conclude appellant has met her burden in demonstrating prejudice. This case is unlike Monique T. In that case, the mother submitted the issue of jurisdiction to the court. The court asked the mothers counsel if she had advised her client of her rights in association with a jurisdictional hearing and inquired of counsel whether the mother indicated that she was willing to waive those rights. (In re Monique T., supra, 2 Cal.App.4th at p. 1376.) Counsel indicated that the mother had waived her rights and wished to submit the matter. (Ibid.) The appellate court found the juvenile court erred in failing to obtain a personal waiver of the mothers rights in association with the jurisdictional hearing. (Id. at p. 1377.) However, the court found the error was harmless because the mothers attorney explained her rights to her and the mother indicated that she wished to waive them. There was never any assertion on appeal that the mother did not in fact intend to waive her rights or that she was under any pressure to do so. In addition, the court noted that the mothers inability to care for her child was uncontradicted and the mother did not indicate that she could introduce any other evidence. (Id. at p. 1378.) Based on these facts, the court found the error harmless.
We need not determine whether the error should be judged pursuant to the standard enunciated in Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818, 836, as we find the error prejudicial under either test.
In the present case, there was never any indication from appellant that she wished to waive her right to a contested hearing. Rather, the evidence was to the contrary, with appellant seeking a contested hearing. Appellant repeatedly asked the court for more time to prepare her case before the hearing, indicating that she indeed sought a contested hearing. There is no record of the court apprising appellant of the rights she would forfeit by submitting the issue of jurisdiction based on the social workers report. Additionally, there is no indication that appellant was ever informed by her counsel of the consequences of submitting the issue of jurisdiction to the court.
Finally, the evidence leading to the jurisdictional finding was contradicted. The minors were declared dependents of the court based upon appellants substance abuse and homelessness and because appellant could not provide for the care of her children while she was incarcerated. While appellant did admit to the social worker that she had a drug problem and she indicated that she wanted to seek treatment, there were no indications that her drug use placed her children at risk of harm. Furthermore, although appellant was characterized as "homeless" the police report indicated that appellant had been staying at a motel for at least two days. It was uncontested that appellant was incarcerated and that the childrens fathers whereabouts were unknown, but there were conflicting indications regarding whether appellant could arrange for the care of her children while she was in custody. According to the social workers report, appellant stated that she had no relatives able to care for her children. However, at the dispositional hearing, appellants counsel informed the court that appellant had provided the name of a relative who might be able to care for the children. Appellants counsel provided the name, address and telephone number of this relative to the social worker. At the conclusion of the hearing, the juvenile court ordered the Agency to look into placement of appellants children with the relative. Based on this record, we cannot say that the error in failing to advise appellant of her rights and receiving a knowing, voluntary and intelligent wavier of those rights was harmless. Thus, we will reverse the jurisdictional and dispositional orders.
Appellant did admit that her drug use has "interfered with her role as a parent" but the report shed no light on how appellants parenting skills were affected, nor did the report indicate how the children were at risk of any harm.
DISPOSITION
The jurisdictional and dispositional findings and orders are reversed. The matter is remanded to the trial court to conduct a new jurisdictional hearing in this case.
It has come to this courts attention that an order for a section 366.26 hearing has issued. In the event that appellant once again submits on the Agencys evidence supporting jurisdiction, provided there is a valid waiver of constitutional rights, this opinion does not constitute a stay of that hearing. In the event there is contested hearing, the court shall proceed accordingly.
WE CONCUR: Buckley, Acting P.J. and Wiseman, J.