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In re B.O.

California Court of Appeals, Third District, Glenn
Apr 14, 2009
No. C059076 (Cal. Ct. App. Apr. 14, 2009)

Opinion


In re B.O. et al., Persons Coming Under the Juvenile Court Law. GLENN COUNTY HUMAN RESOURCES AGENCY, Plaintiff and Respondent, v. MICHELLE O., Defendant and Appellant. C059076 California Court of Appeal, Third District, Glenn April 14, 2009

NOT TO BE PUBLISHED

Super. Ct. Nos. 06JP00256 & 06JP00257

SCOTLAND, P. J.

Appellant, mother of B.O. and M.O. (the minors), appeals from juvenile court orders at a review hearing, continuing the minors as dependent children in appellant’s custody pursuant to a family maintenance plan supervised by Glenn County Human Resources Agency (HRA). (Welf. & Inst. Code, §§ 364, 395; further section references are to this code unless otherwise specified.) She claims the court abused its discretion in denying a motion to continue the review hearing and in denying her request to have the minors testify at the hearing. We find no abuse of discretion and, in any event, conclude that appellant was not prejudiced by the court’s rulings. Thus, we will affirm the orders.

FACTS AND PROCEDURAL BACKGROUND

Juvenile dependency proceedings began in Santa Clara County in November 2005. Among other things, the dependency petitions alleged that the minors had suffered, or were at risk of suffering, serious physical harm or illness as a result of appellant’s failure or inability to adequately supervise or protect the minors (§ 300, subd. (b)) because appellant had mental or emotional problems, had “displayed disruptive behavior in the presence of her children,” had engaged in “irrational, demanding, and threatening behavior against the staff and responding police officer at [her son’s] school, result[ing] in the school filing a restraining order against [appellant],” had been arrested and jailed for a period of time, and had “no appropriate caretakers available to supervise the [minors] while [appellant was] in custody.” The Santa Clara juvenile court sustained amended petitions and adjudicated the minors to be dependent children of the court.

In September 2006, the proceedings were transferred to Glenn County, where the juvenile court appointed counsel for appellant. She later retained counsel to represent her.

On May 17, 2007, the juvenile court ordered the minors returned to appellant but continued them as dependent children and directed appellant to comply with a family maintenance services case plan. Thereafter, appellant complied only minimally with her case plan requirements, but she was not using illegal drugs and she was achieving educational goals she had set for herself. Thus, HRA recommended the continuation of family maintenance services.

At the review hearing on April 17, 2008, which is the subject of this appeal, appellant’s attorney, Roland Bennett, failed to appear. Counsel for the minors’ father conveyed to the juvenile court that Bennett had “asked [counsel] to set this for contested hearing.” Observing that the parties and counsel had been given notice that the review hearing was scheduled for April 17, the court denied the request to reschedule the matter, i.e., the request for a continuance. Appellant then told the court: “Well, with or without Mr. Bennett I am willing to go forward [with the review hearing on April 17].” Thus, while the other parties submitted the matter on the social worker’s report, the court gave appellant the opportunity to present evidence on her own behalf.

Appellant testified, disputed statements contained in the social worker’s report, answered questions from the court, and submitted to cross-examination. When she sought to call the minors to testify, their counsel objected, stating: “[The minors] have been afraid, and they look to their mother [appellant] before they will talk to me. And then they just shake their head[s]. [¶] So I have some concerns about what the children have been coached to say or not to say.” Although appellant said she was “willing to step out of the room so [her] children could tell the truth,” or the court could “take them into... chambers and talk to them,” the court sustained the objection and did not permit the children to testify.

Rejecting appellant’s request to terminate the dependency, the juvenile court continued the dependency under its existing terms.

DISCUSSION

I

Asserting section 364 “specifies that a parent has a right to a contested hearing when the recommendation [of the agency] is continued family maintenance,” appellant claims the juvenile court erred in denying her absent attorney’s request (made through father’s counsel) for a contested hearing on another date.

Section 364 provides that when a juvenile court adjudicates a minor to be a dependent child of the court and does not remove the minor from parental custody, the court must continue the matter “to a specific future date not to exceed six months after the date of the original dispositional hearing.” (§ 364, subd. (a).) The purpose of the section 364 hearing is for the court to review the services provided to the family and the progress made by the family in eliminating the conditions or factors that required court supervision. (§ 364, subd. (b).) At least 10 days prior to the section 364 hearing, the social worker shall file a supplemental report providing said information and making a “recommendation regarding the necessity of continued supervision.” (Ibid.) “After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary.” (§ 364, subd. (c).) If the juvenile court retains jurisdiction over the minor, “it shall continue the matter to a specific date, not more than six months from the time of the hearing, at which point the court shall again follow the procedure specified in subdivision (c)” for another review hearing. (§ 364, subd. (d).)

