Opinion
H025197.
10-24-2003
In re U. R., et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. SUSANA S., Defendant and Appellant.
The mother in this dependency proceeding appeals from disposition orders removing her four children from her care and custody. She argues that the Welfare and Institutions Code section 300 petition failed to state legal grounds for jurisdiction, that substantial evidence did not support the courts jurisdictional or dispositional findings, that the juvenile court violated her right of self-representation, that the court violated due process by appointing a guardian ad litem, and that several elements of the case plan adopted by the court were not supported by the evidence. We affirm the disposition orders.
All further statutory references are to the Welfare and Institutions Code.
CASE SUMMARY
On February 7, 2002, 12-year-old F.E. reported to her school principal that her mother had slapped her on the face that day after accusing her of stealing some perfume. She further reported that a few days previous to this her mother had gotten angry and had pushed her into a table, causing a bruise on her hip. She also said that her mother hits her little brother with a coat hanger. She said she was afraid to go home. Her mother had told her " `Im giving you away. " Finally she described finding marijuana and marijuana paraphernalia in the house and she said she knew her mother smoked marijuana at home because she could smell it. Based on this report, San Jose police detained F. and her three siblings: U.R., R.E., and B.E. They were placed in protective custody. On February 13, 2002, petitions were filed as to all four children, containing allegations under section 300, subdivision (b) [failure to protect] and subdivision (j) [abuse of sibling].
A jurisdictional/dispositional report was prepared for March 6, 2002. The report described four prior referrals/investigations regarding this family. The most recent involved a dispute between the mother and a cousin over custody of the minor U. U. had been living with the cousin for approximately 10 months and at one point the mother had agreed to allow the cousin to be U.s legal guardian. However, in November of 2001, the mother had changed her mind and demanded that U. be returned to her, accusing the cousin of "child stealing." U. was taken into protective custody. The investigator wrote that the mothers home was "extremely dirty" and there was concern about U.s safety in being placed back with her mother. U. reported that the mother used marijuana and kept drugs in the home. U. had heard her mother making a drug sale on the telephone. The home was later cleaned and safety hazards removed, and U. was returned to her mothers custody. The mother was offered family maintenance services but she refused all services.
A second referral, in May of 2001, involved the two young boys, R. and B. Their day care teacher reported that R. had a bruise one day and said his uncle did it, and that both boys were dirty "all the time, both their bodies and their clothing." They sometimes had "dried, crusted feces on their bottoms." The teacher reported that the mother "becomes extremely angry" when asked to bathe the children and wash their clothes. During the investigation of this referral, R. told the investigator that his father was an alcoholic and that he was in jail because of domestic violence toward the mother. The investigation also uncovered a prior incident where R. came to day care with two long parallel bruises across his back "consistent with marks left by a wire hanger" and he explained that his mother hit him. The mother refused to divulge her address to the day care staff. Staff had been informed that two of the children did not live with the mother but with their grandmother.
The jurisdiction report noted the mother had numerous arrests and convictions from 1990 through 1994, including drug-related offenses, welfare fraud, forgery and driving without a license. She was a registered narcotics offender until August 12, 2001. The mother told the social worker after the children were taken into custody that F. had a tendency to lie and that she had made up the stories she reported. The mother said she never hit her daughter. The social workers report also included a transcribed phone message received from the mother on March 1, 2002, informing the social worker that her kids were fine and that they did not have problems until the Department started to interfere and took them away from her. She told the social worker several times "I am not letting you build a case, I am going to stand in front of that," and "I am not going to talk to you." The social worker wrote that the mother was "in need of counseling as she is in denial of the childrens problems." She further reported that the children had not had a stable housing situation and that the mother had been involved in harmful relationships affecting the children. The mothers substance abuse had not been addressed, and the mother refused counseling. In the social workers opinion, the mother caused a "risk for the childrens well being" because she did not take responsibility for her actions.
The social workers report summarized the facts supporting each allegation in the petition, which included allegations regarding the incidents involving F. that led to the children being placed in protective custody, allegations regarding prior referrals, including the boys uncleanliness and the alleged hitting with a hanger, the mothers use of marijuana in the home, the mothers criminal record, an allegation that there had been domestic violence in the home, and allegations that none of the fathers of the children were involved in their lives and that one father had a criminal record including molestation.
As to the children, the court had authorized an extended visit for the oldest child, U., with the cousin who had been taking care of her. U. stated that she did not want to return home to her mother, but wanted to stay where she was or be placed with an uncle and aunt. She did not want to be near her sister F. F. was at the childrens shelter and the two boys were in two different emergency satellite homes. F. was reported to have "many emotional issues" and had seen a therapist on a regular basis at the childrens shelter. She was in the seventh grade but tested between third and fifth grade levels. She was described as "very needy" and she was disappointed that no relatives in the family wanted to take her. She said she knew that her mom did not want her. She did not get along with or talk to her siblings. None of her siblings wanted to be placed with her. She stated both that she wanted to go home and that she did not want to go home. R. had a tendency towards aggressive behavior with his younger brother and with other children, as well as some inappropriate sexualized behavior. B. was doing well in his foster home. The children were in separate foster homes because there was so much conflict between them.
The mother was offered various referrals, but did not take advantage of them, although she attended visits with the children at Clover House. The social worker recommended that the court take jurisdiction, that the children be removed and that the family be offered reunification services, including parenting classes, counseling and psychotherapy, drug testing, and domestic violence support.
