Opinion
San Mateo County Super. Ct. No. 61957
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Haerle, Acting P. J.
I. Introduction
In these proceedings for dependent child James W., Sandra S. (mother) appeals an order of November 18, 2005, denying a modification petition (Welf. & Inst. Code, § 388) in which, acting pro se, she sought to “set aside/Dismiss all CPS and Court involvement” in this case. Her appointed counsel on appeal does not attack that ruling on the merits, but claims error in the court having granted mother pro se status a year earlier, shortly before the court terminated her reunification services. We find ourselves without jurisdiction to review the earlier orders and, lacking any showing that self-representation prejudiced mother here, affirm the denial of modification.
All further statutory references are to the Welfare and Institutions Code.
II. Factual and Procedural Background
James was detained in foster care in August 2003, and jurisdiction began in October 2003, when the boy, then age seven, was made a dependent for mother’s failure to protect (§ 300, subd. (b)). Sustained allegations were: (1) a long history of drug and alcohol abuse and emotional instability, with impulsive behavior and unwillingness to use community resources to secure shelter or substance abuse treatment; (2) lack of a stable residence, and dismissal from a homeless shelter for drinking and refusal to comply with drug testing; and (3) failure to ensure James’s regular attendance at school, his irregular attendance being marked by inattention, fear, confusion and aggression. James was kept in foster care, where he remains; his father’s whereabouts were and remain unknown.
Early on, mother displayed a posture of defiance and blaming others that would persist throughout the proceedings. A mental health evaluation by Dr. Renée LaFarge, proposed for the October 2003 disposition, identified an antisocial personality disorder with narcissistic features. LaFarge wrote: “[Mother] sees the circumstances surrounding the removal of and reunification with her son James in a purely legalistic manner and is awaiting her day in court. She has little understanding/acceptance that a reunification process is necessary in order to regain custody of him or what that could entail. She believes that she will win her case through a trial, producing evidence that will vindicate her from any wrong-doing. She . . . believes that James will simply be returned to her once she proves that the information the court now has is wrong. During the interview this examiner attempted to present the facts regarding a reunification process but [she] became agitated and defensive . . . .” LaFarge found that mother loved her son but was unable to acknowledge any responsibility for his current situation. Mother was unable to protect James from future harm, had “a strong aversion to any treatment for herself or for her son, ” and was “not amenable to treatment if it were offered to her.”
The court ordered services anyway, and LaFarge’s predictions were borne out. Mother resisted treatment, waged an unrelenting war on respondent San Mateo County Human Services Agency (the agency), and made no use of services beyond supervised visits and attending some classes that she later insisted did not benefit her. Throughout the reunification period, she pursued a strategy of resisting compliance and trying to undo the jurisdictional findings.
This inevitably led to tension with her initial appointed counsel, Craig Morey, and in April 2004, at a six-month review, mother moved to represent herself. Judge Marta Diaz, who had presided to that point, granted the motion and relieved Morey. A contested review was set, but by then mother had filed charges against Judge Diaz with the Commission on Judicial Performance, and the judge accordingly recused herself. When the matter came before a new judge, mother was appointed new counsel, Kevin Thurber. All further proceedings were before Judge Richard Livermore.
The “six-month” review was long delayed by continuances and by mother’s refusal to sign consent forms for James, which had forced the agency to petition for court orders (§ 388). The hearing occurred on August 20, 2004, a year after James had entered foster care and over 10 months into the reunification period. Mother’s position remained that neither she nor James needed therapy. She refused drug testing or treatment, saw no harm in her admitted use of alcohol and marijuana, attended just a few therapy sessions, and, due to agency concern about harm to James during past supervised visits, now had all visits in the presence of the child’s therapist. Her counsel argued for more time, and the court, despite “real doubts” whether reunification could be achieved within even an extended 18 months, continued services, and set the looming 12-month review for late September.
Mother filed a notice of appeal from the “six-month” review order, and this became our docket No. A107749. Her appointed appellate counsel ultimately filed a no-issue statement, and we dismissed the appeal in January 2005 (In re Sade C. (1996) 13 Cal.4th 952, 994) after mother declined an opportunity to raise issues on her own. Meanwhile, the 12-month review was continued when it developed that mother mistakenly thought her appeal would stay all proceedings.
