Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JD17771
ELIA, J.Appellant contends that the court "abused its discretion and violated [her] due process rights when it dismissed her attorney before obtaining a valid waiver of her right to counsel." She contends that the juvenile court's jurisdictional order adjudging her son James J. a dependent of the juvenile court lacked sufficient evidentiary support. As to the dispositional order, appellant contends that there was insufficient evidence for removal and that the order was an abuse of discretion. She also asserts a violation of the Indian Child Welfare Act. As explained below, we agree that the juvenile court failed to obtain a valid waiver of counsel.
Background
On January 11, 2007, James J., age seven, went to the nurse's office at his elementary school and said that his mother, Ms. M., had choked him with her hands that morning, that she yelled at him daily, that his teacher was "mean to him," and that he was having "a bad day." He had no visible injuries. James missed the next few days of school.
Ms. M. told the social worker that James missed school because he had a fever. She sought medical attention for him and a throat culture was taken. On January 17, the principal of James's school conducted a home visit to see why James was not in school and Ms. M. said that she was waiting for the results of the throat culture.
On January 18, the school called to inquire why James was not at school. Ms. M. decided that James would attend that day. Ms. M. told the social worker that James did not like his teacher and resisted getting ready for school. When he did return to school that day, James told the authorities that he was sick and did not want to attend school but that Ms. M. had "entered his room, grabbed him by the neck with both her hands and threw him on a couch." James complained of pain in his neck and that said his mother was a bad person and should be arrested. He had no visible injuries. James was taken to the Children's Shelter.
The Welfare and Institutions Code section 300 petition uses the date of January 16, 2007 as the date the reported incident occurred. However, the jurisdiction and disposition report uses the date of January 18, 2007.
A social worker interviewed James. She asked him "how he was getting along at home." He said, "I don't want to talk about it and I don't want to talk about my mother." He had a book in his hands. He opened it and asked the social worker to "imagine this is a butterfly in the middle of this open book." He closed the book forcefully and said "this is my mother's 'death.' " James said, "I want to get away from [Ms. M.] because she is evil to me . . . she hits me with her hands and belts, and I don't want to talk about it anymore." While at the Children's Shelter, the social worker observed that James was "especially guarded with others in that he sh[ie]s away from human touch . . . and consistently rebuts [sic] physical contact by others."
James said that his mother was "crazy." He said that one time she was on a bed pretending to be dead and when James started to cry she put her head up and said, "Oh now you want your mommy." He said that she pushed him into the street in front of a car and that she almost stabbed him in the neck with a "rose cutter." He also said that Ms. M. "almost tried to kill" his adult sister, Jackie.
Ms. M. told the social worker that James had been diagnosed with Attention Deficit Hyperactivity Disorder and had been on medication since October 2005. She said that he had "repeatedly left the school grounds without permission and on several occasions, walked home from school, whereby he crossed busy streets." She denied ever hurting James or choking him. She said that she disciplined him by spanking him on his buttocks, taking away his electronic games, or grounding him. She said that James was lying because he did not want to go to school. The social worker said that Ms. M. "presented as very angry, used profanity and continued the interview process in a raised voice (approximately one hour)." Ms. M. told the social worker that the juvenile court intervention might be a " 'blessing in disguise' because now she might be able to obtain the necessary support she needs to address the difficulty she is having rearing her 7 year old son as a single mother."
James's sister, Jackie, age 20, lived with her maternal grandmother in the same complex as James and Ms. M. In 2005, Jackie disclosed to a therapist that James was "getting spanked and yelled at by their mother who has mood changes." This matter was referred to the Department. The department explained to the reporting party that "spanking was not abuse." The investigating social worker determined that Jackie and her grandmother "consistently supervised [James's] care and well-being" and the matter was "evaluated out."
After James was taken to the Children's Shelter, Jackie, a full time college student, was interviewed by the social worker. Jackie said that Ms. M. was very strict and used physical discipline. She said that Ms. M. made sure that James completed his homework and that Ms. M. tried to be a good parent. She said that "James was a difficult child to rear" and that the staff at school "had a difficult time with him." She said that when James was upset with Ms. M. he would walk over to his grandmother's apartment.
