Opinion
H024974.
10-29-2003
In re JOEL H., et al., a Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. SYLVIA M., Defendant and Appellant.
Sylvia M., the mother of dependent child Joel H., appeals from an order granting the father, Juan H.s, Welfare and Institution section 388 petition seeking full custody of Joel. She contends that the court abused its discretion in granting the petition, that she was denied her right to counsel and that the court improperly identified the social worker as an expert on risk assessment. Finding her contentions without merit, we affirm the courts order.
FACTUAL AND PROCEDURAL BACKGROUND
Ten year-old Joel and his two siblings were taken into custody after their parents were arrested on domestic violence charges for assaulting each other. The petitions filed by the Department of Family and Childrens Services (Department) on behalf of the children alleged that the children were used as "pawn[s]" in the parents conflicted relationship. Sylvia had previously made unsubstantiated child abuse allegations against Juan on two occasions. The petition also alleged that the parents argued in front of the children and attempted to alienate the children from the other parent; that the continued domestic violence was effecting the childrens emotional and developmental progress; and that the fathers neurological damage, a result of a 1988 motorcycle accident, impairs his ability to reason and parent.
Joels siblings are not the subject of this appeal.
Although the juvenile court initially placed the children with their paternal grandmother, at the dispositional hearing the court ordered that the children be returned to Sylvias care on the condition she participate in a number of programs. Juan was offered reunification services and was allowed to have unsupervised visits with the children.
Throughout the dependency, the conflict between the parents continued. Juan violated the restraining order preventing him from going near Sylvias home numerous times, resulting in multiple arrests. Sylvia violated the order by allowing Juan to have access to her and the children. Juans violations led the Department to petition the court to change Juans visits from unsupervised to supervised.
Sylvia was not making satisfactory progress during the dependency either. Juan told the social worker that he and Sylvia had been using drugs together and the social worker found evidence of extensive alcohol consumption at Sylvias residence. Sylvia also refused to voluntarily provide a urine sample. She had been terminated from three parenting classes for excessive absences. She had missed important appointments with the CalWorks program as well as a number of her individual counseling sessions.
Reports about the children revealed that they "appeared disheveled, extremely agitated, frightened, very hungry and disorganized emotionally." The childrens aunt had seen Joel putting his mouth on his sisters "private area." Joel admitted to the act and his brother revealed that the children had seen their parents doing "`it."
By the time of the 12-month review hearing, Juan had moved to Inglewood, California to live with his mother and the Department recommended that the children be placed with Juan there. Prior to the date of the contested review hearing, Juan filed a section 388 petition requesting placement of the children with him. At trial on the section 388 petition, the juvenile court sustained the petition and ordered the children placed with Juan on a family maintenance case plan, terminated reunification services for Sylvia and ordered supervised visitation for Sylvia in Los Angeles. The court also transferred the case to Los Angeles County, the county of residence of the children. This appeal ensued.
DISCUSSION
Substantial Evidence Supports the Juvenile Courts Order
Sylvia contends that the court erred in granting the fathers section 388 petition. A party filing a section 388 petition, bears the burden of showing both that a change of circumstances exists, and that the proposed change is in the minors best interest. (In re Casey D. (1999) 70 Cal.App.4th 38, 47; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Where a section 388 petition seeks the removal of a child from a parental home, this showing must be made by clear and convincing evidence. (In re Victoria C. (2002) 100 Cal.App.4th 536, 543.) The question of whether to grant or deny a section 388 petition is within the sound discretion of the juvenile court, and we review the denial of a section 388 petition to determine whether there has been an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
At the inception of the dependency, Juan had difficulty obeying the restraining orders against him as well as following his case plan. However, in support of his petition, Juan demonstrated that in the last six months he had successfully participated in his domestic violence program, he had attended 12-step meetings three times a week, and was exercising liberal extended visits with the children. Additionally, Juan had moved to live with his mother in Southern California; and as a result the restraining orders were no longer an issue.
By contrast, the evidence showed that Sylvia had not participated in multiple parenting classes, had been terminated from her substance abuse treatment program, and had not participated regularly in a domestic violence support group. The improvements in Juans life contrasted with the deterioration of Sylvias situation, demonstrated by clear and convincing evidence a sufficient change in the circumstances to support the petition.
This respective performance by the parents also served as proof that placing Joel with his father would be in his best interest. Joels behavior in school improved when his father was involved and Joel expressed a desire to be with his father. On the other hand, when Joel lived with Sylvia he "appeared disheveled, extremely agitated, frightened, very hungry and disorganized emotionally." Despite this emotional state, Sylvia failed to comply with the childrens counseling order and they were terminated from the program. Viewed together, these factors provided clear and convincing evidence that the change in custody was in Joels best interest. The juvenile court did not abuse its discretion in ordering the change.
