Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Nos. 509228 & 509229. Nancy B. Williamsen, Commissioner.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
In this dependency case, the juvenile court terminated reunification services to appellant father I.R. after an 18-month review hearing. He argues that he was denied due process of law when compelled to share an interpreter with the mother during a portion of the hearing. We will assume error but conclude it is harmless, since the record leaves us confident, beyond a reasonable doubt, that the outcome would have been the same even if the parents had had separate interpreters at all times. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
The Stanislaus County Community Services Agency (the agency) filed a juvenile dependency petition, accompanied by a detention report, regarding 22-month-old M.R. and his brother, 11-month-old E.R., on June 2, 2006. The agency followed up with a jurisdiction/disposition report on June 15, 2006.
In the petition and reports, the agency alleged that I.R. had physically abused the mother, A.G., on numerous occasions. I.R. had been deported to Mexico a number of times after domestic violence incidents, and A.G. had used battered-women’s shelters several times. I.R.’s criminal record included misdemeanor convictions of inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), battering a peace officer (Pen. Code, § 243, subd. (b)), and resisting arrest (Pen. Code, § 148).
In 2005, while A.G. was pregnant with E.R., she responded to the father’s physical abuse by holding a knife to the throat of M.R. and asking how he would feel if she hurt him. This was to make the point that, by hitting A.G., I.R. was hurting their unborn child. In May 2005, when A.G. was eight months pregnant, a dispute arose between I.R. and A.G. while the family was riding in their car, and I.R. threatened to crash the car and kill them all.
In June 2005, E.R. was born with spina bifida and hydrocephalus. Three months later, A.G. attempted suicide, resulting in a referral to the agency. In December 2005, doctors treating E.R.’s spina bifida found two broken ribs in an x-ray and made a second referral to the agency. A.G. claimed the fractures might have happened when E.R.’s car seat was not properly secured and turned over with E.R. inside. A doctor opined that this was not a reasonable explanation of the fractures.
The agency received two more referrals on March 3, 2006, one regarding a bite mark on E.R.’s arm and another regarding fingertip-shaped bruises on either side of E.R.’s mouth. When questioned, A.G. said she wasn’t certain, but believed I.R. had bitten the child. I.R. denied it. A.G. also said I.R. had been preventing her from taking E.R. to therapy sessions for his spina bifida, without which he would not make progress. One of these referrals also apparently included a report of a second suicide attempt by A.G. in February 2006. In an additional referral on April 12, 2006, medical personnel expressed concern that E.R. was not making the progress he should have been making; appointments had been missed; and it was not clear that the parents had been putting E.R.’s braces on his legs. When interviewed, A.G. said she missed the appointments because she had had surgery. She also said she had a restraining order against I.R. and was divorcing him, but was continuing to live with him in spite of this because she needed help with the children.
During a home visit on May 5, 2006, an agency staff person observed holes in the walls and broken windows. A.G. said some of the windows had been broken by I.R. She said I.R. had last hit her around April 22, 2006.
Finally, on May 30, 2006, E.R.’s doctors made a referral to the agency reporting a new rib fracture. The next day, the agency contacted both parents, who said they did not know what caused the new fracture. The parents had spent the previous night together. The house still had broken windows. One window had a triangular piece of glass 15 inches long hanging from the top of the frame. The children were removed and taken to a foster home. The agency filed the dependency petition shortly afterward. As filed, the petition was based on Welfare and Institutions Code section 300, subdivisions (a), (b), and (e) (serious physical harm, failure to protect, and severe physical abuse), but the agency withdrew the subdivision (a) and (e) claims at the jurisdictional/dispositional hearing.
The court issued orders giving the agency temporary custody on June 5, 2006, and sustained the dependency petition on July 13, 2006. It ordered reunification services for both parents. Reunification services continued after review hearings on September 15, 2006, December 8, 2006, March 23, 2007, and June 1, 2007.