After receiving the social workers report and an amended petition, the mother filed a lengthy line-by-line response, objecting to the allegations in the petition and refuting the factual statements contained in the report. The jurisdictional hearing was set for trial and was continued several times. In May of 2002, the parties participated in mediation but were unable to resolve the jurisdictional issues.
The jurisdictional hearing was held on June 20, 2002. The mother represented herself. She had filed a motion to dismiss the petitions for failure to state a cause of action and a motion in limine seeking to exclude or strike the factual allegations in the petitions. Attached to the motion was a letter from F. to her grandmother saying she knew "making up stories was wrong" and apologizing for hurting her mom and causing problems for the whole family. The court denied both motions. Social workers reports updated the status of the case since the children had been taken into protective custody in February 2002. U. was doing well in her relative placement. F. was still exhibiting behavior problems and had several failed placements. She had been returned to the childrens shelter. The therapist at the shelter recommended individual and family counseling for her. The worker reported F. was in need of educational testing but the mother would not sign the educational testing form. R. had also been moved to several different homes because of aggressive and inappropriate behavior. Counseling was started for him and a placement was found that appeared to be stable. B. was doing well in his placement.
The mother had refused to drug test and had refused counseling for herself or with her children. She was not participating in any classes. She contended that she was not going to participate until the court specifically ordered her to do so. She was inconsistent with visits, and the children were disappointed when she did not show up. The mothers behavior was often inappropriate during the visits. U. refused to attend visits. F. also stated from time to time that she did not want to visit. The mother blamed F. for telling stories and getting the family involved in the court process, and she also blamed the social worker for her childrens problems. She denied any participation in the incidents at home that had precipitated the dependency.
The court admitted into evidence the social workers report of March 6, 2002, and three addendums. Upon objection by the mother, the court did not admit into evidence the most recent addendum dated the day of the hearing. The court denied the mothers request for a continuance of the hearing. The mother declined to cross-examine the social worker and called no witnesses. The court sustained the third amended petitions for all four children and found them to be children described under section 300, subdivisions (b) and (j).
The court urged the mother to have an attorney appointed to represent her. The court stressed that the mothers "unwillingness to cooperate with the social worker, and allow yourself to at least begin services, and your unwillingness to have an attorney represent you, to assist you with these legal proceedings is going to result in a situation where your children cant be returned to you. And there is no reason for that to happen." The court emphasized that "you need to begin the services that the social worker has offered to you. None of those things are at this point an admission that youve done something wrong." And again the court explained, "the way you are doing this is going to result in a tragic outcome, and I really urge you to allow me to appoint an attorney to assist you in these proceedings." The mother refused to have an attorney appointed.
The court also considered the Departments request for F. and R. to participate in counseling and for F. to obtain a psychological evaluation. The mother opposed all of this. The court authorized the Departments requests, and also signed an order that the mother herself participate in a psychological evaluation in order to assist the court in making its dispositional orders. The court set the matter for disposition, and again explained to the mother "I want to make sure you understand that if at any time you decide you wish to be represented by an attorney, Ill appoint one to represent you, one thats familiar with the juvenile dependency proceedings and will assist you in the process. I urge you once again to take advantage of that because I really believe that some of the decisions you are making in the way that you are handling the case are going to be to your detriment and your childrens detriment and may frustrate our efforts to ultimately reunify you with your children." The court set disposition for July 2, 2002.
The mother then filed a motion to vacate jurisdiction, contending that the jurisdictional hearing had "lacked all of the necessary elements of a fair adviserial [sic] proceeding, i.e., due process." She also filed a motion to prohibit the service of the social workers report on the day of a scheduled hearing. At the hearing on July 2, 2002, the court denied these motions. The court then cautioned the mother again about representing herself and refusing to cooperate with social services. The court informed her that this was the kind of case that "usually result[s] in . . . children going home with a limited amount of services that are needed in order to solve the excessive discipline kinds of problems that we have before us." The court explained that the mother was putting herself at a disadvantage by not working with a court-appointed attorney and by focusing on her personal battle with the system rather than participating in the services necessary to get her children back. The court told the mother: "Your insistence on not having an attorney to represent you at public expense and your insisting on continually providing new motions to the court and concentrating on your due process rights, and the actions that are occurring in the court, you are missing the point at this time and its going to result in your children staying away from you longer than they need to."
The court reviewed the proposed case plan with the mother, who responded: "I object at this time because I would like to re-litigate the jurisdictional facts." The court explained that jurisdiction was already decided and that this was now a dispositional hearing; however the mother, who was apparently reading from a prepared statement, repeatedly asserted that she wanted to go back to the jurisdictional findings and that she wanted a continuance. The court then questioned the mother about her understanding of the proceedings and stated: "I am beginning to believe that you are incapable of understanding the nature of the proceedings that are before the court today and that your inability to understand that is either based on-Im not sure what its based on . . . ." The court set a contested disposition hearing.
The mother then filed a number of written motions: " OBJECTIONS TO TAKING JUDICIAL NOTICE OF ENTIRE COURT FILE;" an "OBJECTION TO PETITIONERS REQUEST FOR A COURT ORDER REQUIRING RESPONDENT WAIVE CONSTITUTIONALLY PROTECTECD PSYCHOPATIENT PRIVLIGE PURSUANT TO COURT ORDERED REUNIFICATION SERVICES;" "OBJECTIONS TO COMPULSORY COURT ORDERED EVID. CODE § 730 PSYCHOLOGICAL EVALUATION;" a motion "TO VACATE ORDER DENYING `RELITIGATING JURISDICTIONAL FACTS;" and a MOTION TO COMPEL THE DEPARTMENT OF FAMILY AND CHILDRENS SERVICES TO FOLLOW THROUGH WITH THE MINOR . . . ORTHODONTIST APPOINTMENTS . . . ."
