Opinion
A155450
01-21-2020
In re K.P. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERICES BUREAU, Plaintiff and Respondent, v. A.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J17-00913, J17-00914)
Mother appeals orders of the juvenile court assuming jurisdiction over two of her children, removing them from her care and placing them in foster homes. Mother's appellate briefing thoroughly fails to comply with the rules of court. While the matter could be disposed of on this ground, because of the significant interests of the children and mother in these proceedings, we have attempted to respond to mother's concerns insofar as we are able to understand them. Mother appears to challenge the children's initial detention, the sufficiency of the evidence in support of the court's jurisdictional findings, and the sufficiency of her representation through the jurisdictional hearing. It does not appear that mother directly challenges the dispositional order. As discussed below, we find no error and thus shall affirm the court's orders.
A third child, T.P., was detained and removed from his mother's care at the same time as his siblings. T.P., however, was returned to his mother's care during the course of the jurisdictional hearing and his petition was dismissed following the dispositional hearing.
Background
On August 17, 2017, the Contra Costa County Children and Family Services Bureau (the bureau) filed petitions pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b)(1), (c), and (j). The petitions allege, among other things, that on August 11, mother repeatedly hit then 12-year-old H.P. with a metal rod resulting in injuries to his hand and arm; that mother has repeatedly hit H.P. and then 7-year-old K.P. with a paddle, spoon or her hand; that mother has repeatedly left the children at home with caretakers for weeks at a time with no provisions for food or transportation and no working telephone; and that on August 14, during a social worker's visit, there was a strong odor of urine in the home, piles of dirty dishes in the kitchen, the smell of must in the laundry room and excessive clutter and pet hair throughout the home. The petitions indicate that as of August 15 the children had been detained and placed in a foster home.
All statutory references are to the Welfare and Institutions Code.
The detention report indicates that on August 14, the bureau received two calls expressing concern that H.P had been physically abused by his mother and that all three siblings were being neglected by their mother. That day, the social worker made an unannounced visit to the home to investigate. The social worker found the home as described in the petition and spoke with H.P. who confirmed the reported abuse. Both H.P. and K.P. reported feeling unsafe in their home. The social worker spoke to the children's grandmother who confirmed that mother had left the children in her care without food, transportation, or a working phone. The following day, the social worker returned to the family home with an Orinda police officer. The officer assessed the home and interviewed the children and agreed with the social worker's determination that the children should be detained and removed form the home. Mother was informed that the detention hearing would be held on August 18.
Following the hearing on August 18 the court issued a detention order. The court set a "de novo" detention hearing for August 21 to allow mother an opportunity to retain counsel. Mother was unable to retain counsel by August 21 and a second detention order was issued. Mother ultimately retained counsel in advance of the jurisdictional hearing.
Mother's request for appointed counsel was denied at the August 18 hearing based on her lack of indigency.
The jurisdictional hearing, originally set for September 8, was ultimately commenced on October 27, 2017. Testimony was taken on several days over the course of approximately four months. On October 27, H.P. testified about the incident that had occurred on August 11 while he was trying to give his pets a bath. He confirmed that his mother backed him into the bathtub and beat him with a metal rod. T.P. testified that he heard his mother beating H.P., but claimed she had used a wooden spoon. A month later, however, on cross-examination, T.P. denied seeing or hearing his mother beating H.P. and claimed that he did not believe H.P. when he said that he had been beaten. T.P. indicated that he badly wanted to return home. The court acknowledged credibility issues with T.P.'s testimony but agreed that he could be returned home. When his cross-examination continued on December 5, T.P. acknowledged that he had reported to the social workers that on August 11 his mother hit H.P. with a wooden spoon, but claimed that H.P. and the neighbor had pressured him to do so. K.P. did not testify until February 16, 2018. She confirmed that she saw her mother back H.P. into the bathtub and hit him with "the paddle" during the August 11 incident.
Mother testified and disputed all of the allegations. With respect to the August 11 incident, she denied ever hitting H.P. She explained that she entered the bathroom when she heard a thud and found H.P. lying on the floor. He had fallen while trying to wash his cat and had hit his shoulder and arm on the bathtub faucet. Mother also called her employee, Paul Sumner, as a witness, who testified that H.P. had lied to him on various occasions.
On February 26, 2018, mother's attorney sought to be relieved as counsel. On March 2, the court denied the motion as untimely.
On March 8, the court sustained the allegations of the petition. The court found the testimony of H.P. and K.P credible and testimony by mother, T.P. and Sumner not credible.
On March 22, mother filed a substitution of counsel. Mother's new attorney represented her at the contested dispositional hearing. On August 14, 2018, the court issued a dispositional order removing H.P. and K.P. from mother's care and continuing their placement in foster care. The court ordered visitation and reunification services for mother. Mother timely filed a notice of appeal.