Appellant was afforded the right to a contested hearing allowed by section 364, but her attorney failed to appear at the scheduled hearing on April 17, 2008. Unable to explain why trial counsel “was not there,” her appellate counsel states “it appears that setting an initial hearing for contested was the routine practice in [Glenn County].” If by this she means the practice in Glenn County was to schedule a section 364 hearing but then to routinely continue it if counsel wished to present evidence or otherwise contest the social worker’s recommendation, the record does not support such speculation. Indeed, such a practice would be inconsistent with the plain language of section 364, quoted above, which requires the juvenile court, at the dispositional hearing, to schedule a section 364 hearing on “a specific future date not to exceed six months after the date of the original dispositional hearing” (§ 364, subd. (a)), to take evidence on that date, and to determine whether continued supervision is necessary. (§ 364, subd. (c).)

Of course, a juvenile court has the discretion to continue a section 364 hearing, but a continuance may be granted “only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.” (§ 352, subd. (a).)

Here, there was no showing of good cause for a continuance. Contrary to appellant’s claim, the unexplained absence of her retained attorney was not “good cause to continue the case where the children are living at home.” To hold otherwise would mean that an attorney for a party, not the court, would be in control of a juvenile dependency proceeding. The statutory scheme does not permit such a result. Absent a showing of good cause to continue the section 364 hearing, the court had a duty to hold the hearing on the specific date on which it was scheduled. The unexplained absence of appellant’s retained attorney did not dictate otherwise.

Appellant asserts her statutory right to counsel (§ 317) was violated by the juvenile court’s denial of the request to reschedule the hearing. Not so. The court appointed an attorney to represent appellant, but she later retained counsel of her choosing. Thus, appellant received her statutory right to counsel. Absent a showing of good cause required by section 352, subdivision (a), which was not satisfied by the unexplained absence of appellant’s retained attorney at the scheduled section 364 hearing, the court properly refused to continue the hearing even though this meant that it would proceed in the absence of appellant’s attorney.

In light of our conclusion, we need not address appellant’s claim that her election to go forward with the hearing without counsel was not a knowing and intelligent waiver of the right to an attorney.

Appellant cites no authority, and we have found none, for her proposition that the juvenile court “should have asked her if she needed new counsel appointed to her under Welfare and Institutions Code section 317.”

By failing to raise the issue in the juvenile court, appellant has forfeited her claim that a continuance was required because HRA provided her with the supplemental report for the section 364 hearing only 9 days, not the statutorily required 10 days (§ 364, sub. (b)) prior to the hearing. (See In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

In any event, as we will explain, appellant was not prejudiced by the denial of the request for a continuance. (See In re Ronald R. (1995) 37 Cal.App.4th 1186, 1195 [an alleged violation of a parent’s right to counsel in dependency proceedings does not require reversal of the judgment unless it is reasonably probable that a result more favorable to the parent would have been reached in the absence of the alleged error].)

Appellant was permitted to introduce evidence at the hearing, other than testimony of the minors (which we will address in Part II, post), and state to the juvenile court why she believed that court supervision over the minors should be terminated. Evidence before the court unquestionably indicated terminating jurisdiction would not be in the minors’ best interests. This is so because problems that led to jurisdiction over the minors had not abated. Appellant continued to exhibit “significant anger issues” and to have “difficulty dealing with her negative emotions and impulses.” Indeed, “people from both schools where her children attend [had] expressed their concerns for the well being of the children.” Due to her “anger issues,” the schools were required to “prohibit [her from] show[ing] up at the premises anytime she desires,” but she had “refused to follow the school and district school safety procedures,” had grabbed a five-year-old student by the neck, and had been asked “to leave and not to talk to any other student without permission.”

On this record, it is not reasonably probable that, had her counsel been present at a contested hearing, appellant would have obtained the outcome she sought -- termination of the dependency -- or even some less favorable result. (Cf. In re Justin L. (1987) 188 Cal.App.3d 1068, 1077-1078.) Her position was that she had complied with her case plan, but the record demonstrates the contrary.

Appellant argues her attorney would have examined social workers about alleged deficiencies in the supplemental report and about other statements made pertaining to appellant. But, as she acknowledges, the juvenile court did not consider any inappropriate information and even advised appellant that her testimony was “helpful.”

Overwhelming evidence supports the juvenile court’s finding that continued supervision over the minors was necessary and in their best interests. There was no miscarriage of justice. (Cal. Const., art. VI, § 13; see In re Andrew S. (1994) 27 Cal.App.4th 541, 549-550.)

II

We also reject appellant’s contention that the juvenile court’s denial of her request to call the minors as witnesses violated her right to due process of law and constituted reversible error.

A juvenile court may refuse to require the attendance and testimony of a minor in a dependency matter (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089), even though the testimony may be relevant to an issue in the proceeding, the minor is competent as a witness, and the minor is available to testify. (Id. at p. 1088.) The court’s power to do so derives from its obligation to promote the best interests of the minor. (Id. at p. 1089.) For example, where “the child’s desires and wishes can be directly presented without live testimony, where the issues to be resolved would not be materially affected by the child’s testimony, and where it is shown that the child would be psychologically damaged by being required to testify,” the juvenile court “has the power to exclude such testimony.” (Ibid.) We will uphold the court’s ruling unless it constitutes an abuse of discretion. (Id. at p. 1088.)