Jackie said that Ms. M., on "countless occasions," had outbursts of anger during which Ms. M. would punch holes in walls and throw things. When Jackie was a teenager, she was " 'paralyzed by fear' due to her mother's outbursts of anger." At age 17, Jackie moved in with her grandmother because "she was tired of 'all the yelling.' " Jackie said that when she was 19, she and her mother were arguing in the car as they drove her to college. Ms. M. "slugged" Jackie in the mouth with her fist, causing profuse bleeding. Jackie said that she was now able to "stand up" to Ms. M. and that she has seen James attempt to imitate her assertive response to her mother's displays of temper.
The jurisdiction/disposition report included Ms. M.'s criminal history. In the 1980's she was convicted of forgery, "disorderly conduct, prostitution," and possession of a controlled substance and paraphernalia. In 1999, she was fined for "fight in a public place." In 2002, she was convicted of assault and battery. She also had numerous probation violations following that conviction.
On January 23, 2007, the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (b) (serious physical harm) and (c) (severe emotional damage). James was detained. That day, James was visited at the Children's Shelter by his father, Mr. J. Mr. J. had not seen James for the past four years. Mr. J. was married and had three children. James was the product of a "one night stand" with Ms. M. during this marriage. During his father's visit, James was silent and appeared "scared." He refused a departing hug from Mr. J. but agreed to shake hands with him. A few days later, the social worker took James to Mr. J.'s home for a visit. On February 1, 2007, James was released to live in Mr. J.'s home. After three days there, James told the social worker he "loved" living there. For a while, James said that he did not want to visit with his mother, but eventually a visit was arranged.
Welfare and Institutions Code section 361.2 provides in relevant part, "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. [¶] If the court places the child with that parent it may . . . [o]rder that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child."
The jurisdiction/disposition report dated February 15, 2007, recommended that Mr. J. receive informal supervision services and that Ms. M. receive reunification services. However, by the time of the actual hearing, because James was adjusting so well to living with Mr. J., the Department was recommending that custody orders be issued in favor of Mr. J. and that the case be dismissed. Ms. M. objected. The juvenile court set the case for mediation, at which no settlement was reached, and the matter was set for a contested hearing.
On March 13, 2007, Ms. M.'s counsel told the court that Ms. M. wanted to represent herself and appellant confirmed this. The court relieved counsel and proceeded with the combined jurisdiction/disposition hearing. The Department submitted on its report and made an offer of proof regarding the social worker's testimony. Counsel for Mr. J. said that James was doing well in Mr. J.'s home and submitted on the Department's recommendation.
Ms. M. neither cross-examined nor called witnesses. She gave a lengthy narrative to the court during which she described various omissions that she perceived in the report, conflicts that she had with the social worker, her grievances against James's school, her version of the events the day that James was taken to the Children's Shelter, and her struggles to insure that James received the proper medication for his Attention Deficit Hyperactivity Disorder. She presented the court with some documents and some audio tapes purportedly of telephone calls between her and James in which, according to her, James "was trying to convey to me that [the social worker] was the one who kept him from seeing me."
The court questioned the wisdom of the Department's recommendation to issue custody orders and dismiss the case. The court said, "So is it not in this little boy's best interest to try to integrate his relationship with his mother in a healthy manner by using all the services and the case management of the Department of Family and Children's Services? It's best to leave the family to their own devices? Because we know we will see this case again. We absolutely know we will." The court stated that "the goal of our court when we take children away from their parents is to reunify them." The court said that James was "conflicted" and that he "obviously loves [Ms. M.] very much." However, counsel for the Department said, "the Department is not in favor of offering mother reunification services with the goal of reunifying James with mom." The court said that it would reach a "middle ground." The court removed James from Ms. M.'s custody, placed him with Mr. J., and ordered informal family maintenance services for Mr. J. The court ordered services to Ms. M. "to facilitate [supervised] visitation," including parent orientation, a 52-week child abuser program, therapy, and a psychological evaluation.
Dismissal of Counsel
Background
On February 15, 2007, counsel Patty Bazar appeared with appellant. The Department requested a continuance to comply with the Indian Child Welfare Act and because, as counsel for the Department said, "the department is actually changing the recommendation . . . . James is doing so well in his father's care and it's [the social worker's] assessment that James and his father do not need to be under the supervision of the Court. So the department's recommendation will be to place him with his father and do custody orders and dismiss the case." Ms. Bazar informed the court that appellant did not agree with the proposed recommendation and also contested jurisdiction. The court suggested that the matter could be sent to mediation and appellant agreed.
