Opinion
F076597
06-26-2018
In re D.C. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. D.C., Defendant and Appellant.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17CEJ300179-1, 17CEJ300179-2)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Gary Green, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
D.C., Jr. (father) appeals from the juvenile court's jurisdiction and disposition orders declaring his children, D.C. and R.C., dependent children pursuant to Welfare and Institutions Code, section 300, subdivision (b), and removing them from his custody. Father contends the juvenile court erred in failing to advise him of his rights or to obtain an express waiver of his rights, and in ordering that he participate in a substance abuse evaluation and recommended treatment and random drug testing. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Detention
D.C., born in 2004, and R.C., born in 2008, came to the attention of the Fresno County Department of Social Services (department) in June of 2017, when D.C. drove a car, with mother's permission, to the park and was in a car accident. R.C. and a younger cousin were also with him in the car at the time, and all three were taken to the hospital. D.C. had a fractured hip; medical results were pending for R.C. At the time, father was in the hospital with a diabetic attack.
All further date references are to 2017, unless otherwise stated.
Mother, C.S., is not a party to this appeal.
On June 16, the department filed a section 300 petition alleging, pursuant to subdivision (b)(1), that the children suffered serious physical harm due to mother and father's failure to adequately supervise the children. The petition alleged mother was not allowed to drive due to seizures, she had brain cancer, and she took numerous medications, including marijuana, affecting her ability to provide ongoing supervision. The petition alleged father should have known D.C. was being allowed to drive the car because father had shown him how to drive; he had previously allowed him to drive the car; and father was aware of mother's medical condition.
Mother reported no known Indian ancestry; father indicated he may have "Blackfeet" ancestry from South Carolina. The tribe was noticed and responded that the children were not enrolled or eligible for enrollment in the tribe.
In the report prepared in anticipation of detention, D.C. reported that father purchased the car for him, and he acknowledged driving on other occasions, sometimes with mother in the car. While mother claimed she did not give D.C. permission to drive, a maternal great aunt reported that both mother and father had given D.C. permission to do so.
D.C. described an unstable home, due to mother and father's poor credit and the inability to get decent housing. While they had lived with the maternal great aunt for a while, she kicked them out because R.C. talked back to her. D.C. was frustrated that father was gone frequently and he did not know where he went. According to D.C., he and R.C. were responsible for helping mother "a lot."
Mother smoked marijuana for her cancer. R.C. said that D.C. was caught the previous day smoking mother's marijuana. Mother told D.C. not to lie about it, but if he wanted some he should "just ask" her. Mother stored her marijuana in a bush on the property to keep the children from getting into it.
A social worker who responded to the home on June 15 to interview mother and father was told by father not to speak to mother because she was "just the mother" and had no right to say anything. Mother had bruising on her upper lip and backside of her left arm, but she claimed to have fallen in the home. Mother denied that father yelled at her or told her she had no rights to her children.
Father blamed mother for the car accident, stating he never gave D.C. permission to take the car. He acknowledged that he purchased the car for D.C., but it was only for an emergency if he was not home. Father stated D.C. could drive somewhere to call for help if mother was having a seizure, although it was noted that D.C. had his own cell phone. Both mother and father acknowledged D.C. had driven mother to the storage unit on one occasion.
When asked about the children's report that father was often not home, father said he took care of everyone because mother did nothing. He said he left at night when the children were asleep because he needed a break. Father was a veteran and had been diagnosed with posttraumatic stress disorder. He had a criminal history that included charges of theft, possession of narcotics for sale, and battery of a noncohabitant. When asked about a previous domestic violence restraining order involving mother and father, father became agitated and the interview was ended.
Mother attended a team decision meeting June 16; father did not. Voluntary family maintenance was found not to be appropriate due to concerns regarding possible domestic violence in the home and a lack of proper supervision of the children.
At detention June 19, both mother and father were present with appointed counsel. The juvenile court ordered the children detained, over father's objection, with discretion for the department to permit extended visits. Jurisdiction/ disposition was scheduled for July 19. Jurisdiction/Disposition
The report prepared in anticipation of jurisdiction/disposition stated that the children were placed together in a foster home. Mother was in an assisted living facility due to ambulatory problems.
Father told the social worker the department had no right to take his children, as they were safe in his care. Neither mother nor father acknowledged the safety concerns of allowing D.C. to drive a car at age 12. A subsequent interview with father had to be canceled as he was uncooperative, irritated and agitated.
