Opinion
E033486.
7-29-2003
In re ANTHONY O., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. DANIEL O., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. William C. Katzenstein, County Counsel, and Julie A. Koons, Deputy County Counsel, for Plaintiff and Respondent. Lori A. Fields, under appointment by the Court of Appeal, for Minor.
Daniel O. appeals from an order terminating juvenile dependency jurisdiction over his 11-year-old son, Anthony O., awarding custody to Anthonys mother, and allowing Daniel supervised visitation. He contends the juvenile court erred by:
1. Failing to allow Daniel to represent himself at the hearing.
2. Failing to continue the hearing.
3. Failing to give Daniel due notice of the hearing.
We find no error. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Daniel O. and Renee G. are the parents of Anthony O.
As of March 2002, Anthony was living with Daniel. On March 7, 2002, the police discovered a methamphetamine laboratory in the garage which Daniel and Anthony were using as a bedroom. They arrested Daniel. As a result, on March 11, 2002, the Orange County Social Services Agency filed a dependency petition regarding Anthony. The Orange County Juvenile Court sustained the petition, removed Anthony from Daniels custody, and placed him with Renee. Based on Renees residence, it transferred the case to Riverside County.
On January 6, 2003, at a six-month review hearing, Daniel, who was still incarcerated, was not personally present. The juvenile court ordered: " . . . Im conditionally appointing Ms. Mayumi Waddy to contact father to ascertain whether or not he is requesting counsel and to represent his legal interests in this matter." Waddy requested a continuance so she could have Daniel transported from jail. The juvenile court observed that Daniel was not necessarily entitled to be present. (See Pen. Code, § 2625, subd. (d).) It continued the hearing to February 3, however, to give Waddy time to consult with him.
On February 3, 2003, at the continued review hearing, Daniel, once again, was not personally present. Waddy reported: " . . . I have previously sent a transportation order for father. Orange County jail where father is currently incarcerated will not transport father. I did send an investigator out to speak to him. At this time, . . . Im not sure if he consents to my representation of him." She also reported: "He wants sole custody of his son. He did mention to the investigator that he was considering representing himself pro per because he thinks that nobody is paying attention to his request to be present."
The juvenile court responded: "Im going to appoint you to represent father. Its not a conditional appointment at this time. I think the fathers interest here is one of an opportunity to be heard. At this particular hearing pursuant to Penal Code section 2625 he does not have an absolute right to be present. He does have appointed counsel to represent his interest. He has not unequivocally indicated that he does not want counsel." It concluded: "It does appear we can proceed today, and the court does intend to proceed."
The juvenile court then noted: "I didnt hear a request for a continuance." Waddy replied, "No, your Honor."
The juvenile court found that the conditions which justified the initial assumption of jurisdiction no longer existed. It therefore terminated its jurisdiction. (See Welf. & Inst. Code, § 364, subd. (c).) It issued related custody and visitation orders — sometimes called "exit orders" (see Welf. & Inst. Code, § 362.4) — giving Renee sole physical custody of Anthony and allowing Daniel supervised visitation.
II
FAILURE TO ALLOW DANIEL TO REPRESENT HIMSELF
Daniel contends the juvenile court erred by failing to allow him to represent himself.
There is no federal or state constitutional right to self-representation in a juvenile dependency proceeding. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1080-1082; In re Justin L. (1987) 188 Cal. App. 3d 1068, 1073, 1077, 233 Cal. Rptr. 632.) Any such right can only be statutory.
The relevant statute is Welfare and Institutions Code section 317, which provides, as pertinent here:
"(a) When it appears to the court that a parent . . . of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section.
"(b) When it appears to the court that a parent . . . of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section."
These provisions mean that the juvenile court is not required to appoint counsel for an indigent parent, unless, among other things, the parent communicates that he or she wants counsel. (In re Angel W., supra, 93 Cal.App.4th at p. 1083; In re Ebony W. (1996) 47 Cal.App.4th 1643, 1647-1648.) The juvenile court, however, is not prohibited from appointing counsel for an indigent parent, other than when the parent has knowingly and intelligently waived counsel.