On March 13, 2007, Bazar told the court that appellant had "informed my office last week that she had decided that she wanted to represent herself. I asked her this morning if that was still her intention and she indicated that it was." The court addressed appellant, "So you do understand, Ms. M[.], that you're entitled to counsel, and if you cannot afford counsel then we can appoint counsel to you, which we have done. But you would prefer to represent yourself?" Appellant answered, "At this point, yes." Ms. M. said that the social worker had "falsified this report, and I could prove it." Ms. M said that she had documents that should have been included in the report that she had apparently shown to her counsel earlier and, in Ms. M.'s opinion, were "crucial to this case." The court responded, "All right. All I want [to] know is if you want to represent yourself." Appellant responded, "I do, Ma'am." The court said, "Okay" and relieved counsel.
After hearing briefly from counsel for the Department and for Mr. J., the court told Ms. M. that it was her "turn to present evidence." At that point, the court said that "because you have decided to represent yourself I must treat you as an attorney." Ms. M. gave a very long statement and made reference to the tape recordings and documents that she wanted the court to review. The court had a discussion of whether the court would consider these items, and inquired as to whether opposing counsel objected to them. The court told Ms. M., "You are going to have to not speak until I ask you to speak again. . . . If you were a lawyer that's exactly what I would say." Eventually, the court listened to the tape recordings appellant offered of calls with her son which Ms. M. characterized as supporting of her position. Although the court told Ms. M. that it had reviewed the tapes and documents, it does not appear that these items were preserved for review by this court.
Discussion
Appellant contends, "The court abused its discretion and violated [Ms. M.'s] due process rights when it dismissed her attorney before obtaining a valid waiver of her right to counsel." She argues that her "statutory and constitutional right to counsel was violated when the court failed to solicit a knowing and intelligent waiver."
Welfare and Institutions Code section 317, subdivision (b) provides, "When it appears to the court that a parent or guardian of the child is presently financially unable to afford and cannot for that reason employ counsel, and . . . the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel for the parent or guardian, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section." (Italics added.)
In In re Angel W. (2001) 93 Cal.App.4th 1074, a mother sought to represent herself at a termination of parental rights hearing. The juvenile court denied her request, observing that it could not " 'make a determination that it would be appropriate for the mother to be representing herself. I don't think that I could take a knowing [and] intelligent waiver from her at this time given her current emotional state in these proceedings.' " (Id at p. 1079.) The Angel W. court said that when an indigent parent has indicated he or she does not want appointed counsel, and chooses self-representation, the court must ascertain whether the parent has knowingly and voluntarily waived the right to counsel. (Id. at p. 1084.) The court said that to comply with section 317, subdivision (b), the court must take a waiver of the right to counsel but that "[t]here is no requirement . . . that the court engage in a full [Faretta v. California (1975) 422 U.S. 806]-type admonition and inquiry." (Ibid.)
This court has said that if the juvenile court has made the parent aware of the dangers and disadvantages of self-representation and the risks and complexities of his or her particular case, a waiver of counsel is valid. (In re Brian R. (1991) 2 Cal.App.4th 904, 921.) In Brian R., "The juvenile court was careful to make [the parents], aware of the 'dangers and disadvantages of self-representation'; to alert them to the consequences of a true finding on the petition, including the possibility that if reunification were unsuccessful their parental rights might be terminated so that [the minor] could be adopted; and to advise them specifically what rights they had, and would be giving up, if they admitted the petition's allegations." (Id at pp. 921-922.)
Respondent argues, "allowing mother to represent herself was not a denial of due process." Without citation to any particular part of the record, respondent argues, "Appellant's remarks during trial reflected a sufficient understanding of the proceedings and the risks at stake." In this court, counsel for James recounts that "the indications in the record are that [Ms. M.] had consulted with counsel throughout several court appearances and an attempt at mediation. Counsel had presumptively advised her of the hazards of self-representation." We are not prepared to presume that counsel so advised Ms. M. Counsel told the court that Ms. M. "informed my office last week that she had decided that she wanted to represent herself. I asked her this morning if that was still her intention and she indicated that it was." Had counsel had the discussion with Ms. M. of the dangers of self-representation that we are asked to presume occurred, we would presume that counsel would have so informed the court. In any event, it is the court's responsibility, not counsel's, to give these advisements and make the finding of a knowing and intelligent waiver. Here, the juvenile court said nothing to appellant about the dangers and disadvantages of self-representation before relieving counsel. Nor did the court make any reference to the risks and complexities of the case. The juvenile court did not give an insufficient advisement. Rather, the juvenile court gave no advisement at all. This was error.