D.C. reported that he did not care if he returned home or stayed in foster care, as long he got to be with R.C. D.C. described his parents as old with many medical issues. He thought he and R.C. were a burden to mother and father. D.C. felt his parents could benefit from domestic violence classes, as father occasionally hit mother. He also asked for counseling for father to address father's gambling addiction.
R.C. said she wished to reunify with her parents, but that they needed help so they could stop fighting. She did not mind staying in foster care while her parents addressed their problems.
The department placed referrals for services for mother and father, but both indicated they would not participate in services until ordered to do so by the juvenile court.
At the scheduled July 19 jurisdiction hearing, the juvenile court stated, "It's my understanding with regards to jurisdiction that the parents are not prepared to submit on the allegations and have requested a mediation and settlement conference and contest." The juvenile court then scheduled updated discovery for September 8, mediation for September 18, settlement conference for September 20, and trial for September 27.
At the September 18 mediation conference, the juvenile court noted no resolution as to jurisdiction had been reached. Father's counsel described father's issue as focused on the particular language of the petition stating the children suffered serious physical harm or illness. Counsel stated she would talk to the department to see if that particular language could be eliminated. The juvenile court encouraged father to work with counsel to come to a resolution. If the case did not resolve, statements of contested issues and witness lists would be needed by September 20 and jurisdiction would follow on September 27. When asked if he had anything further, father's counsel stated, "Nothing, Your Honor." The juvenile court determined the Indian Child Welfare Act of 1978 did not apply.
Mother was not present at the contested jurisdiction hearing September 27. Father's counsel stated that, as she was walking into the courtroom with father, father expressed a desire to "bring more evidence, witnesses, statements, that type of thing," leading her to believe father wanted a continuance. The juvenile court denied the continuance request, stating it had already been three months since detention.
Father's counsel then stated that she had spoken to father, who had reservations about the petition, leading counsel to believe father did not want to submit, but to object to the petition. Counsel further stated that, after conversations with father, she suggested she would present an argument on his behalf, rather than have him testify, and that was how she believed father wished to proceed. Counsel then made a strong argument on father's behalf challenging the allegation against him in the petition and the need for removal.
The juvenile court found the petition true and ordered the children removed from the custody of both mother and father. Mother and father were ordered to participate in parenting classes, substance abuse evaluation and recommended treatment, mental health evaluation and recommended treatment, and random drug testing. Postdisposition mediation was scheduled for November 13.
DISCUSSION
I. DID THE JUVENILE COURT FAIL TO ADVISE FATHER OF HIS TRIAL RIGHTS AND THE CONSEQUENCES OF A WAIVER OF THOSE RIGHTS?
Father asserts that the juvenile court denied him due process of law because it failed to advise him of his rights and to obtain a knowing and intelligent waiver of those rights as required by California Rules of Court, rules 5.534(g) and 5.682. We agree that the juvenile court erred in failing to give father the required advisement of his rights, but find the error harmless.
All further references to the rules are to the California Rules of Court.
Dependency proceedings implicate the fundamental right of parents to the care and custody of their children, and thus, such proceedings may not abridge that parental right without due process of law. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1377 (Monique T.).) Rule 5.534(g) provides that, at the initial proceeding arising under section 300, the juvenile court must advise the parent of the right (1) to assert the privilege against self-incrimination; (2) to confront and cross-examine the persons who prepared reports or documents submitted to the court and witnesses called to testify against the parent; (3) to use the process of the court to bring in witnesses; and (4) to present evidence to the court. Rule 5.682 then requires the juvenile court to advise the parent of the right to a hearing on the issues raised by the petition (a)(1); to ask whether the parent intends to admit or deny the allegations (b); whether they wish to waive a further jurisdictional hearing (d); and make a finding whether the waiver was knowingly made (e). Formal advisement of these rights may be waived by parents represented by counsel, but only when there is an advisement of rights and a personal waiver by the parent. (Monique T., supra, at p. 1377 [addressing former rule 1449].)
At each of their initial appearances, both mother's counsel and father's counsel waived formal reading of the petition's allegations and advisement of rights on the parents' behalf and the court accepted counsels' waivers. Relying on the decision in Monique T., father now contends the court erred by failing to advise him of his due process rights and further erred by accepting counsel's waiver of his rights without obtaining his express personal waiver and without finding that his waiver had been knowingly and voluntarily made. He contends the error requires reversal of the court's orders.