On July 25, 2002, the court convened for a contested disposition hearing. At the outset, the mother objected to the court admitting the social workers reports and insisted she wanted to relitigate the jurisdictional findings. The court told her "what you are saying makes absolutely no sense, and thats the reason why I have repeatedly requested that you have an attorney to represent you. You are using legal words and making statements about legal doctrines that make absolutely no sense with respect to whats happening here today." The mother continued to object and the court received the reports over her objections.
After a brief recess, the court informed the mother as follows: "Im going to . . . see if I can do something that will help to protect your rights as you come into court today because it is clear to me that you do not understand how to represent yourself in these court proceedings. [¶] The motions that you have filed, there are five of them before the court . . . That, along with a statement that you made at the very beginning of the trial, just cause me tremendous concern in terms of how this trial is going to go forward, with it being very clear that you are attempting to represent yourself and not understanding at all the legal proceedings and the court proceedings that are before the court, and the effect of that could possibly be a result that is not necessary with respect to the circumstances that bring the children before the court, but that will be the result because of the way that you represent yourself in court and your inability to understand how to do that correctly. [& para;] So this is what Im going to do. Im going to put this matter over. Im going to appoint a consultant/attorney to discuss these matters with you. Im going to have that consultant/attorney available . . . to assess the matter with you. Once I have done that, if you decide not to discuss the matter with your consultant/attorney or the consultant/attorney indicates that it might be appropriate, I will then consider whether or not it is appropriate to appoint a guardian ad litem . . . ." The mother interposed objections throughout the courts statement.
The following day, the mother filed a statement for the dispositional hearing. She asserted that the court made findings at jurisdiction that were "utterly impossible" and that now at disposition, where the burden of proof was clear and convincing evidence, the court was "continuing this shame by allowing the findings at Jurisdiction to continue at this standard without one IOTA of allowance for me to Litigate the ridiculous facts the court has found to be true." She characterized the dependency proceedings as "legalized fraud" and likened them to "watching `Laurel and Hardy." She contended that the proceedings violated her federal constitutional rights under the Fourth, Fifth, Seventh, Ninth and Fourteenth Amendments to the United States Constitution, and that the parties involved were in violation of various federal criminal and civil rights statutes.
A consultant/attorney was appointed to talk with the mother, and he reported to the court at the next hearing. He told the court the mother was "very clear that she would like to continue representing herself." Furthermore, she did not want him in the courtroom during the hearing. The court indicated its concern that "mothers mental status is deteriorating, and that it is — that there is a real question about whether or not the mother understands the nature of the proceedings and whats at stake here . . . ." The court asked the mother how she proposed to proceed at disposition, and the mother responded: "I perfectly understand whats going on. I understand that disposition is — is by clear convincing evidence versus the preponderance of the evidence, and its to my understanding that youre asking the county counsel what report youre asking to take into evidence and for failures of the application that Im clearly sufficient gives hopes for — to relitigate the jurisdictional findings." The court then said: "It is my judgment based on these — respondents statements for contested dispositional hearing[,] . . . based on the statement that the mother made at the beginning of trial that we tried to commence last week and based on the statements that the mother just made that she is incapable and does not understand — [MOTHER: I think I am capable] — the proceedings that are before the Court at this time, and the matter will be set over to identify an appointed guardian ad litem."
The mother objected to the appointment of a guardian ad litem, and on August 6, 2002, she filed an "At Issue Memorandum Regarding Appointment of a Guardian ad Litem." She asserted that she and the court had "differences of opinion as to what the law says" but that it was the court commissioner who did not understand the law and who repeatedly used "strong-arm tactics" against her and disregarded her constitutional rights. At the next hearing, the court appointed a guardian ad litem for the mother and also appointed counsel.
When court reconvened, appointed counsel objected on behalf of the mother to the appointment of the guardian ad litem. The court set the matter for a continuation of the contested disposition. The mothers writ petition in this court, challenging the appointment of a guardian ad litem, was denied August 14, 2002, in case No. H024856.
The disposition hearing recommenced on September 30, 2002. The social workers report indicated that U. had moved to a maternal aunts home and was doing well. F. continued to exhibit behavioral problems at school, including experimenting with drugs. She was on the verge of losing her placement. A psychological evaluation of F. revealed that her emotional problems "have been influenced by the way her mother has treated her . . . ." She felt "rejected and unloved by her mother." The evaluator opined that the mothers refusal to participate in a psychological evaluation herself or to participate in counseling with F. indicated an unwillingness to take responsibility and these were "pessimistic indications for a positive resolution of this case." R. was also having problems in his placement and at school. B. was in a fost-adopt home and was doing well. He wanted to continue to live there. The mother continued to refuse services, including drug testing, and did not respond to any of the Departments referrals. She sent a letter to the social worker stating that she did "not trust anyone who provides services through the Department . . . ." The mother was unemployed and was living with the maternal grandmother.
Weekly visits with the children had been fairly regular in the weeks leading up to disposition. The childrens maternal grandmother also attended. U. had not participated in visits for several months. Much of the interaction during the visits was affectionate and appropriate. The mother brought food and the family ate together. However, the mother was also inappropriate at times, including using profanity and talking to the children about the court and the social worker. On occasion she also had disputes with staff at Clover House. The mother and F. did not interact very much during the visits. The social worker observed that the mother blamed F. for the familys problems and that the other siblings would go along with this and distance themselves from F. F. had indicated recently that she did not want to attend visits. Based on reports from Clover House staff and the foster parents, the social worker wrote that the visits were "detrimental for the children." They tended to exhibit behavioral problems following the visits. The social worker recommended that the children be removed from the mothers custody and that reunification services be ordered. The worker also recommended that visits with the children be reduced.