Appellant argues that "the requirement that [Ms. M.'s] waiver be knowing and intelligent is an integral part of her constitutional right to a fair trial in the dependency proceedings" and is structural error requiring reversal without a showing of prejudice. The Angel W. court observed that although there is no constitutional right of self-representation in a dependency proceeding, there is a statutory right to self-representation in a proceeding to terminate parental rights, and error in denying this right should be analyzed under ordinary principles of harmless error as set forth in People v. Watson (1956) 46 Cal.2d 818. (Angel W., supra, 93 Cal.App.4th at p. 1082, citing In re Justin L. (1987) 188 Cal.App.3d 1068.)
Respondent argues, "Even if this court concludes that the trial court should have engaged in further discourse with appellant on the subject of self-representation before relieving her court-appointed attorney, any error in dong so was harmless." Respondent argues, "Appellant expressed she was upset that her attorney was not presenting evidence she wanted the court to have. That evidence, in the form of documents and audio tapes, was considered by the court. There is no suggestion in the record that there was any other evidence which could have produced for appellant a different outcome." Yet respondent argues that substantial evidence supports the jurisdictional finding because, "Appellant presented no evidence at trial. She did not call James, his sister, the maternal grandmother or any other witness to contradict the statements of both her children concerning the allegations that there was ongoing violence directed at them by appellant while they were in her care. [¶] The court was therefore left to consider the contents of the social worker's social study report." In other words, there was essentially no defense, certainly no professionally focused and presented defense, at the jurisdictional hearing. The documents and audio tapes presented were neither summarized by the court in the record nor preserved for review. No evidentiary issues were litigated, such as the admissibility, in light of In re Cindy L (1997) 17 Cal.4th 15, of James's hearsay statements that were used at the jurisdictional hearing. There was no argument targeted specifically at the individual allegations, including the allegation that James was at risk of serious physical injury because appellant had choked him. James had been exposed to strep throat at school. He told the social worker that "his body ached, that his neck was very sore, and that he was not 'feeling well.'" Although "no bruises or visible injuries were observed," James attributed his sore "neck" to Ms. M.'s actions. A few days later, James again complained to the social worker about his "sore neck." The social worker asked James to open his mouth and saw that "his throat was clearly infected." Certainly James would not have been the first young child to use the terms "neck" and "throat" interchangeably. Counsel would have argued that James's complaint had more to do with having strep throat than having been choked to attack the conclusion that James was at risk of serious physical injury.
Counsel would also have challenged the weight to give to appellant's criminal record, much of which was accrued before James was born. There was no evidence that Ms. M.'s fighting or battery convictions involved conduct against minors. Although Jackie reported having been punched in the mouth by Ms. M., Jackie was an adult at the time of that incident. Knowledgeable counsel would have made a compelling argument, citing the appropriate statute, that there were reasonable means by which James could be protected without removing him from Ms. M.'s home. Certainly counsel, rather than offering what is described to this court as a "rambling largely incoherent narrative" by Ms. M., would have provided instead a defense based on properly admitted evidence and directed at the applicable statutes with citation to the appropriate authorities. While the record shows that Ms. M. had a bad temper, yelled at James, and spanked him, these are not necessarily behaviors that justify assuming jurisdiction over a child, removing the child from his home, and declining to order reunification services to a parent with whom he had lived since birth. There is a reasonable probability that a result more favorable to Ms. M. would have been reached had she been represented by counsel at the combined jurisdiction and disposition hearing.
Welfare and Institutions Code section 361, subdivision (c), provides in pertinent part as follows: "A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following . . .: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody. . . . The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a non offending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm. . . . [¶] (3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian."
Remaining Issues
In light of our conclusion that the juvenile court erred in relieving counsel without advising Ms. M. of the risks of self-representation, and that this error was prejudicial, we must reverse the jurisdiction and disposition orders. We need not consider Ms. M.'s remaining contentions regarding the sufficiency of the evidence to support these orders. Furthermore, we need not address the sufficiency of the Indian Child Welfare Act notices.
Disposition
The March 13, 2007, orders of the juvenile court taking jurisdiction over the minor and removing him from appellant's custody are vacated. The matter is remanded with directions to the juvenile court to conduct new jurisdiction and disposition hearings, considering the circumstances as they exist at the time of the new hearings, after providing appellant with proper notice and appointing counsel to represent her.
WE CONCUR: RUSHING, P. J., PREMO, J.