Here, the supplemental report prepared for the review hearing reflects that the minors appeared uncomfortable and intimidated around appellant, and the minors’ counsel strongly objected to their being called as witnesses by appellant, who, counsel noted, had made them “afraid” and might have “coached [them on what] to say or not to say.” Not only is this sufficient to support the juvenile court’s ruling, appellant has failed to convincingly show how testimony by the minors would have assisted the court or benefited appellant on the issue whether family maintenance services should be continued.

Appellant suggests that the minors’ interests could have been safeguarded by application of the provisions of section 350, which states in part: “(b) The testimony of a minor may be taken in chambers and outside the presence of the minor’s parent or parents, if the minor’s parent or parents are represented by counsel, the counsel is present and any of the following circumstances exist: [¶] (1) The court determines that testimony in chambers is necessary to ensure truthful testimony. [¶] (2) The minor is likely to be intimidated by a formal courtroom setting. [¶] (3) The minor is afraid to testify in front of his or her parent or parents.”

According to appellant, there was no allegation the minors would be traumatized by testifying. We disagree. In objecting to appellant calling the minors as witnesses, their counsel asserted the minors had been afraid of appellant, had looked to her before talking with counsel, and may have been coached on what to say. This constituted a sufficient basis for the juvenile court to conclude that the minors would have been intimidated and harmed by having to testify, whether or not appellant was present.

The ruling did not violate appellant’s right to due process of law. In In re Amy M. (1991) 232 Cal.App.3d 849, upon which appellant relies, there were no statements in the record expressing the feelings of the minors. (Id. at p. 865.) Thus, the appellate court held a minor who was competent to testify should have been permitted to testify. (Id. at pp. 858, 867.) Here, in contrast, evidence of the minors’ feelings, conditions, and circumstances was in the social worker’s reports. Balancing the potential harm to the minors against the limited probative value of their testimony, the court properly exercised its discretion by precluding appellant from calling the minors as witnesses.

DISPOSITION

The orders of the juvenile court are affirmed.

I concur: NICHOLSON, J., SIMS, J.

I concur in part I of the majority opinion.

I concur in the result in part II of the majority opinion.

In my view, the juvenile court erred in preventing appellant from calling her son, B. O., as a witness. (See In re Amy M. (1991) 232 Cal.App.3d 849, 858, 867.)

B. O. was born in May, 1994, and was six weeks shy of being 14 years old at the time of the hearing at issue on April 17, 2008.

The reason given by the minor’s counsel for excluding the testimony is as follows:

“Your honor, the reason why I am objecting to the testimony of the children is that in my approach to them they have been hesitant. They have been afraid and they look to their mother before they will talk to me. And then they just shake their head.

“So I have some concern about what the children have been coached to say or not to say. And if the court allows [M.] to speak or [B.], either one, I would ask that the Court consider their testimony in view of that.”

Fairly construed, this is a statement that minors may not give accurate testimony because they have been coached. This is not a reason to exclude the testimony of a 13-year-old minor. The minor’s counsel’s passing reference that the minors were “afraid” is not sufficient to demonstrate the 13-year-old minor would suffer psychological stress if he testified.

As appellant points out, the juvenile court could have used the provisions of Welfare and Institutions Code section 350 to take the testimony of B. O. in chambers on the ground that, in the words of the statute, “the minor is afraid to testify in front of his or her parent or parents.” (§ 350, subd. (b)(3).)

On this record, I think the juvenile court erred in precluding B. O. from testifying in chambers, as appellant requested.

Nonetheless, the exclusion of this testimony cannot be reversible error. This is because Evidence Code section 354 provides in pertinent part as follows:

“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:

“(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, offer of proof, or by any other means.”

In the juvenile court, appellant made no suggestion as to what B. O.’s testimony might be. She made no offer of proof. She is not excused from this obligation because she was representing herself without an attorney. “[A]s is the case with attorneys, pro. per. litigants must follow correct rules of procedure. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party ‘held to the same restrictive procedural rules as an attorney’]; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638–639.)” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247, parallel citations omitted.) A pro per party must make an offer of proof in the trial court in order to prevail on a claim, on appeal, that evidence was wrongly excluded. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.)

Moreover, appellant could be expected to know the testimony of the minor, because the minor was living with her at the time of the review hearing.

In my view, application of Evidence Code section 354 precludes reversal of the judgment.


Summaries of

In re B.O.

California Court of Appeals, Third District, Glenn
Apr 14, 2009
No. C059076 (Cal. Ct. App. Apr. 14, 2009)
Case details for

In re B.O.

Case Details

Full title:In re B.O. et al., Persons Coming Under the Juvenile Court Law. GLENN…

Court:California Court of Appeals, Third District, Glenn

Date published: Apr 14, 2009

Citations

No. C059076 (Cal. Ct. App. Apr. 14, 2009)