Mother's notice of appeal was signed by the attorney who represented her at the dispositional hearing. Following the denial of her request for appointed counsel on appeal, mother filed a request for an extension of time, indicating that she was trying to retain counsel to represent her on appeal. Although it appears mother initially retained counsel, in June 2019 she filed a substitution of counsel indicating that she was proceeding on appeal in propria persona. She filed her opening brief shortly thereafter. After briefing was completed, mother retained counsel who represented her at oral argument.
Discussion
1. The children were properly detained.
Mother argues the children were improperly detained without a warrant in violation of section 340, subdivision (b), and that the hearing on temporary detention was improperly delayed until 23 days after the children were removed from her home. Section 340, subdivision (b) authorizes a juvenile court to issue a "protective custody warrant . . . if the court finds probable cause to support all of the following: [¶] (1) The child is a person described in Section 300. [¶] (2) There is a substantial danger to the safety or to the physical or emotional health of the child. [¶] (3) There are no reasonable means to protect the child's safety or physical health without removal." Subdivision (d)(2) of section 340 provides, however, "Nothing in this section is intended to limit a social worker from taking into and maintaining temporary custody of a minor pursuant to paragraph (2) of subdivision (a) of Section 306." Section 306, subdivision (a)(2) authorizes a social worker to "[t]ake into and maintain temporary custody of, without a warrant, a child . . . who the social worker has reasonable cause to believe is a person described in subdivision (b) or (g) of Section 300, and the social worker has reasonable cause to believe that the child has an immediate need for medical care or is in immediate danger of physical or sexual abuse or the physical environment poses an immediate threat to the child's health or safety."
Contrary to mother's arguments, the record establishes the social worker's reasonable concern that the children were in immediate danger of physical abuse and that the condition of the home posed an immediate threat to their health. At the time of their detention, two of the three children confirmed the history of physical abuse and both the social worker and an Orinda police officer confirmed that the condition of the house warranted the children's removal.
Mother is also incorrect that the detention hearing was not held for almost 23 days. The children were temporarily detained on August 15, the petition was filed on August 17 and the court issued a detention order following a hearing on August 18, all well within the statutory timelines. (§ 313, subd. (a) ["Whenever a minor is taken into custody . . . , such minor shall be released within 48 hours after having been taken into custody, excluding nonjudicial days, unless within said period of time a petition to declare him a dependent child has been filed pursuant to the provisions of this chapter."]; § 315 [detention hearing "shall be held as soon as possible, but not later than the expiration of the next judicial day after a petition to declare the child a dependent child has been filed"].)
2. Substantial evidence supports the jurisdictional findings.
Under section 300, subdivision (a), a child may be adjudged a dependent of the court if the child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. For purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm." Under section 300, subdivision (j), a child may be adjudged a dependent of the court if "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
The record contains ample evidence in support of the court's jurisdictional finding that mother physically abused H.P. on August 11. Each child confirmed that mother struck H.P. The record contained photographs of the bruises that remained days later and the social worker's report indicates that she spoke with a neighbor who confirmed that H.P. reported the abuse to her.
Mother's claim that the children were coerced into testifying falsely is not persuasive. Mother cites sections of the reporter's transcript to support her claim that the children were pressured to lie, but the trial judge heard the testimony and had the opportunity to weigh the credibility of the witnesses. At the conclusion of the jurisdictional hearing, citing much the same testimony, mother asked the court to strike H.P.'s testimony on the ground that it had been coerced. The court denied mother's request, stating that it found H.P. "to be very, very credible." The court did not find "that in any way he was coerced" or that "his testimony was involuntary."
Mother's references to statements made after entry of the jurisdictional order are not properly before us on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 405 ["[T]he general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration' " applies in dependency proceedings.].)
At oral argument, mother's counsel argued that the court improperly excluded evidence that would have demonstrated the children were not testifying truthfully, thereby denying mother a fair trial. Counsel acknowledged that the individual evidentiary rulings were not identified or challenged by mother in her written briefing. While we might justifiably disregard the belated argument, we nonetheless consider the examples of the court's alleged improper evidentiary rulings cited by counsel. The questions to which objections were sustained were plainly irrelevant or speculative. Much like mother's briefing, counsel fails to differentiate between objections made to evidence proffered at the jurisdictional hearing and evidence proffered at the dispositional hearing. And in all events, none of the rulings resulted in the exclusion of evidence concerning matters not amply covered by other evidence. When the court ruled on mother's motion to strike H.P.'s testimony, it had before it T.P.'s extensive testimony that a neighbor told him and H.P. to lie at trial and H.P.'s testimony concerning his interviews at the Children's Interview Center. The examination probed whether he was told by the neighbor, foster parent or anyone else what to say at the interview, what he meant when he said he had made a "mistake" and what he meant when he said that he did not believe there were consequences for lying. The court's rulings neither evidenced bias nor deprived mother of a fair trial.
