Opinion
C081529 C081913
07-21-2017
In re D.F., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. R.F., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. JD234167)
In this consolidated appeal, appellant R.F., father of minor D.F., appeals from the juvenile court's orders entered at a pretrial hearing (case No. C081529) and the subsequent contested review hearing (case No. C081913). (Welf. & Inst. Code, § 395.) His sole contention is that the juvenile court erred in revoking his pro per status at the pretrial hearing, based on undue delay for the minor. We affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Father and the minor's mother have a history with Child Protective Services dating back to June 2006. On December 20, 2013, Sacramento County Department of Health and Human Services (the County) filed a section 300 petition on behalf of minor D.F. (then age five). The minor was removed from father's custody. Father did not attend the detention hearing.
Father remained absent for the combined jurisdiction/disposition hearing on March 3, 2014. The minor was adjudged a dependant and father was bypassed for services. On or shortly before August 11, 2014, father contacted the County, indicating he was interested in receiving services and visitation with the minor. Father appeared for the scheduled six-month review hearing on September 15, 2014, and the matter was continued due to problems surrounding father's reemergence and his request for services. At the continued hearing, counsel for father informed the court that father had been incarcerated at the time of the combined jurisdiction/disposition hearing. The matter was continued again to November 3, 2014, in order to provide a case plan and appropriate timeline for father.
Father was incarcerated for violating a protective restraining order at the time. He was released on March 28, 2014.
On October 31, 2014, father filed a motion to vacate the jurisdiction order or, alternatively, to return the matter to the disposition phase, based on his earlier incarceration. The motion was denied and the review hearing was continued to January 2015.
The County provided father with a case plan and referrals, but did not seek modification of the disposition orders, which bypassed father for services. At the contested review hearing, the juvenile court found neither mother nor father regularly participated or made substantive progress toward alleviating the causes necessitating removal, "terminated" reunification services for both parents and set a section 366.26 hearing.
Thereafter, father filed an extraordinary writ with this court (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the January 22, 2015 review hearing setting the section 366.26 hearing, contending that, although he came forward and sought services, he remained bypassed and, as such, did not receive court-ordered services as provided by statute. This court issued a peremptory writ of mandate directing the juvenile court to vacate its January 2015 order setting the section 366.26 hearing and hold a new hearing for the purpose of approving and ordering a reunification services case plan for father. (See R.F. v. The Superior Court of Sacramento County; Sacramento County Department of Health and Human Services (Apr. 10, 2015, C078402) [nonpub. opn.].)
On April 17, 2015, new counsel was appointed for father. On May 20, 2015, the court and counsel discussed the case plan for father and set a hearing for June 10, 2015, to receive the case plan from the County.
When the matter came on for hearing on June 10, 2015, father requested to represent himself. He was planning on having his cousin, a lawyer, assist him, but wanted to represent himself in the meantime. The court advised him concerning self-representation, including that he would have to "do your own subpoenaing of witnesses, make appropriate objections and motions during the course of the trial and proceedings." Father signed the required forms and the matter was continued to June 17, 2015, so father could review the file. On June 17, 2015, the juvenile court continued the matter to July 1, 2015, because father claimed his former attorney had not provided him the entire file and he needed to see the court file.
On July 1, 2015, the juvenile court adopted a case plan for father and set a review hearing for December 16, 2015. On November 25, 2015, father filed a "Declaration for Access to Juvenile Case File in Possession of Juvenile Court." On December 16, 2015, father requested a continuance in order to review the social worker's report, which had been filed late, and to subpoena witnesses. The juvenile court granted his request and continued the hearing to December 30, 2015.
On December 30, 2015, father requested the matter be set for a contested hearing. The juvenile court set the pretrial hearing for January 20 and the contested hearing for January 27, 2016. The juvenile court also informed father that he would need to file a list of witnesses by January 15, 2016, and that if he needed the court to order anyone to come, there were forms he was required to present to the court. The County indicated it would have the social worker available and the juvenile court explained to father that he would not, therefore, need to subpoena her.
On January 20, 2016, there was an ongoing trial in the department, necessitating another continuance. The juvenile court noted, however, that it had not received father's witness list. When father responded that he brought his list with him, the juvenile court told him he needed to file and serve it. Father indicated he could do so within a week. The juvenile court reset the pretrial hearing for February 3, 2016, and the review hearing for February 8, 2016.
On February 3, 2016, the court noted an addendum had been received from the County, and a copy was given to father at that time. Father informed the court he had not yet subpoenaed any witnesses for trial, explaining, "I was going to get that to you today, and that information who I wanted to be—," at which point the court interjected, "You'll have to—What you have to do is you have to actually serve them yourself. Okay?" Father stated he did have the forms, asking, "Do I take it over there? Or do I bring it to you to get endorsed or whatever?" The juvenile court informed father he had to get a nonparty to serve the subpoenas, told him how to serve the agency, and added, "If you don't do it properly, then I'm not able to act in order to get them here."