On November 4, 2004, the eve of the continued hearing, mother moved once more to act as her own counsel. The court, correctly observing that full admonitions made in the criminal context under Faretta v. California (1975) 422 U.S. 806 (Faretta), were not required in the dependency setting (§ 317, subd. (b); In re Angel W. (2001) 93 Cal.App.4th 1074, 1084), nevertheless conducted an exhaustive Faretta-type voir dire and, in the end, granted the motion. Thurber approved, saying, “[M]y client wishes to pursue a legal strategy that I, as her counsel, am not willing to follow, ” and assured the court that she “[was] competent to do so.” The court also granted mother’s motion to have Thurber act as standby counsel. The voir dire included ensuring that mother understood the nature of the proceedings and possible outcomes, the pitfalls of acting without counsel, and specifically, that the matters of detention and disposition were past and that the issues now concerned reunification. Mother was attentive, responsive and articulate, and when the court interrupted as she strayed into matters more appropriate to jurisdiction, mother clarified that she understood the reunification services and procedures, saying pointedly: “What they call services are counseling, you know, the evaluations. And then if I do not follow them, then I will not have my son back with me.” She acknowledged, as to earlier proceedings: “[N]ow what I’m being told, it’s too late. I think Kevin has been a good lawyer, but he says we can’t go back and, you know, change that.” “[B]ut, ” she stressed, “I feel like I’m entitled to a counsel that’s going to, you know, do what I need him to do because I feel like this would have never gone this far at all. And I feel there’s been a great injustice . . . .” Before accepting mother’s waiver as voluntary and intelligent, the court noted that mother had “very strong problems with the way this process has worked” and claimed she had been “denied fundamental due process rights.” It noted that competent counsel would be able to assess any legal recourse but could not be expected to go “outside the boundaries of what he as a professional can recommend that you do . . . .”
A delayed 12-month hearing was held on January 3, 2005. Updated information showed that mother was noncompliant and making no further efforts to progress with services. James was doing very well after a year in his foster care home, and his court-appointed advocate recommended that weekly visits continue. The agency recommended finding no substantial probability of return within the statutory 18 months, terminating reunification services, finding James not to be a proper subject for adoption, and placing him in long-term foster care with continuing supervised visits.
Again, mother offered evidence to dispute the jurisdictional findings. Her offers were met by objections and multiple explanations by the court that the jurisdictional findings could not be attacked at this stage of the proceedings. The court tried to coax out any information mother had on the services issues before the court, but mother conceded that she had none. She made no pertinent offer of proof and said at one point: “I really don’t have any evidence. You know, it’s obvious I haven’t been cooperating.” She also declined to cross-examine the social worker on the current reports. In the end, when it appeared that she had nothing to offer on reunification and that all other parties were prepared to submit, mother left the courtroom. The court treated this as her submission, adopted the report recommendations, and set a post-permanent-plan status review for June 30, 2005.
The status review hearing (§ 366.3, subds. (d)-(g)) took place on schedule, with mother confirming at the outset that she still wished to represent herself. A status report related that James, now nearly nine years old and an “engaging and smart young man, ” was doing well and still had weekly supervised visits with mother despite the termination of reunification services. Mother had recently passed an inappropriate note to him, but James had “ ‘let it fall out’ ” near his supervisor without reading it. He was “very comfortable and settled” in his foster home, had formed strong attachments there, liked sports, and wanted to live with his mother but understood that this was unlikely to happen anytime soon. He looked forward to the visits, especially when his adult older brother Sonny was present, but when visits did not occur, this did not, as it had earlier, affect his behavior at home or school. The report observed that the stability of his current placement left open “the possibility of a search for an adoptive home . . . in the future, ” but recommended for now continued long-term foster care and a further finding that James was not a proper subject for adoption.
At this review, mother once again offered no evidence on the issues before the court, now the permanent plan. She offered only evidence to attack the jurisdictional findings—this time faxed documents she had written to a county grand jury. She did argue that her adult son Sonny should have court-ordered visits with James, and the court accommodated that concern by expressly ordering supervised visits for Sonny, as well as mother. The court then adopted the recommendations, continuing long-term foster care and setting the next plan review for November 29, 2005.
In late October, before the next review, mother mailed the court a section 388 petition that sought to “set aside/Dismiss all CPS and Court involvement with our family” and to investigate “despicable conduct of the DSS and San Mateo County Child Welfare Service Agency and County Counsel.” She alleged malpractice by a “mental health worker” and her counsel, knowing use of “fabricated” and “false” evidence, failure to disclose “exculpatory evidence, ” and the securing of evidence by “duress and undue influence.” Attachments not clearly identified as such numbered nearly 300 pages. They consisted largely of writings mother had submitted about the case to a wide range of state and federal agencies and officials.
On November 18, 2005, the court denied the petition without a hearing, on the ground that it “fails to state new evidence or a change of circumstances.” Mother filed a timely notice of appeal from that denial on January 17, 2006, just within the 60-day time limit (Cal. Rules of Court, rule 8.400(d)(1)), and her notice also purports to appeal “[o]ther appealable orders” of “12 Aug 06 through present [sic].” Literally, of course, such orders had not yet occurred, but accompanying comments appear to invoke matters going back to the inception of the case.
See footnote 1, ante, page 1.