At the beginning of the hearing on September 30, 2002, counsel for the mother addressed the motions that had been filed by the mother. Counsel withdrew two motions and the court denied the others.
Counsel for the mother called the social worker. The social worker explained the elements of the recommended reunification plan, including a drug treatment program and domestic violence counseling. She described the family problems that had formed the basis for her opinion that the children should be removed from the mothers custody. She acknowledged that the mother and children were bonded and that affection was expressed between them at the visits. No other witnesses were called; however, the court granted a continuance so that mother could subpoena the childrens pediatrician.
Court reconvened on October 23, 2002, for the continuation of disposition. Counsel informed the court that the mothers witness would not testify after all. The mother submitted evidence that she had completed a drug diversion program in 1993, in connection with a drug-related conviction at that time. The social worker testified that F.s placement had failed and the Department requested authorization for her to receive more intensive services. The court authorized such services. After argument by the attorneys, the court made the following comments about the case:
"Part of the problem is, if I were to say I would send the children home on family maintenance, your clients been completely unwilling to participate in any services whatsoever in order to support a family maintenance. So Im really stuck in this case. Your client wont cooperate with the court process, wont cooperate with the psychological evaluation, wont do a Gateway assessment, wont authorize treatment of any kind for her children while they are in out-of-home care, wont participate in conversations with the social worker about prospective treatment for her children." The court continued: "what I need in order to decide whether these children are at risk and whether or not they can go home and what services to order, is for your client, the mother, to participate in some of these evaluations, the psychological evaluation, and participate in a Gateway assessment. And so — I think theres ample evidence in the record for the Court to need a psychological evaluation of the mother at this point in time to decide which kind of services to be able to order."
After some further discussion where the court expressed its concern about the mothers mental state and the need for a professional evaluation, and the mother reiterated her refusal to participate in such an evaluation, the court concluded: "And so were at an impasse and the impasse will be resolved in favor of protection of the children, and so thats where we are." The court took the matter under submission in order to review the files again, and issued its dispositional orders on October 30, 2002.
The court found by clear and convincing evidence that the childrens welfare required that they be removed from their mothers custody. It further found that the mother had made poor progress alleviating the causes that had necessitated placement of the children in foster care. The court approved a plan of reunification for the mother, including parenting classes, substance abuse treatment, counseling, a domestic violence support group, drug testing and a psychological evaluation. The court ordered visitation twice a month. Visits with F. were to be in a therapeutic setting. A status review hearing was set for January 8, 2003.
The mother appeals from the disposition orders.
ISSUES
Legal Sufficiency of the Petition
A petition under section 300, subdivision (b), must allege facts showing 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 or guardian to adequately supervise or protect the child . . . . or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse." (§ 300, subd. (b).)
The third amended petitions, filed May 10, 2002, contained 20 allegations under subdivision (b) of section 300, as follows:
b-1 — All four children were taken into protective custody "due to F. having been physically abused by their mother."
b-2 — On or about February 7, 2002, the mother slapped F. "with an open hand on the face, because the mother believed she had stolen some of the mothers perfume."
b-3 — Several days earlier, the mother had slapped F. on her face "because the mother accused her daughter of stealing the mothers marijuana."
b-4 — The previous year, in May of 2001, "B. and R.[] were found to be in soiled clothing."
b-5 — B. and R. had both been "hit with a hanger by the mother." R. had been observed to have "two lengthy marks on his back" on "September 8, 2002."
This date was a typo, since September 8, 2002 had not yet occurred. The actual date was September 8, 2000.
b-6 — F. and U. had "knowledge of their mother and mothers friends smoking marijuana in the family home."
b-7 — F. and U. had seen marijuana in the mothers room and F. had seen marijuana paraphernalia in the mothers sock drawer.
b-8 — F. and U. had "heard their mother state numerous times that if F. were to go to the Childrens Shelter, she will not be returning to the family home, and that the maternal grandmother will not take her."
b-9 — F. is "emotionally unstable as she exaggerates, lies, steals, has poor self-esteem, is easily influenced by others, and mother refuses to participate in counseling."
b-10 — Mother was in denial of F.s and R.s "behavioral and emotional problems."
b-11 — Mother accused her cousin of "child-stealing" U., who had been living with the cousin for approximately nine months.
b-12 — U. did not want to return home because she "does not feel safe due to mothers substance abuse, and the mother has been unable to provide a stable structured home environment for her, as well as her mother has hit her in the past."
b-13 — Mother had stated that if U. did not want to come home she could be adopted.
b-14 — At times the mother "has given the children to relatives to care for them, as she has been unable to care for her children."
b-15 — The mothers apartment had a "very dirty" carpet and there were holes in the wall. Mother had told the social worker not to visit until she cleaned the place.
b-16 — The family had four prior referrals, including "physical abuse, and neglect." The mother had been provided referrals and services but had refused all services.
b-17 — "The mother was a registered narcotics offender which expired 08/12/01, and has a history of methamphetamines usage."
b-18 — The mother had been "involved in domestic violence with the childrens step-father . . . and has not attended counseling."
b-19 — The father of the girls had no relationship with them and no contact for approximately six years.
b-20 — The father of the girls had a criminal history, including Health and Safety Code section 11383 (possession of materials for manufacture of controlled substances) and Penal Code section 288a (lewd or lascivious acts with a child under 14).