Daniel seems to think he did waive counsel. Not so. According to the record, "he was considering representing himself . . . ." (Italics added.) This necessarily means he had not yet decided whether to represent himself. Waddy also noted, " . . . Im not sure if [Daniel] consents to my representation of him." His consent, however, was not required. She could be appointed, and she could represent him, unless and until he affirmatively waived counsel.
Even assuming that Daniel had a constitutional right to self-representation, by analogy to the constitutional right to self-representation in criminal cases (see generally Faretta v. California (1975) 422 U.S. 806 [95 S. Ct. 2525, 45 L. Ed. 2d 562]), any invocation of that right must be unequivocal. (People v. Barnett (1998) 17 Cal.4th 1044, 1086, 954 P.2d 384.) Here, the juvenile court found: "[Daniel] has not unequivocally indicated that he does not want counsel." This finding was manifestly correct.
Finally — and alternatively — we note that Daniel has not shown that the supposed error was prejudicial. Precisely because the right to waive counsel in a dependency proceeding is purely statutory, the state constitutional standard of harmless error applies. (Cal. Const., art. VI, § 13; In re Angel W., supra, 93 Cal.App.4th at p. 1085; In re Justin L., supra, 188 Cal. App. 3d at p. 1077.) "Thus the parent must demonstrate that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]" (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668, quoting People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Daniel boldly declares that he could have obtained a more favorable outcome; he fails to tell us, however, just what he thinks that outcome might have been. His stated goal was to obtain custody of Anthony. However, he was incarcerated. Apparently, he still is. Thus, it is simply inconceivable that he could have obtained custody.
We conclude that the trial court did not err by appointing counsel for Daniel and allowing her to represent him at the hearing. Even if it did err, however, the error was harmless.
III
FAILURE TO GRANT A CONTINUANCE
Next, Daniel contends the juvenile court erred by failing to grant him a "brief continuance . . . ."
Neither Daniel nor his appointed counsel, however, ever requested a continuance. To the contrary, his counsel affirmatively stated that she was not requesting a continuance. " . . . [A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.]" (In re Aaron B . (1996) 46 Cal.App.4th 843, 846, quoting In re Riva M. (1991) 235 Cal. App. 3d 403, 411-412, 286 Cal. Rptr. 592.) Also, Daniel and his counsel simply failed to obtain any ruling by the juvenile court which we could review. (See People v. Cunningham (2001) 25 Cal.4th 926, 984; People v. Bolin (1998) 18 Cal.4th 297, 312, 956 P.2d 374.)
In his reply brief, Daniel urges us not to find a waiver. He relies, however, on cases dealing with the "waiver" that results from failure to file a timely appeal and/or extraordinary writ petition. That type of waiver is governed by very different and specialized principles not applicable here. (See generally In re S.D. (2002) 99 Cal.App.4th 1068, 1079-1082; In re Jessica G. (2001) 93 Cal.App.4th 1180, 1190; In re Jesse W. (2001) 93 Cal.App.4th 349, 355-361; In re Janee J. (1999) 74 Cal.App.4th 198, 206-209; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149-1160.)
We readily acknowledge that no type of waiver is enforceable if its very enforcement would violate due process. (See In re Janee J., supra, 74 Cal.App.4th at p. 208.) Daniel, however, does not identify any way in which enforcing his waiver here would violate due process. He had an opportunity to be heard — through his appointed counsel. (We will discuss his claim that he lacked notice in part IV, post.) He does not assert that his appointed counsel rendered ineffective assistance in any respect. Accordingly, holding him bound by his counsels failure to request a continuance does not offend due process.
Finally, even absent a waiver, precisely because Daniel never requested a continuance, the record contains no showing of good cause for one. (See Welf. & Inst. Code, § 352, subd. (a).) Accordingly, we cannot say the trial court erred; and, even assuming it did err, we cannot say the error was prejudicial.
IV
NOTICE OF THE REVIEW HEARING
Lastly, Daniel contends he was not given adequate notice that the juvenile court might issue exit orders at the review hearing.
