Opinion
2d Juv. No. B202761
7-30-2008
In re C.B. et al., Persons Coming Under the Juvenile Court Law. SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. L.O., Defendant and Appellant.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant. R. Wyatt Cash, County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
L.O. appeals an order of the juvenile court made at a 12-month review hearing, in part terminating her family reunification services. (Welf. & Inst. Code, § 366.21, subd. (f).) We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On August 8, 2006, the San Luis Obispo County Department of Social Services (DSS) filed a petition of behalf of 14-year-old C.B. and 10-year-old D.B. DSS alleged that L. had pulled C.B.s hair and forcefully covered her mouth, injuring her lip. C.B. also reported that her stepfather had pushed her and urged L. to hit her. DSS alleged that L. suffers from mental and emotional instability and has associated with violent men, thereby exposing her children to repeated domestic violence. The childrens father was incarcerated following his conviction of a crime of domestic violence. (§ 300, subds. (b), (c).)
The childrens father is not a party to this appeal.
On August 9, 2006, the juvenile court ordered that the children be detained. L. was present at the detention hearing and represented by counsel. At the hearing, DSS explained the dependency process to L. and advised her that she had but 12 months to participate in reunification services and reunite with her children. DSS then placed the children with a maternal aunt and uncle.
Police had arrested L. upon charges of child abuse. Within two months, however, the criminal courts dismissed the charges against L.
At the scheduled jurisdiction and disposition hearing, L.s attorney appeared on her behalf and requested to be relieved as counsel due to "a conflict." The juvenile court then appointed attorney Foss to represent L. Foss thereafter requested a continuance to prepare for the jurisdiction and disposition hearing and to meet with L., who was present in court.
On October 10, 2006, Foss appeared on behalf of L. and requested a contested jurisdiction and disposition hearing to be set on a Monday, due to L.s work schedule. The juvenile court denied the Monday request and explained that it held other juvenile matters on that day. At the juvenile courts suggestion, the parties agreed to attend mediation.
Prior to the mediation, Foss appeared on behalf of L. and requested that the juvenile court appoint new counsel. The juvenile court also received a lengthy letter from L. stating that she refused to attend mediation, that her prior court-appointed attorneys were inadequate and unethical, that the juvenile court judge had heard her prior dissolution matter, and that she intended to represent herself. L. also stated that the allegations in the dependency petition were false.
In response, the juvenile court judge stated that she had checked the court records and that she had not handled a family law matter regarding L. The court inquired whether Foss had notified L. and requested that she be present in court. He responded affirmatively. The court then ordered that Foss and L. appear the following day to discuss the representation and contested hearing matters.
L. later provided evidence that the juvenile court judge had approved a waiver of filing fees regarding L.s dissolution action.
The following day, Foss appeared at the continued hearing, but L. did not. She had informed Foss that she intended to retain private counsel, and reiterated her request for a Monday hearing. The juvenile court declined to relieve Foss as attorney for L. and repeated its request for L. to appear at the next hearing scheduled for October 31, 2006.
On October 31, 2006, L. did not appear in court. Foss stated that she informed him that she intended to retain private counsel, and did not want him to represent her. The juvenile court then relieved Foss as attorney of record. The court then set a contested jurisdiction and disposition hearing for December 12 and 13, 2006, before another juvenile court judge. The court clerk notified L. of the hearing date and the juvenile court also requested DSS to telephone L. and advise her of the December dates.
Prior to the December hearing, the juvenile court received a second letter from L. In this letter, among other things, she stated that she would not attend the hearings because she did not have private retained counsel. She requested a continuance to obtain counsel. On December 5, 2006, the parties discussed this letter with the court. The court telephoned L. in court and upon the record. In a voicemail message, it informed her that there would be no continuance and the court expected her to appear. The court clerk mailed a copy of the minute order confirming the December 12, 2006, hearing to L.
DSS submitted a jurisdiction and disposition report reflecting the childrens statements that they feared and disliked their stepfather. The children stated that they did not want to return to their mothers custody and care if she continued to live with her husband.
On December 12, 2006, the juvenile court sustained the allegations of the dependency petition, continued the childrens placement with relatives, and ordered that L. receive family reunification services. Neither L. nor an attorney on her behalf appeared at the jurisdiction and disposition hearing. The court clerk mailed notice of the courts orders and findings to L.