In Monique T., the mother, through her counsel, waived the reading of the petition at the detention hearing, advice of rights and explanation of the proceedings and submitted the matter on the petition and detention report. The child was detained and placed in foster care. Later, on the same date, the mother, through counsel, submitted the matter for a jurisdictional determination based only on the petition and the detention report. The court did not advise the mother of the rights she would be giving up by submitting the issue of jurisdiction. The court sustained the dependency petition's allegations and ordered the child's continued placement in foster care. (Monique T., supra, 2 Cal.App.4th at pp. 1374-1375.) Because the juvenile court did not explain the mother's due process rights as required, and did not obtain her personal waiver of these rights, the court concluded it was error to accept a waiver of rights based only on counsel's representations. (Id. at p. 1377.) The court nevertheless concluded that the error was harmless, regardless whether the Chapman or Watson standard applied. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836; Monique T., supra, at pp. 1377-1378 [declining to decide which harmless error standard applied in this context].) "The mother was represented, at all stages of the proceeding, by an attorney, who explained her rights to her and who indicated that she desired to waive them. She does not deny this, nor does she claim she was under any kind of pressure to waive the rights. Moreover, the evidence of the mother's inability to care for the child is uncontradicted and the mother does not indicate that she could have offered different or more favorable evidence or witnesses." (Monique T., supra, at p. 1378.)
As in Monique T., here too the error was harmless under either the Chapman or Watson standard. Father was represented at all stages of the proceedings by counsel. Although he submitted the issue of detention on the detention report and petition, father requested a continuance in order to prepare for contested jurisdiction. Because father asserted his right to a trial of the jurisdictional issues, it is reasonable to assume that counsel had informed him of his due process rights to a trial and of his trial rights at a hearing of the contested matter. The jurisdiction hearing was originally scheduled in July and held in September. At some point during this two-month interval father apparently decided not to present any evidence, but only to object to the court finding any of the allegations true.
In any case, father does not claim he was under any pressure to waive his rights or that counsel did not explain his rights. Nor does father suggest that he had more favorable evidence or witnesses to offer at the contested jurisdiction hearing. We thus conclude that error in accepting counsel's waiver, without obtaining father's express personal waiver, was harmless.
II. DID THE JUVENILE COURT ABUSE ITS DISCRETION WHEN IT ORDERED THAT FATHER PARTICIPATE IN A SUBSTANCE ABUSE EVALUATION AND RECOMMENDED TREATMENT AND RANDOM DRUG TESTING?
Father also contends the juvenile court abused its discretion when it ordered that he participate in a substance abuse evaluation and recommended drug treatment, as well as random drug testing, as there was "no evidentiary basis" to support a finding that he has a substance abuse issue. We disagree.
"The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) In reviewing an order for abuse of discretion, we "'must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court's ruling. [Citation.] The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child.' [Citation.]" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) "The trial court is accorded wide discretion and its determination will not be disturbed on appeal absent 'a manifest showing of abuse.' [Citation.]" (Ibid.)
Father relies on In re Sergio C. (1999) 70 Cal.App.4th 957, 960, in which the appellate court reversed the juvenile court order that father submit to random drug testing. In that case, the only evidence of the father's alleged drug use was an unsworn and uncorroborated allegation made by the child's mother, who was a known drug addict. The father flatly denied the allegation. Here, however, in the report prepared for the combined jurisdiction and disposition hearing, the department provided the juvenile court with a summary of father's criminal history dating back to 1989, which included, according to the Fresno County Sheriff's "initial clearance," "Use Under Influence Controlled Substance," "Possess Narcotic Controlled Substance Sale," "Suspend DUI," and "DUI Alcohol .08 Or More."
Thus, while the information provided in the report was incomplete, we have no trouble concluding that the juvenile court's disposition order constituted a reasonable exercise of discretion, rationally tailored to advancing the dependent children's best interests. The order was simply to rule out the possibility father had a substance abuse-related problem, which could be an issue in this case, as evidenced by his past criminal record and current difficult behavior.
On this record, the juvenile court reasonably concluded that a substance abuse evaluation and recommended treatment, along with random drug testing, were necessary to eliminate the conditions that led to the children's dependency status. (§ 362, subd. (a).) We find no abuse of discretion.
DISPOSITION
The juvenile court's jurisdictional and disposition orders are affirmed.