Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo, Super. Ct. No. JV 46693, Roger Picquet, Judge.
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Warren R. Jensen, County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent.
GILBERT, P.J.
K.D. ("Mother") appeals the jurisdiction and disposition orders of the juvenile court regarding her daughter J. (Welf. & Inst. Code, §§ 355, 358.) We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On December 11, 2007, the San Luis Obispo County Department of Social Services ("DSS") filed a dependency petition on behalf of 16-year-old J. DSS alleged that Mother assaulted J. when J. refused to accompany her on a shopping trip. Mother pulled J.'s hair, threw items at her, including a rabbit cage, and stabbed J.'s closed bedroom door with scissors. Frightened by her mother's actions, J. summoned police assistance. Mother left the family home prior to police arrival; they later arrested and incarcerated her on a charge of child abuse. DSS alleged that Mother failed to protect J. and that she could not provide for her support due to her incarceration. (§ 300, subds. (b) & (g).) DSS also alleged that J.'s father lives in Iowa and does not share custody.
J.'s father is not a party to this appeal.
On December 12, 2007, the juvenile court ordered that J. be detained. On December 18, 2007, the court returned J. to her mother's custody pursuant to a plan of family maintenance services. The court also ordered that Mother and J. receive psychological evaluations. It then set a combined jurisdiction and disposition hearing. Mother and her counsel were present in court during the initial and continued detention hearings.
On January 29, 2008, DSS filed an amended dependency petition, alleging that J. was at risk of serious emotional damage. (§ 300, subd. (c).) DSS alleged that Mother had mental and emotional problems, used prescription narcotics, and had refused to cooperate with DSS. J. was truant, failing in school, and experimenting with drugs, sex, and alcohol. She also was suffering from self-inflicted wounds on her wrist. DSS placed J. in protective custody.
On January 30, 2008, Mother was present in court with her attorney. She submitted the issue of J.'s detention, pending a combined jurisdiction and disposition hearing set for February 19, 2008. On January 31, 2008, DSS mailed a notice of the combined jurisdiction and disposition hearing to Mother. The notice advised Mother that she had the right to be present, to present evidence, and to be represented by an attorney. The notice stated that "[t]he court may proceed with this hearing whether or not you are present." The notice also provided the name and telephone number of the DSS social worker if Mother had any questions.
Prior to the jurisdiction and disposition hearing, the juvenile court relieved Mother's counsel at his request. Mother then retained attorney Fisher to represent her.
The jurisdiction and disposition reports prepared by DSS stated that law enforcement frequently responded to calls at the family residence throughout 2007. At times, Mother and J. had engaged in physical conflict.
The reports also contained the psychological evaluations of Mother and J. Doctor Thomas Wylie opined that Mother suffers from a histrionic personality disorder and a mood disorder. He opined that J. suffers from borderline personality disorder, an attention deficit/hyperactivity disorder and an adjustment disorder. Doctor Wylie stated that Mother and J. each required extensive treatment and that Mother may not be able to provide a stable and supportive environment for J. to participate successfully in therapy.
The reports stated that Mother had engaged in unauthorized telephone contact with J. and discontinued J.'s psychological treatment after one session. Mother also had not progressed in her family maintenance services plan.
On February 19, 2008, attorney Fisher appeared at the combined jurisdiction and disposition hearing, but Mother was not present. Fisher stated that Mother had left him a telephone message one hour before the hearing, requesting that he set a contested disposition hearing. He "[s]ort of" expected that she would be present, but recommended that the court not await her presence. The juvenile court then set a readiness hearing for March 4, 2008, and a contested disposition hearing for March 6, 2008. The court later found that Mother waived her right to a hearing regarding jurisdiction, and waived her rights to confront and cross-examine the preparer of DSS reports, the right to subpoena witnesses, and to present evidence on her behalf, among other things.
At the readiness hearing, Mother appeared and stated that she disagreed with J.'s removal, and with factual statements in DSS reports. Her attorney then stated that Mother would submit the matter on the "recommendation and basis of" the reports. Mother did not object or respond to counsel's statement, and the court took the matter under submission. The court also signed written findings that Mother waived her right to a court trial, to assert her privilege against self-incrimination, to confront and subpoena witnesses, and to present evidence on her behalf, among other things.
Mother appeals and contends that the juvenile court erred by not advising her of her trial rights and obtaining a waiver thereof before accepting her submission regarding jurisdiction and disposition.
DISCUSSION
I.
Mother argues that the juvenile court violated her rights to due process of law because it did not advise her of her trial rights and obtain a personal waiver prior to making its jurisdiction and disposition findings. (Cal. Rules of Court, rules 5.682, 5.534(k)(1); In re Monique T. (1992) 2 Cal.App.4th 1372, 1377 [advisement of rights and personal waiver is required].) She asserts the error is reversible because she disagreed with the allegations of the petition and with certain statements in DSS reports.
The juvenile court did not err by not advising Mother and obtaining a personal waiver of her trial rights at the February 19, 2008 jurisdiction hearing because Mother did not appear. Attorney Fisher appeared on her behalf and informed the court that Mother requested a contested disposition hearing. The record, fairly interpreted, reflects that the court and the parties believed Mother submitted to jurisdiction. Thus she has forfeited her claim concerning the February 19, 2008 jurisdiction hearing. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [general rule of forfeiture applies in dependency proceedings].)
Moreover, the DSS notice of the hearing informed Mother of the jurisdiction hearing date, her right to be present and present evidence, and her right to representation by an attorney. It also warned that the court would proceed with the hearing in her absence.
At the March 4, 2008 readiness hearing, DSS requested the court to make written findings regarding advisements and waivers at the prior jurisdiction hearing. Mother was present with her attorney and did not object to the DSS request.
Although the juvenile court did not advise Mother of her trial rights and obtain a waiver thereof regarding the disposition hearing, the error is harmless. Through counsel, Mother submitted on the "basis of the [DSS] report." (In re Richard K. (1994) 25 Cal.App.4th 580, 590 ["He who consents to an act is not wronged by it"].) Mother does not contend that she had more favorable or different evidence to offer. Moreover, she acknowledged her medical and emotional problems and requested that the court consider placement of J. with her sister: "I’m dealing with some medical issues, and as soon as those get dealt with, I'd like for her to come home. There [were] errors in the report [regarding] pain medication. I'm not on that medication. I did have a prescription. . . . [There are] just a lot of errors in the report." (In re Monique T., supra, 2 Cal.App.4th 1372, 1378 [failure to advise parent of rights and obtain a waiver was harmless error in part because parent's inability to care for child was uncontradicted and she did not offer different or more favorable evidence].)
The orders are affirmed.
We concur: YEGAN, J., COFFEE, J.