Mother also questions whether the conditions of her home were sufficiently unsanitary to support jurisdiction under subdivision (b), but we need not evaluate that evidence because the substantial evidence of physical abuse is sufficient to support jurisdiction under subdivisions (a) and (j). (In re I.J. (2013) 56 Cal.4th 766, 773 [" 'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' "].)
Mother contends the court erred in excluding evidence, including pest reports and the children's medical records, which she asserts demonstrated that the children were not neglected. However, as best we can tell from the confusing condition of the papers mother has submitted, this evidence was not offered at the jurisdictional hearing but was offered at the dispositional hearing. To the extent some of it was excluded, the court reasonably found that the evidence was not relevant to the issues at disposition. In any event, none of this evidence is relevant to the finding that mother physically abused H.P. on August 11.
In short, substantial evidence supports the court's exercise of jurisdiction in this case.
3. The court did not err in refusing the request by mother's counsel to withdraw.
As noted above, mother did not qualify for an appointed attorney and retained an attorney prior to the jurisdictional hearing. As detailed in her opening brief on appeal, that relationship appears to have broken down over the four month span of the hearings. When counsel sought to withdraw, the court denied the request. The court found that it "would be an undue burden on the children" and "would not be in the children's best interest" to grant the motion because the contested hearing had already gone on "forever." On appeal, mother contends she was denied her right to represent herself.
A parent in dependency proceedings has a right to discharge her retained attorney with or without cause. (In re V.V. (2010) 188 Cal.App.4th 392, 399 [procedure for discharging appointed counsel and appointing new counsel for an indigent defendant is inapplicable to retained counsel.].) However, a nonindigent parent's right to discharge her retained counsel " 'is not absolute.' " (Ibid.) In criminal cases, " '[t]he trial court, in its discretion, may deny such a motion if discharge will result in "significant prejudice" to the defendant [citation], or if it is not timely, i.e., if it will result in "disruption of the orderly processes of justice." ' " (Ibid.) In dependency proceedings, under section 352, the court must " 'give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.' " (Ibid.; In re A.M. (2008) 164 Cal.App.4th 914, 925 [In dependency proceedings, a parent's right to self-representation "must always be weighed against the child's right to a prompt resolution of the dependency proceeding."].) Unlike a criminal defendant, a parent's right to self-representation is "statutory only; a parent in a juvenile dependency case does not have a constitutional right to self-representation." (In re A.M. supra, at p. 923; In re Angel W. (2001) 93 Cal.App.4th 1074, 1083.) Accordingly, the erroneous denial of a motion for self-representation is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836. (In re A.M., supra, at p. 928.) Under that standard, we ascertain whether it appears reasonably probable mother would have obtained a more favorable result if the juvenile court had granted her request for self-representation.
Here, the jurisdictional hearing had been ongoing for months and was nearing its conclusion when mother requested to discharge her retained counsel and represent herself. Her request for self-representation was untimely. In denying the request, the court stated that granting the motion "would be an undue burden on the children" and "would not be in the children's best interest" because the contested hearing had already gone on "forever." The court did not state that it was concerned that granting mother's motion would require a continuance, which was not necessarily supported by the record because mother did not expressly ask for a continuance. (See People v. Rogers (1995) 37 Cal.App.4th 1053, 1057 [court abused discretion in denying untimely request for self-representation where defendant "did not request a continuance and was prepared to proceed with the trial" and there was no indication that defendant "sought to delay the proceedings or that his self-representation would obstruct the orderly administration of justice."].) However, mother had disrupted the proceedings on numerous occasions. The court most likely was concerned that the matter could not proceed at all if mother was not represented by counsel. (See In re Angel W., supra, 93 Cal.App.4th at p. 1085 ["Only 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 may the court exercise its discretion to deny self-representation."].) In any event, any possible error in this regard undoubtedly was harmless.
By the time mother requested to represent herself, she was the last remaining witness. She testified fully and the court found her testimony completely lacking in credibility. Mother faults her attorney for failing to "press" certain motions but, as discussed above, in her closing argument mother's counsel reasserted her motion to strike H.P.'s testimony and the court denied the motion on the merits. Nothing in the record suggests that mother was precluded by her attorney from presenting any relevant evidence or argument. The evidence of physical abuse, though disputed, was strong and the court found it compelling. On this record, there is no possibility mother would have obtained a better result had she represented herself.
Accordingly, we shall affirm the jurisdictional and dispositional orders.
As noted above, mother does not appear to directly challenge the dispositional order. Rather, much of her briefing seems directed to her claim that the children should be returned to her custody because she has completed her case plan. Mother's case plan, however, was adopted in the dispositional order and any progress towards completion of that plan necessarily occurred after its entry. As such, it is beyond the scope of this appeal.
Disposition
The jurisdictional and dispositional orders are affirmed.
POLLAK, P. J. WE CONCUR: TUCHER, J.
BROWN, J.