Father then inquired about securing the forms, prompting county counsel to object on the ground he was seeking legal advice. The juvenile court explained it would tell "any other litigant" to look on the court's Web site and find the appropriate juvenile court form. County counsel also objected to the requested continuance. The juvenile court stated that it had not decided whether to continue the hearing, that a new addendum had been filed, and that father's self-representation had not caused undue delay up to that point, although father was "kind of late" in getting subpoenas out with the trial set for less than a week away.
Father then said that the juvenile court had previously asked him to provide a witness list and thought he would be able to bring the witness list to this court hearing and then go about getting them subpoenaed. Father claimed had not understood his obligation to get the subpoenas and serve them. The juvenile court replied, "This is the problem, Mr. F[.], in representing yourself is that—is that a lawyer understands what's required for a pretrial, how to file the witness list and issue statements, how to subpoena people. I can't give you legal advice as Ms. Spinelli [county counsel] pointed out." The juvenile court added, "So you're on your own to know when and how to subpoena people," and unless there was new information in the addendum justifying the need to subpoena someone new, the failure to have subpoenaed the other persons in the previous reports was probably not going to be good cause to continue.
The County represented that it had not mentioned any new individuals in the addendum, except two county employees that it would be willing to produce without subpoena. Father reviewed the addendum report and said he needed to subpoena an individual who was a supervisor at a homeless shelter with respect to the County's claim that he had been homeless since 2009. The juvenile court continued pretrial to February 24, and review hearing to March 2, 2016.
On February 24, 2016, father claimed he tried to subpoena some drug testing files from two businesses and he intended to call the minor as a witness. When the juvenile court asked if father had subpoenaed the minor, father replied that he had been having difficulty with the procedures. He said he had obtained forms at the library, but had been informed by "Mr. Anthony" at "the counter" they were incorrect papers. He then asked Anthony what papers he need to file and Anthony told him he would look it up. Another individual named "Florence" said the subpoenas were a new form, and "[t]hen Anthony stopped looking for me." Father then described being sent back and forth between rooms, apparently by court clerks, in an attempt to secure the proper form.
At this point, the juvenile court interjected, "You know, Mr. F[.], I'm considering reappointing counsel for this reason: That you're having a hard time getting your subpoenas out, knowing what forms. There is very little assistance that the Court can give on the technical aspects of the law. So I'm inclined to reappoint counsel for you to help you." Father interjected, "I've been asking for that but—." The juvenile court replied that he had not been asking, to which father responded that he had asked for that in a different son's case.
Father has 23 children and has had multiple cases proceed through the dependency process. --------
The juvenile court asked if father was in agreement that it should reappoint counsel, and father responded, "I don't want the same counsel." The juvenile court stated that would be determined by the Law Offices of Dale Wilson but, "based on case law, if there's becoming an undue delay in the proceedings due to your representing yourself, the Court can reappoint counsel for you. And this is about the third time we've had pretrial, and there have been issues in getting the subpoenas done. A lawyer does know how to do the subpoenas properly. So I'm going to reappoint counsel for you and appoint the Law Offices of Dale Wilson. Whether they assign Mr. Stirling or not, I can't tell you."
The juvenile court further commented that the court needs to balance factors and that, at this point, father's interest in self-representation balanced against the delays for the minor in the resolution of the matter had now come to the point that the court was finding undue delay for the minor. The court also expressed concern for fairness and due process for father, and that his case may not be presented properly without the assistance of an attorney. Father made no further comment on the subject. The matter was continued to March 2, 2016, whereupon the pretrial hearing was set for March 30, and the contested review hearing for April 5, 2016. Father was represented by attorney Stirling.
On March 2, 2016, father filed his notice of appeal from the February 24, 2016 order (case No. C081529), challenging the revocation of his pro per status.
On April 5, 2016, the juvenile court exercised its discretion, without objection from the parties, to continue the hearing and continue reunification services for six months. On April 18, 2016, father filed his notice of appeal from the April 5, 2016 order (case No. C081913).
DISCUSSION
Father contends the juvenile court abused its discretion when it revoked his pro per status at the February 24, 2016 pretrial hearing. We disagree.
I
Propriety of Father's Appeals
We reject the County's argument that father's appeal from the orders entered at the pretrial hearing revoking his pro per status (case No. C081529) should be dismissed as taken from a nonreviewable interim order. The County claims father's subsequent April 18, 2016 appeal from the April 5, 2016 review hearing order (case No. C081913) was the only appropriate means to address the issue of the pretrial hearing revocation of his pro per status. The County is mistaken. Father's appeal from the February 24, 2016 order is proper means by which to challenge the revocation of his pro per status.