The allegations under section 300, subdivision (j) repeated the allegations contained in (b)1-5, and (b)8-10.
The mother contends that the petition failed to allege facts showing conduct on her part that would likely cause "serious physical harm or illness" to any of her children. (§ 300, subd. (b).) The Department argues that this claim has been waived by the mothers failure to challenge the sufficiency of the petition in juvenile court. (See In re S.O. (2002) 103 Cal.App.4th 453.) We acknowledge a split of authority on the issue whether a claim raising the insufficiency of the petition in a dependency case can be waived. (See In re Shelley J. (1998) 68 Cal.App.4th 322 , In re Jessica C. (2001) 93 Cal.App.4th 1027,In re James C. (2002) 104 Cal.App.4th 470 [finding waiver];In re Alysha S. (1996) 51 Cal.App.4th 393,In re Nicholas B. (2001) 88 Cal.App.4th 1126 [no waiver].) Here, however, the mother did challenge the sufficiency of the pleading by filing a motion " `akin to a demurrer. " (In re Jessica C., supra, 93 Cal.App.4th at p. 1037; In re Fred J. (1979) 89 Cal.App.3d 168, 176.) She has therefore preserved the issue. (In re Janet T. (2001) 93 Cal.App.4th 377.)
In order to conform with due process, a parent must be given notice of the specific factual allegations supporting jurisdiction, with sufficient particularity to permit a proper response. (In re Fred J., supra, 89 Cal.App.3d at p. 175.) "In the initial `pleading stage, the role of the petition is to provide `meaningful notice that must `adequately communicate social worker concerns to the parent." (In re Jessica C., supra, 93 Cal.App.4th at p. 1037.) In considering a claim of insufficiency of the petition, "[w]e construe the well-pleaded facts in favor of the petition in order to determine whether the [Department] pleaded facts to establish mother failed to supervise or protect the children within the meaning of section 300, subdivision (b)." (In re Janet T., supra, 93 Cal.App.4th at p. 386.)
The mother contends that many of the allegations concern past conduct or closed cases and do not establish a present substantial risk of serious physical harm to the children. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 821-824.) However, "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue. (Id. at p. 824.) A court may find a substantial risk of serious harm "based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the childs siblings, or a combination of these and other actions by the parent or guardian, which indicate the child is at risk of serious physical harm." (§ 300, subd. (a); In re Janet T., supra, 93 Cal.App.4th at p. 388.) Here, although the marks on R.s back from being hit by his mother were from an incident in 2000, and although U. said her mother had hit her at some time "in the past," the petition also alleged that the mother had recently slapped F. on the face on two different occasions and she had hit both boys with a hanger. Other allegations were that the mother had been involved in domestic violence with the childrens stepfather, and that there had been prior referrals involving physical abuse and neglect. Furthermore, although the mother had had no arrests or convictions for drugs for the previous seven years, the petition alleged that the children knew the mother smoked marijuana in the house, that F. had seen marijuana and drug paraphernalia in the house, that one of the recent violent incidents arose from the mother accusing her daughter of stealing her marijuana, and that U. did not want to return home because she did "not feel safe due to the mothers substance abuse." Finally, the petition alleged that F. and R. had emotional and behavioral problems, and that the mother was in denial about their problems, refused to participate in counseling, and refused any services offered by the Department to address the problems.
A petition is sufficient if it pleads "essential facts establishing at least one ground of juvenile court jurisdiction." (In re Alysha S., supra, 51 Cal.App.4th at p. 397.) Here the petition alleged a history of drug use and violent conduct, as well as present incidents of physical harm and drug use in the home, coupled with allegations of the negative effects on the children and the mothers unwillingness to recognize the problems and participate in services addressing them. We believe the allegations were set forth in sufficient detail to give mother notice of the Departments concerns why there was a substantial risk that the children would suffer serious physical harm as a result of her failure or inability to protect them adequately. (§ 300, subd. (b).) In addition, the court may take jurisdiction under subdivision (j) based on allegations of harm to siblings. We find the petition was facially sufficient.
Sufficiency of the Evidence to Support Jurisdiction
The Department has the burden of showing, by a preponderance of the evidence, that the circumstances are such that the children are subjected to a substantial risk of harm due to the parents inability to supervise or protect them. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) On appeal we review the jurisdictional findings under the substantial evidence standard. We examine the record to determine whether there is any substantial evidence, contradicted or not, to support the courts findings. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We indulge every inference and resolve all conflicts in favor of the courts decision. (Ibid.) Each allegation need not independently support jurisdiction. The court can take jurisdiction on evidence of a "pattern of behavior" resulting in a substantial risk of harm to the children. (Id. at p. 1650.)
The mother argues that there was evidence that F. had lied about the slapping incidents that precipitated this dependency, in the form of a letter from F. saying she was sorry for the trouble she had caused the family. Mother points out that there was also evidence that the bruise on F.s hip was not caused, as she had said, by her mother pushing her against a table. On the other hand, there was other evidence to support these allegations, and the court was entitled to resolve any conflicts. F. told her assistant principal she was afraid to go home because her mother had slapped her and had been "hitting her and pushing her around for the past two years." The principal reported that F. was "very scared." Although there were statements by other family members that F. was prone to lying, she was entirely consistent in her account of the slapping incidents when talking to law enforcement, to the investigating social worker and to the case workers.