III. Discussion
Mother’s counsel on appeal does not defend the merits of mother’s section 388 petition but attacks the November 2004 ruling granting pro se status. We are urged that mother, while “competent and intelligent in many regards, ” was not competent to give a knowing and intelligent waiver of her right to counsel and that allowing her to represent herself was error that “negatively impacted the outcome” of both the 12-month review in January 2005, and the modification denial now appealed, in denigration of her due process rights. Counsel concedes that the time to appeal both the self-representation ruling and the 12-month review order has “passed, ” but he reasons that “argument related to [the] section 388 petition depends on the error asserted in these previous orders, ” that applying the forfeiture rule in these circumstances would create “additional due process concerns” since mother has been “effectively barred from challenging the court’s order relieving her court appointed counsel until now, ” and that forfeiture therefore “should not stop this court from reaching the merits of this appeal.”
The agency defends the November 2004 order on the merits, arguing that mother was competent to waive her right to counsel and, in any event, suffered no prejudice or due process denial from any error given her intractable refusal to utilize services; similarly, there is no showing of due process error that might overcome application of the forfeiture rule.
We agree with the agency that forfeiture bars reaching the merits of any earlier orders on the facts presented. Our Supreme Court has explained, quoting decisions from our own division: “ ‘[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.’ [Citation.] An appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time for filing an appeal has passed. [Citation.] ‘Permitting a parent to raise issues going to the validity of a final earlier appealable order would directly undermine dominant concerns of finality and reasonable expedition, ’ including ‘the predominant interest of the child and state . . . .’ [Citation.]” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.) Mother never appealed the November 2005 order granting pro se status, and she never challenged her pro se status through appeals from the January 2005 order terminating services and adopting long-term foster care, or the June 2005 order continuing that plan. To allow her to undermine all of those orders now would be an unconscionable disregard of the forfeiture rule and policies it implements.
Mother’s only authority for doing so is In re Jessica G. (2001) 93 Cal.App.4th 1180, which we readily distinguish. The mother there, on appeal from an order terminating parental rights where she had been represented by a guardian ad litem (GAL), successfully argued that the GAL was appointed without due process. (Id. at pp. 1186-1190.) The Court of Appeal declined to apply forfeiture, despite the mother’s failure to challenge the appointment earlier, by writ, reasoning: “How could Mother have done so? Her attorney looked to the [GAL], and that person could hardly be expected to endorse a writ questioning the legality of her appointment. Mother was in a Catch-22 situation in which she had a bare remedy with no real knowledge or ability of how to use it and no attorney to whom she could turn to effect it.” (Id. at p. 1190.)
The situation here is vastly different. First, the order granting mother pro se status was a vindication of her due process right to conduct her own defense the way she saw fit, not a termination of that right by appointing a GAL to make those decisions without her input. Second, if mother had no incentive to complain of the November 2004 ruling itself, which granted her own motion, she certainly had the opportunity and incentive to complain of it on an appeal from the January 2005 order terminating her reunification services and instituting long-term foster care as James’s permanent plan. Third, her counsel erroneously characterizes that latter order as “terminating [her] parental rights” when, in fact, no such thing occurred. The court did not terminate parental rights; rather, it found adoption not to be a proper plan and ordered long-term foster care, both then and at the plan review in June 2005. Mother’s parental rights were preserved both times. Forfeiture applies to bar this belated attack on the November 2004 ruling.
The denial of mother’s section 388 petition is, of course, before us by a timely appeal, but even if we were to consider her self-representation at that point to be error, we could not find prejudice. First, we see no basis for any federal constitutional issue. No due process right to counsel exists unless, on the facts, the presence of counsel would have made a determinative difference in the outcome of the proceedings and the absence of counsel rendered the proceedings fundamentally unfair. (In re Claudia S. (2005) 131 Cal.App.4th 236, 251; In re Angel W., supra, 93 Cal.App.4th at p. 1081.) Here, with the termination of reunification services 10 months past, the balance of interests had shifted from reunification to the child’s interests in permanence and stability (In re Marilyn H. (1993) 5 Cal.4th 295, 309), and we are cited no authority remotely suggesting that a parent bringing a section 388 petition that far into a plan of long-term foster care has a constitutional due process right to the assistance of counsel. Nor does it appear, on the facts before us, that the presence of counsel would have made a determinative difference. Mother does not even try to argue that a modification petition drafted by counsel would have had any merit, given her lack of progress and refusal to cooperate. Thus, the most that can be said is that any error would be statutory, not constitutional, and tested by the ordinary standard of whether a better result was reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836; In re Angel W., at p. 1082.) Again, nothing suggests that mother’s section 388 petition would have had any merit if drafted by counsel.
IV. Disposition
The order of November 18, 2005, is affirmed.
We concur: Lambden, J., Richman, J.
The order denying modification is appealable as an order after judgment (§ 395; In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703) and is specified in mother’s notice of appeal, filed January 17, 2006. Also specified in the notice are “other appealable orders” from “12 Aug 06 [sic] through present, ” by which we infer, from complaints stated there about poor representation by appointed trial counsel at the detention through disposition phases of the proceedings in 2003, that she purports to appeal from unspecified early orders from the inception of the case.