In its 18-month review report filed November 16, 2007, the agency recommended terminating reunification services to the father while continuing them for 60 days for the mother to allow time for a psychological evaluation of her. The father had been arrested on September 10, 2007, on charges of kidnapping and falsely imprisoning the mother. According to the sheriff’s report, I.R. appeared at the family’s house as A.G. was preparing to leave with friends to attend an event at a radio station. I.R. insisted that A.G. go to the event with him instead so they could talk about the children on the way. A.G. declined. I.R. pulled A.G. out of the friend’s car, carried her to his car, forced her inside, and drove away. He later left her at a bus stop. With the help of his cell phone company, police traced I.R. to the agency’s building, where A.G., having traveled there by bus, was visiting with the children. The agency’s report states that, after his arrest, I.R. was deported to Mexico, but then illegally reentered the United States.
I.R. completed most of the programs in his reunification plan, including parenting and domestic-violence programs. He had been testing negative for drugs and alcohol, participating regularly in individual counseling, and behaving appropriately during visits with the children. In spite of this, the agency concluded that he had made “no progress.” He minimized the importance of the kidnapping. Like A.G., he continued to deny any knowledge of the cause of E.R.’s second rib-fracture incident and continued not to have any reasonable explanation of E.R.’s other injuries. He remained manipulative and controlling. One of his counselors opined that he presented a moderate risk of future violence.
The 18-month review hearing took place over three days, February 6, 7 and 11, 2008. Accepting the agency’s recommendation, with which A.G. agreed, the court terminated reunification services to I.R. and continued the hearing with respect to A.G.
DISCUSSION
I.R. and A.G. speak Spanish and used interpreters throughout the proceedings. I.R. claims he was denied due process of law when he shared an interpreter with A.G. during portions of the 18-month review hearing.
The parties agree that, although no authority expressly says so, parents in juvenile dependency proceedings have a right to a court-appointed interpreter, just as a criminal defendant does. They disagree about whether each party in a dependency proceeding must at all times have his or her own interpreter, which is evidently a question of first impression. We will assume without deciding that, as a matter of constitutional due process, I.R. and A.G. were entitled to separate interpreters. We will proceed directly to the question of whether the failure to provide separate interpreters is reversible or harmless error here.
The father contends that failing to provide separate interpreters for the entire hearing is ground for reversal unless we can say beyond a reasonable doubt that it did not affect the outcome, the standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). The agency says we should follow Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, in which the Court of Appeal took the novel position that, in dependency cases, constitutional error is reversible unless clearly and convincingly harmless. The father cites In re Mark A. (2007) 156 Cal.App.4th 1124, which rejected the Denny H. approach and applied the Chapman standard. For the sake of argument, we will assume that the error must be harmless beyond a reasonable doubt to avoid reversal. As we will explain, here the record shows the error (assuming it was error) was harmless under this standard.
The record shows that only one interpreter was present at the beginning of the first day of the hearing. After the first witness, I.R.’s counselor Fernando Granados, was sworn, I.R.’s interpreter interrupted to say that A.G. had no interpreter:
“THE INTERPRETER: Your Honor, I have been informed she also needs an interpreter. I didn’t realize that.
“THE COURT: Yes, both parents need interpreters.
“THE INTERPRETER: She informed the interpreter that she was able to hear me although I was concentrating mainly on the father.
“THE COURT: I think that might be problematic if the father goes to testify, but he has his written offer of proof so we’ll go ahead and proceed.”
No one objected. I.R.’s counsel proceeded to examine Granados, who testified that I.R. had completed a course of parenting classes and participated in individual counseling with him. He said I.R. understood and applied the parenting classes and benefitted from the counseling sessions. Granados never received any direction from the social worker assigned to the case to focus on the failure to explain E.R.’s injuries. The agency’s counsel cross-examined Granados. She established that he was aware of the injuries and that I.R. had opportunities in counseling sessions to explain how the injuries happened, but never did explain. Granados could not remember whether he wanted, sought, or received direction from the social worker about what issues to focus on with I.R. He did, however, understand that “safety issues surrounding [I.R.’s] care of [the] children” was one of the areas he was to work on, and he did, in fact, work on it. After being questioned about the kidnapping and an incident in which I.R. slapped A.G. during a visit with the children, Granados conceded that, in spite of the benefits I.R. has gained from the classes and counseling, Granados was still concerned about I.R.’s poor judgment and insight, controlling behavior, and defiance of restraining orders.