It is well established that "[j]uvenile dependency law does not abide by the normal prohibition against interlocutory appeals [citation]. . . . [A]ll postdispositional orders in juvenile dependency matters are directly appealable without limitation, except for post-1994 orders setting a section 366.26 hearing. (§ 395, § 366.26, subd. (l).)" (In re Edward H. (1996) 43 Cal.App.4th 584, 590; see also In re S.B. (2009) 46 Cal.4th 529, 532.) Thus, appeal from the February 24, 2016 order is the proper means by which to challenge the revocation of father's pro per status because the order was entered at that postdispositional hearing.
The County is simply wrong in arguing the appealable order from which to contest the revocation of his pro per status was the April 5, 2016 order. This court is not dismissing the appeal from the April 18, 2016 notice of appeal (case No. C081913) because it is still timely as to matters occurring at the February 24, 2016 pretrial hearing. The relevant inquiry is whether he timely appealed the February 24, 2016 order—which he must (and did) do. Contrary to the County's argument, had father waited beyond April 25, 2016, to file his appeal, he would have been precluded from raising the issue of the earlier revocation of his pro per status. As the County should be well aware, appeals in dependency matters may not challenge earlier orders for which the time for filing an appeal has passed. An unappealed postdisposition order is final and cannot be attacked on appeal from a later order. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563; § 395; Cal. Rules of Court, rule 8.450.)
The County also claims father acquiesced in the reappointment of counsel. The County bases this on father's response to the juvenile court's indication it was inclined to reappoint counsel, and father had been asking for that, although father said he had done so in another case. Thereafter, when the juvenile court asked if father agreed to reappoint counsel, father simply said he did not want the same counsel and did not further object to the reappointment of counsel. While on this record the County makes a colorable argument of acquiescence, we nevertheless address father's claim on its merits.
II
Revocation of Pro Per Status
While there is no constitutional right to self-representation in dependency proceedings, a parent does have a statutory right to self-representation under section 317. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1082-1084.) The right to self-representation, however, is not absolute. (Id. at p. 1084.) It is balanced against the rights of other parties, such as the child's right to prompt resolution of his custody status. (In re A.M. (2008) 164 Cal.App.4th 914, 924-925.)
"[A] parent's statutory rights, including the right to self-representation, must always be weighed against the child's right to a prompt resolution of the dependency proceeding. The juvenile court must consider this right in deciding whether to accept a parent's waiver of counsel and request for self-representation. Thus, the juvenile court has discretion to deny the request for self-representation when it is reasonably probable that granting the request would impair the child's right to a prompt resolution of custody status or unduly disrupt the proceedings. A parent's disruptive behavior may be sufficient to deny a request for self-representation, but it is not necessary. If it is reasonably probable that granting a parent's request for self-representation will lead to undue delay in the proceedings that would impair the child's right to a prompt resolution of custody, the juvenile court has discretion to deny the request regardless whether the parent has ever behaved disruptively." (In re A.M., supra, 164 Cal.App.4th at pp. 925-926, citing D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 513, italics omitted.)
Here, the juvenile court reasonably found father's self-representation was unduly delaying proceedings to the detriment of the minor's right to prompt resolution of the already protracted dependency proceedings which had commenced over two years earlier in December 2013. Although the continuances of the pretrial and review hearings were not due solely to father's failure to subpoena his witnesses, the ongoing delay at the February 24, 2016 hearing, was caused by that failure. Father had been told eight months earlier, when he was granted pro per status, that he would have to subpoena his own witnesses. Additionally, the subject of subpoenaing father's witnesses came up at several of the continuances. The juvenile court properly noted it could not act as his counsel or give legal advice. Thus, father certainly had ample notice he would have to figure out on his own how to effectuate a proper subpoena.
Even though father was granted a continuance in order to subpoena witnesses in December, he still had not done so four continuances and two months later. He still did not even have the necessary forms. He also failed to comply with the procedures known to him for filing and serving his witness list.
The right to self-representation may be terminated where a litigant is unable to abide by the rules of procedure and courtroom protocol. (People v. Rudd (1998) 63 Cal.App.4th 620, 632.) Here, the review hearing was already long past due and father was still unable to secure the presence of his witnesses. It was not error for the juvenile court to terminate his pro per status under these circumstances.
We also reject father's argument the juvenile court should have opted to force him to proceed without witnesses rather than reappoint counsel. "Because a parent's right to self-representation in a juvenile dependency proceeding is statutory, rather than constitutional, our review of the assertion of the right to self-representation is evaluated under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. [Citation]." (In re A.M., supra, 164 Cal.App.4th at p. 928.) Father makes no attempt to show, and it is doubtful he could, that he would have fared better with no counsel and no witnesses, compared to the reappointment of counsel.
In fact, given the ultimate resolution of a six-month continuance of the hearing and reunification services, father cannot show the requisite prejudice of the reappointment of counsel at all, not to mention his knowing and willing acquiescence in, if not actual agreement to, reappointment of counsel, other than formerly appointed counsel.
DISPOSITION
The orders of the juvenile court are affirmed.
NICHOLSON, Acting P. J. We concur: ROBIE, J. HOCH, J.