Furthermore, substantial evidence supported the other findings regarding physical abuse in the home. U. stated to police that the mother used to get angry with her and hit her "in the head and face." F. was consistent in her statements that the mother hit the boys with a hanger. B. confirmed that the mother hit him with a hanger. R. said his mother hit him and daycare workers observed marks on R.s back consistent with being hit by a hanger. R. also stated that his mother hit him "in his face with her hand." He said his dad was in jail because he "keeps fighting with my mom." The mother corroborated that her former husband was incarcerated for domestic violence.
The allegations of neglect were supported by a report from daycare workers that the boys bodies and clothing were often extremely dirty, that B. frequently arrived with "sopping wet diapers and smelling of urine," and that the mother was not receptive to reminders to bathe the children and dress them in clean clothing. There were two incidents where R. had bruises. There was evidence R. lived most of the time with the maternal grandmother and was physically abused by an uncle. Nine other people lived in this home. The daycare workers were uncertain which children lived where, and the mother did not provide them a home address. In connection with an incident in November of 2001, the investigator reported that the mothers home was extremely dirty and "not suitable." U. also stated that the home environment was "dirty" and "unstable" and that she was often left home alone. Both girls confirmed statements made by the mother to the effect that she did not care if they returned home or not.
Furthermore, there was evidence in the record supporting the allegations of a history of drug use and present drug use. The mother had several arrests or convictions during the years 1990 to 1994 for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), possession for sale (Health & Saf. Code, § 11351), and being under the influence (Health & Saf. Code, § 11550). F. said that her mother habitually smokes pot in her bedroom, leaves the kids in the main room and tells them to leave her alone. F. and U. said that they can smell it when their mother smokes marijuana in the bedroom. F. found marijuana hidden in a blue bag in a stereo speaker and threw it away. Her mother became enraged and accused her of stealing marijuana and pushed her against a table. F. also found some pipes hidden in her mothers sock drawer. U. stated that she saw marijuana in her mothers bedroom and heard her mother on the phone trying to buy marijuana. U. had also stated, in connection with a previous referral, that she was afraid to return home because of the mothers past drug use, her "aggressive behavior" and her friends coming over all the time and "doing drugs." The mother contends that her drug tests were negative. However, this is not supported by the record, which reflects that she did not show up for any of her drug tests.
In sum, the record in this case contains substantial evidence of past and present drug use, neglect and physical abuse sufficient to support the courts finding of jurisdiction for all four children under section 300, subdivisions (b) and (j).
Right of Self-Representation
The mother contends the court violated her right of self-representation by not allowing her to continue representing herself prior to the hearing on disposition.
There is no constitutional right of self-representation in dependency proceedings. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1082.) However, there is a statutory right of self-representation. (In re Justin L. (1987) 188 Cal.App.3d 1068.) Error in denying that right is analyzed under ordinary principles of harmless error as set forth in People v. Watson (1956) 46 Cal.2d 818, 837. (In re Angel W., supra, 93 Cal.App.4th at p. 1085.)
A court "must respect the right of the parent to represent him or herself as a matter of individual autonomy and avoid forcing the mentally competent parent to proceed with appointed counsel in the guise of protecting a person who is unskilled in the law and courtroom procedure." (In re Angel W., supra, 93 Cal.App.4th at p. 1084.) On the other hand, the court may exercise its discretion to deny self-representation "when the pro se litigant `is and will remain so disruptive as to significantly delay the proceedings or render them meaningless and negatively impact the rights of the minor in a prompt and fair hearing . . . ." (Id. at p. 1085.)
We find no error or abuse of discretion in this case. The court allowed the mother to represent herself through jurisdiction; however the court warned the mother that her continued self-representation could "result in a tragic outcome" where the children would not be returned to her and the court urged her to "allow me to appoint an attorney to assist you in these proceedings." The mothers case was severely compromised due to her self-representation. She did not cross-examine the social worker at jurisdiction. She was unprepared to produce the witnesses she claimed she had ready. She became fixated on a social workers report being filed the day of the hearing. She argued that the court had not ruled on her motions when it had ruled to deny them. And she repeatedly tried to re-litigate jurisdiction after the petition had been sustained. At subsequent hearings following jurisdiction, the proceedings were halted numerous times while the court attempted to persuade the mother to address the issues before it. The mother continued to make repetitive and inappropriate objections. Finally, the court informed her "what you are saying makes absolutely no sense, and thats the reason why I have repeatedly requested that you have an attorney represent you." The court indicated its desire to "do something that will help to protect your rights . . . because it is clear to me that you do not understand how to represent yourself in these court proceedings." A litigant who does not understand the proceedings and the dangers and disadvantages of self-representation cannot knowingly and intelligently waive the right to represent herself. (In re Brian R. (1991) 2 Cal.App.4th 904, 919.)
The record supports the courts decision. And even if the court had erred in refusing to allow the mother to continue representing herself, we would find such error to be harmless, as there is no reasonable probability that a result more favorable to the mother would have been reached had she been allowed to continue to represent herself. (People v. Watson, supra, 46 Cal.2d at p. 837.)
Appointment of Guardian Ad Litem
A guardian ad litem may be appointed in a juvenile dependency case where a parent does not understand the nature of the proceedings and is unable to assist counsel in protecting her interests in the companionship, custody and control of the child. (In re Sara D. (2001) 87 Cal.App.4th 661, 667.) Due process requires that a parent have the opportunity to be heard prior to the court appointing a guardian ad litem. (Id. at p. 672.) A decision to appoint a guardian ad litem may not be based on whether "the individual is difficult to handle as a participant" in the dependency proceedings. (In re Joann E. (2002) 104 Cal.App.4th 347, 359.) The mother argues that the court erred in this case in not holding a hearing under In re Sara D., supra, to determine whether a guardian ad litem was justified. She further contends that the appointment of a guardian ad litem was not supported by the evidence.