This claim, too, was waived by the failure of Daniels counsel to raise it below. (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152.) Even a lack of notice which would otherwise violate due process can be waived by failure to raise it below, as long as there has been an opportunity to do so. (In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1491; In re Grayden N. (1997) 55 Cal.App.4th 598, 605; see People v. Toro (1989) 47 Cal.3d 966, 975-976, 254 Cal. Rptr. 811, 766 P.2d 577, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3, 957 P.2d 928.)
Alternatively, this claim lacks merit.
Daniel does not appear to contend that he was not given notice of the review hearing itself — and for good reason, as he was given such notice. On January 14, written notice of the February 3 hearing was served on him by first class mail.
Rather, Daniel contends that he was not given notice that the juvenile court might issue exit orders at the review hearing. He relies entirely on In re Kelley L. (1998) 64 Cal.App.4th 1279. There, the juvenile court ordered its dependency jurisdiction terminated but stayed the termination because there were pending appeals from previous orders. (Id. at pp. 1281-1282.) The minors moved to lift the stay. (Id. at p. 1282.) The father was not given notice of the hearing at which the juvenile court granted the motion (ibid.), nor, apparently, was he given notice of any of several subsequent hearings at which it repeatedly refused to reinstate the stay. (See id. at pp. 1282-1283.) At the last such hearing, it entered exit orders. (Id. at p. 1283.)
The appellate court held that the father was not given the statutorily required notice of the final hearing. (In re Kelley L., supra, 64 Cal.App.4th at pp. 1284-1285.) The social services agency argued that he was not entitled to notice of a hearing to lift the stay. The court held, however, that he was entitled to notice because the termination order was modified by the entry of exit orders. It relied on Welfare and Institutions Code sections 386 and 388, which require that a parent be given notice of hearing before the juvenile court changes, modifies, or sets aside any previous order. (Id . at p. 1284.)
Daniel was certainly entitled to notice of the review hearing. (Welf. & Inst. Code, § 293.) We do not believe, however, that he was entitled to any particularized notice or warning that the juvenile court might enter exit orders at that hearing. Here, unlike in Kelley L., the juvenile court terminated its jurisdiction and entered exit orders at a six-month review hearing. At such a hearing, if, as here, the child has been placed with a previously noncustodial parent, the court must determine whether continued supervision is necessary. If not, it must terminate jurisdiction. (Welf. & Inst. Code, §§ 361.2, subd. (b)(1), 366.21, subd. (e).) Moreover, if it terminates jurisdiction, it may enter exit orders. (Welf. & Inst. Code, § 362.4.) Welfare and Institutions Code sections 386 and 388, on which Kelley L. relied, simply were not involved.
Separately — and, again, alternatively — Daniel was, in fact, given notice that the juvenile court might issue exit orders. He asserts that the social workers report did not recommend any exit orders. That is incorrect. The social worker recommended that jurisdiction be terminated and that Renee be given custody. An order determining custody upon the termination of jurisdiction is, by definition, an exit order. (Welf. & Inst. Code, § 362.4.)
If Daniel is arguing that he was not specifically given notice that the juvenile court might issue visitation orders, we disagree. Visitation is an aspect of custody. By recommending that custody be given to Renee, the social worker was placing visitation at issue. Indeed, the very lack of any recommendation as to visitation implied a recommendation that Daniel be denied visitation. Daniel can hardly complain that he obtained more visitation than the social worker was recommending.
We conclude that Daniel was given due notice of the review hearing, including due notice of the possibility that the juvenile court might issue exit orders at that hearing.
V
DISPOSITION
The order appealed from is affirmed.
We concur: RAMIREZ P.J., GAUT J. --------------- Notes: The statute also requires that the social services agency have placed or be seeking to place the child in "out-of-home care." It could be argued that, because Anthony had been living with Daniel, his placement with Renee was an "out-of-home" placement. On the other hand, it could equally be argued that, because Renee was Anthonys mother, and/or because it does not appear that there had been any court order removing him from her custody, it was not an "out-of-home" placement. Rather than decide this issue, we will assume that Anthony was in "out-of-home care."