Concluding, as we do, that the section 388 petition was properly granted, we need not address the mothers contention that the court improperly changed the childrens placement solely on the basis of a section 364 contested hearing.
Finally, the mothers contention that the petition was insufficient because it did not allege that she was unfit is also without merit. By failing to raise this issue at the trial court, she waived it on appeal. (In re Shelley J. (1998) 68 Cal.App.4th 322.) Her statement that she didnt agree with the petition was not sufficient to preserve the issue for appeal. Additionally, her fitness or unfitness as a parent is not relevant to the fathers burden on a section 388 petition. He needs only allege and show a change in circumstances and that the change is in the childs best interest. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
The Juvenile Court did not Abuse its Discretion in Accepting the Social Worker as an Expert Witness on Risk Assessment
The mother next contends that the juvenile court erred in qualifying the social worker as an expert on Risk Assessment. Evidence Code section 720, subdivision (a), which governs qualification of an expert "allows a witness to testify as an expert `if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (People v. Chavez (1985) 39 Cal.3d 823, 828.)
Here, the voir dire of the social worker revealed that she had a masters degree in clinical psychology and had worked as a social worker for the Department for more than a year. During her term, she had supervised the cases of approximately 20 families. Additionally, prior to joining the Department she had worked in several positions as a drug and alcohol counselor where she did risk assessment as part of her job. During voir dire the mother did not ask any questions relating to the social workers qualifications, but objected generally to her being qualified as an expert on risk assessment. The trial court found the social worker qualified as an expert in risk assessment. "A trial court has discretion to determine whether a proposed witness is qualified to testify as an expert under [Evidence Code section 720], and this determination will not be disturbed absent an abuse of discretion. [Citation.]" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1421.) Such abuse of discretion will be found only where "`"the evidence shows that a witness clearly lacks qualification as an expert . . . ." [Citation.]" (People v. Chavez, supra 39 Cal.3d at p. 828.) "[A]n experts qualifications `must be related to the particular subject upon which he is giving expert testimony. Qualifications on related subject matter are insufficient. [Citations.] [Citation.]" (Ibid.) Despite the mothers contention on appeal that the social workers prior risk assessment experience in the fields of drug and alcohol abuse was not relevant to the domestic violence issue presented here, the social workers testimony regarding her experience in the subject matter of risk assessment remains uncontroverted in the record. We find no abuse of discretion in the courts determination.
The Juvenile Court Properly Allowed the Mother to Represent Herself
Although Sylvia chose to exercise her right to represent herself in the dependency (In re Justin L. (1987) 188 Cal.App.3d 1068), she now contends that the juvenile court erred by depriving her of her statutory and constitutional due process right to counsel. Sylvia asserts the court did not take a knowing and intelligent waiver of counsel from her. In In re Brian R. (1991) 2 Cal.App.4th 904, we found that a father who had effectively waived counsel had not been denied his right to counsel by the trial court. (Id. at pp. 919, 921-922.) In that case we concluded that where the juvenile court admonished that dependency cases involved "significant rights," warned about the "`dangers and disadvantages of self-representation," and suggested that the father "`talk to a lawyer," the fathers waiver was effective. (Id. at pp. 920-922.)
Here, the juvenile court did no less. When Sylvia first expressed her desire to relieve appointed counsel so that she could retain private counsel, the court granted her a continuance and warned her to retain someone who was familiar with the dependency law. When she appeared on the date of trial without a lawyer, the court again admonished her that "this is a very serious matter before the court. And you need to know that if you are going to go forward without a lawyer that youre taking a big chance." The court explained that she had a right to represent herself, but went on to advise the mother that the rules of evidence are very complicated and that is why people have lawyers who are trained in the law. The court also advised the mother about potential serious consequences of the proceedings, including placement and visitation decisions and potential termination of her parental rights. These admonitions and advisements were sufficient to render her waiver effective.
Sylvia lastly contends that the juvenile court deprived her of her right to a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 to determine if appointed counsel should be replaced by other appointed counsel. This contention is not supported by the record. At the hearing where she expressed her desire to retain counsel, she made no indication that the reason she wanted private counsel was because she was dissatisfied with current counsels performance. She indicated that she had a particular private attorney in mind, but did not identify any problems with her current appointed counsel. Therefore, the court had no obligation to conduct a hearing regarding whether she was entitled to another appointed counsel. (Id. at p. 123.) The juvenile court committed no error in allowing Sylvia to represent herself.
DISPOSITION
The order appealed from is affirmed.
WE CONCUR: PREMO, J. and BAMATTRE-MANOUKIAN, J.