The purpose of a Sara D. hearing is so that the court may make appropriate inquiries of the parent, provide an explanation of why a guardian ad litem is necessary, and allow the parent the opportunity to be heard. (In re Sara D., supra, 87 Cal.App.4th at p. 672.) However, the court in Sara D. explained that this does not require a formal hearing and that the circumstances for appointment of a guardian ad litem "may vary widely" from case to case. (Id. at p. 671.) Here the court interacted face to face with the mother during the course of numerous hearings in this matter. The mother had ample opportunity to be heard and to voice her objections to the appointment of a guardian ad litem. The court found, on the basis of the mothers statements in court and her written filings, that the mother was "not understanding at all" the legal proceedings before the court. The court explained to the mother that "[a] guardian ad litem would have the authority to take over the case, and the guardian ad litem would have an attorney to represent him or her and then would make the decisions on how to proceed in these court proceedings for you rather than have you make those decisions." The court appointed a consultant/attorney to discuss the matter with the mother.
When counsel reported back that the mother wanted to continue to represent herself, the court again found that "there is a real question about whether or not the mother understands the nature of the proceedings and whats at stake here." The court asked the mother directly what she intended with respect to litigating the dispositional issues. The mothers answer to this, despite her assurance that she understood "perfectly" what was going on, indicated that she still was intent on relitigating the jurisdictional findings. The court concluded, based on all of its interactions with the mother, that "she is incapable and does not understand . . . the proceedings that are before the Court . . . ." The court then stated its intention to appoint a guardian ad litem. This record indicates that the requirements of Sara D. were satisfied here.
The mother points to a statement the court made at the jurisdictional hearing on June 20, 2002, where the court said: "Youre intelligent enough to represent yourself. You do not need a guardian ad litem. You do understand the nature of these proceedings. So I cant take away from you the authority to conduct these proceedings." However, when the court attempted to move on to dispositional issues, the mothers inability to understand the process became more and more apparent. The court informed the mother repeatedly that this was the kind of case where the children would generally be sent home with a minimum amount of services, but that her insistence on not having an attorney and on continually bringing motions and arguing about her own rights were "missing the point" and were resulting in the children having to stay away from her longer than needed. The court observed that it did not know how to get the mother to hear and to understand this and indicated: "I am dismayed and Im sorry that I cant get that information to you in a way that youd understand it and accept it . . . ." The court explained that the point of the process was to reunify the family and the court said to the mother: "Im not sure that you understand that."
The mother repeatedly insisted on rearguing the jurisdictional facts, and the court told her: "We will not be going back to the jurisdictional finding. I dont know how many times I can say that to you and have you understand. I am beginning to believe that you are incapable of understanding the nature of the proceedings that are before the court today and . . . Im wondering whether or not its necessary to appoint a guardian ad litem to assist you." At the next hearing on July 25, 2002, the court expressed a growing concern about the mothers mental state, telling the mother that what she was saying made "absolutely no sense" and that it was very clear that she was "not understanding at all the legal proceedings . . . that are before the court."
Following this hearing, the mother filed a written statement regarding the upcoming disposition hearing. In this she contended that the jurisdictional facts were "ridiculous" and that the process was a "farce and shame." She suggested that "[d]ocuments and other evidence [were] manipulated away from a parents record so to protect these ridiculous findings." The process, she contended, amounted to "legalized fraud" that squandered tax dollars and violated numerous constitutional rights. (Emphasis in original.) The court noted that the mothers "mental status is deteriorating," and later observed that the mothers written filings reflected a "paranoid" and "confused" thinking process.
Based upon this record, we find there was substantial evidence supporting the requisite findings under In re Sara D. that the mother did not understand the nature of the proceedings and was unable to assist counsel in protecting her interests.
Substantial Evidence Supporting Disposition
A juvenile court can order a child removed from a parent when "there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody." (§ 361, subd. (c)(1).) This showing must be made by clear and convincing evidence. (Ibid.) The mother argues that the Department failed to make such a showing. In a related argument, she contends that the court erred in allowing the Department to rely on jurisdictional facts, which are found by only a preponderance of the evidence, as a basis for ordering removal of the children, which requires clear and convincing evidence. She contends that the doctrine of collateral estoppel, which might otherwise preclude a parent from attacking findings made at a prior hearing "does not preclude relitigation of the issue where the adversary has a significantly heavier burden than he had in the first action." (In re Nathaniel P. (1989) 211 Cal.App.3d 660, 670; Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738.)
The authorities relied upon by the mother are distinguishable. In Blanca P. v. Superior Court, supra, the Department filed a subsequent petition under section 387 containing new allegations that the father had molested his child. At the hearing on the subsequent petition, the juvenile court was under the mistaken impression that the facts had already been decided. Although the record indicated the judge had not even read the subsequent petition, it was sustained and the sustained petition formed the basis for the eventual termination of services at the 18-month review. The appellate court in Blanca P. found that, apart from the alleged molestation, the evidence did not support the necessary finding of detriment at the 18-month review hearing. Thus the molestation finding was dispositive and harmless error did not apply. (Blanca P., supra, 45 Cal.App.4th at p. 1747; see also In re Nathaniel P., supra, 211 Cal.App.3d 660.) The court also considered other factors: evidence that the jurisdictional finding had been based on a mistaken impression by the juvenile court; evidence that the father continued to deny the molestation and had subsequently been exonerated in a report by a psychologist; and the fact that a jurisdictional finding is based only on a preponderance standard of proof. Under all of these circumstances, the court found that the order sustaining the subsequent petition did not have collateral estoppel effect conclusively establishing that the father was a child molester. The court reversed the order terminating services so that a new hearing could be held to determine whether the molestation ever occurred.