In response, L. wrote the juvenile court a third letter, challenging the courts orders made in her absence. L. stated that the allegations against her were untrue and she had not received fair hearings. She added that she "will contact the court when we have obtained our coun[s]el." L. attached documents to the letter evidencing that the criminal court had dismissed her criminal matter and that she completed a parent education class in 2003, among other things.
The juvenile court held a six-month review hearing on April 4, 2007. Despite notice of the hearing on a mandatory Judicial Council form, L. did not appear nor did counsel appear on her behalf. The DSS review report stated that L. had not participated at all in her family reunification services plan, which required mental health counseling, among other things. L. had not visited her children; the children did not want to visit her if she continued to live with her husband. The juvenile court continued the children as dependents of the court and ordered that L. receive six additional months of family reunification services. It also set a 12-month review hearing, and notified L. of its findings and orders by mail.
Prior to the 12-month hearing, DSS prepared a report recommending that the juvenile court terminate family reunification services to L. because she had not participated in reunification services, failed to visit her children within the last year, and had not contacted the assigned social worker. Upon receipt of notice of the hearing, L. wrote the juvenile court two additional letters. She pointed out that the criminal court had dismissed her criminal prosecution and reasoned that the DSS requirement of mental health counseling was unfair. She stated that she had no legal representation and could not attend juvenile court hearings "because of issues surrounding conflict in this court case." L. blamed the childrens father for causing the dependency petition.
On October 3, 2007, the juvenile court read and considered the DSS reports. It found by clear and convincing evidence that L. had not participated in her family reunification services plan. The court then terminated services concerning L., but continued services for the childrens father. L. did not attend the hearing nor was she represented by counsel. The juvenile court sent copies of the findings and orders to her by mail.
L. appeals and contends that she did not receive due process of law because she was denied the effective assistance of counsel. (§ 317.5, subd. (a) ["All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel"].)
DISCUSSION
L. argues that the juvenile court erred by proceeding for 12 months in the absence of counsel, thereby denying her due process of law. (§ 317, subd. (b) [court must appoint counsel for indigent parent where child is in out-of-home placement]; In re Jesse C. (1999) 71 Cal.App.4th 1481, 1486 [circumstances may require appointed counsel for indigent parent unless "knowingly and intelligently waived"]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707 [constitutional right to effective assistance of counsel in dependency proceedings].) She contends that the juvenile courts order relieving appointed counsel and denying her a continuance to obtain retained counsel deprived her of the opportunity to be heard. (Katheryn S. v. Superior Court (2000) 82 Cal.App.4th 958, 971 [denial of counsel in dependency proceeding may result in denial of due process].) L. claims that she did not knowingly and intelligently waive her rights to counsel. (§ 317, subd. (b).)
L. asserts that the errors are prejudicial and require reversal of the juvenile courts orders in part because the juvenile court did not receive her letters into evidence to contest the allegations of the dependency petition.
For several reasons, we reject L.s contentions.
First, she has waived her right to challenge the earlier orders of the juvenile court because she did not appeal them. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151, 1157 [claims involving right to counsel and to effective assistance of counsel may be surrendered by inaction].) The time to appeal the detention, jurisdiction, disposition, and six-month review hearings has long expired. "[A]n appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order." (Id. at p. 1151.) This rule applies although L. raises issues regarding constitutional and statutory rights to counsel. (Ibid. [parent asserted that she was deprived of constitutional and statutory rights to counsel from detention hearing through 18-month review hearing].)
Second, L. has forfeited her right to challenge her lack of counsel in the dependency proceedings. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [forfeiture rule applies in dependency proceedings].) On two occasions, she requested that the juvenile court remove her court-appointed attorneys, later accusing them of unethical conduct. She then requested to represent herself, but she did not appear in court again following September 12, 2006. Following that date, she wrote letters to the juvenile court stating that she intended to obtain private counsel. Nevertheless, during the next 12 months, L. did not appear in court nor did private counsel appear on her behalf. She also did not request appointment of a third court-appointed counsel. The juvenile court and DSS mailed notices to L. at her address of record, and the juvenile court judge telephoned her in court upon the record, and left a message. L. did not appear "because of issues surrounding conflict in this court case." She may not challenge her lack of representation by counsel now.
The order is affirmed.
We concur:
YEGAN, J.
PERREN, J.