The circumstances in the case before us are quite different. Here there was no one significant jurisdictional fact, such as the molestation allegation in both Blanca P. and Nathaniel P., which was the sole basis for the findings at the later hearing. There was no mistaken impression by the judge sustaining jurisdiction. The mother points out that there was a typo indicating that the incident alleging that R. had marks on his back took place on September 2002, when it should have been 2000. But the court was made aware of this mistake and found it not to be determinative. Furthermore, unlike Blanca P., the same court commissioner presided here at both jurisdiction and disposition. The commissioner explained: "I am aware that I sustained a petition and Im aware of the evidence that I relied on in order to do that. . . . I have no intention of going back and re-evaluating the evidence that was relied upon in order to sustain the petition at this point." There was no new evidence here refuting the jurisdictional facts, as there was in Blanca P., where a psychological evaluation exonerated the father. The mother argues that there was evidence that F. was prone to lying. Furthermore, there was evidence that the marks on R.s back were scratch marks. However, there was also evidence that the marks were consistent with marks that could have been left by a hanger. And F. was entirely consistent in her account that her mother had slapped her. Furthermore all of this evidence was before the court at jurisdiction.
In sum, Blanca P. involved a combination of particular circumstances that justified relitigating a jurisdictional fact. We do not believe that case stands for the general rule that jurisdictional findings can be relitigated at disposition simply because the standard of proof is higher. Each stage of a dependency proceeding is part of an overall comprehensive statutory scheme. (Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 253.) A parent at disposition is free to argue that the jurisdictional findings do not provide clear and convincing evidence for removing the children. However, absent exceptional circumstances such as were present in Blanca P., disposition cannot be made an occasion for a juvenile court to reconsider the evidence upon which the jurisdictional findings were made.
We turn now to the evidence supporting disposition, noting that even though the burden of proof in the juvenile court was by clear and convincing evidence, we apply the substantial evidence rule in our review. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Here there was sufficient evidence of substantial danger to the childrens physical health, safety, protection, or physical or emotional well-being if they were returned home, as well as evidence that there were no reasonable means by which they could be protected without removing them from the mothers custody. (§ 361, subd. (c)(1).) The record showed incidents of inappropriate discipline and emotional abuse of these children by the mother. Two of the children had severe behavioral and emotional problems. The oldest child was living elsewhere and did not want to return home because she did not feel safe there. A psychological evaluation of F. indicated that her behavioral problems were influenced by "the way her mother has treated her." The social worker wrote that the mothers oppositional and volatile behavior was reflected in the childrens behavior as well, and created "an environment that is unsafe with a potential for continued abuse." There was also evidence that the mother used drugs in the home and neglected the care of her children. In July of 2002, the social worker wrote that "mother has no employment, nor suitable housing" and that this contributed to the at risk situation for the children.
Courts have held that it is appropriate for a juvenile court to consider a parents level of denial when determining the risk to the child if placed with that parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) And the statute provides that a parents failure to participate in court-ordered treatment programs is prima facie evidence that return home would place the children at risk. (§ 366.22, subd. (a).) Here the mothers absolute unwillingness to address, or even to acknowledge, any of the issues and her refusal to cooperate in any services, including counseling for herself and with her children, provided additional support for the courts finding of "substantial danger" to these children if they were to be returned home. The mother repeatedly told the social worker that her family did not have any problems, and suggested that it was the social worker who needed counseling. And she adamantly refused to submit to a psychological evaluation, even though the court impressed upon her that this was "absolutely essential for a return home."
We find that substantial evidence supported the dispositional findings here.
Challenges to the Reunification Plan
We review the juvenile courts order for reunification services under an abuse of discretion standard. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
The mother challenges three aspects of her service plan: drug testing, a psychological evaluation, and a domestic violence group. There was evidence in the record that the mother had used drugs in the past, that she used drugs when the children were present at home and that drugs were involved in her outbursts of anger. She refused to drug test throughout the dependency. As to the psychological evaluation, the court found, and we agree, that the record was "full of information that raises a question about the mothers psychological and mental health . . . [and] that it is absolutely essential for a return home or for any reunification services that the mother participate in a psychological evaluation." In regard to the domestic violence support group, there was evidence that the mothers prior husband was incarcerated as a result of domestic violence towards her. As one of the children put it, his dad was in jail because he "keeps fighting with my mom." Although the mother points to her own assertion in the record that she had seen a therapist about this, the court could exercise its discretion in light of the whole record to order further counseling. Finally, we note that the mother refused to participate in any of the diagnostic evaluations that might have assisted the court in developing a case plan to meet this familys needs. The mother contends that such evaluations violated her privacy interests. However, once a court finds that a child is at risk and assumes jurisdiction, "a parents liberty and privacy interest yield to the demonstrated need of child protection." (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 203.) In sum, we find no abuse of discretion in the courts approval of the reunification plan.
DISPOSITION
The disposition orders of October 30, 2002 are affirmed.
WE CONCUR: PREMO, ACTING P.J., and ELIA, J.