As I.R.’s counsel began a redirect examination, a second interpreter arrived and began translating for the mother. Granados completed his testimony. The only other witness that day was the father.
The parties agree that two interpreters were present for all of the second day of the hearing, February 7, 2008. I.R. was the only witness that day.
Two social workers, Karina Castillo and Rocio Rocha, testified on the third day of the hearing, February 11, 2008. The record is ambiguous about whether the parents had separate interpreters that day. The list of those present described at the beginning of the transcript includes “Spanish Language Interpreter for Mother and Father.” Similarly, in stating orally who was present, the court said, “both parents have the assistance of Spanish language interpreter.” The court’s minute orders for the day list two interpreters, named Lara and Fierros, but there is no indication of whether these interpreters were present and translating at the same time, or, rather, in sequence, with one relieving the other at some point in the hearing.
Castillo testified that she discussed E.R.’s injuries with Granados and told him it was very likely the court would not return the children to the parents if they failed to give a reasonable explanation of those injuries. She had similar conversations with I.R. himself. Rocha also testified that she told the parents reunification was unlikely absent an explanation of the injuries. After Rocha’s testimony was completed, counsel made closing arguments.
Given the ambiguous record, we will assume there was only one interpreter on the third day of the hearing as well as during the first portion of Granados’s testimony on the first day. Even so, any error was harmless beyond a reasonable doubt. In deciding to terminate reunification services, the court found that returning the children to either parent would create a substantial risk of detriment to the children; it rejected the claim that reasonable reunification services had not been provided.
I.R. has pointed to nothing in the transcript of the hearing which, but for the lack of a separate translator, could have cast doubt on these findings or on the outcome. For example, I.R. argued in the juvenile court that he did not receive reasonable services because Granados was not explicitly told that the unexplained rib fractures were a crucial obstacle to reunification. Yet he offers no explanation of how, if he had had his own interpreter, he could somehow have turned Granados’s testimony on this point to greater advantage.
I.R. claims he might have been deterred from conferring privately with his attorney by the lack of a separate translator, since he and his wife were in an adversarial posture in the case. There is no record, such as a request for a pause in the proceeding, to reflect that he ever wanted to do this. Further, there is no reason to think he, his attorney, and the interpreter would not have been allowed to step away from the mother if he had wished to do it. To the contrary, I.R. did speak up twice to interject comments during the portion of Granados’s testimony when there was only one interpreter, indicating that he was willing and able to make himself heard, and could have done so if he had wanted a private conference with his attorney.
On one occasion, I.R. said “No” after his counsel asked Granados if he had been working with I.R. for over 18 months. On the other, I.R. said, “It was more than that” after Granados testified that there had been more than five individual counseling sessions.
Further, the basic facts on which the court’s determination was based were powerful. Over a year after the children were removed—a year during which I.R. completed an anti-domestic-violence program—he kidnapped A.G. after an argument about the children, then went to the children’s location where he was arrested. These facts played a large role in the court’s decision. In its oral ruling, it said:
“What is also very disturbing is that although there’s been discussion that dad successfully completed the 52-week domestic violence class, that is not how the court reads the documents that have been provided. He completed the 52-week domestic violence class, he completed it, but the recommendation was that he continued to be at high risk to reoffend, and that’s in August of ’07. And then one month later, he reoffends. So that substantial risk of detriment continues to exist.”
In arguing that he was prejudiced, I.R. discusses a criminal case, People v. Rodriguez (1986) 42 Cal.3d 1005, in which two codefendants shared an interpreter for part of the preliminary hearing and part of the trial. (Id. at pp. 1009-1010.) The failure to provide separate interpreters throughout the proceedings was error, which the Supreme Court analyzed under the beyond-a-reasonable-doubt standard of prejudice. (Id. at p. 1010.) The error was harmless under this standard. “[N]othing in the record shows that at any point while [the defendants shared an interpreter], either defendant’s ability to communicate or comprehend was impeded.” Further, in spite of “generalized assertions that their defenses were at odds because the underlying conduct of which each was accused was so different,” they could point to “neither an actual nor a potential specific conflict in their defenses.” (Id. at p. 1014.)
I.R. argues that Rodriguez points to reversal in his case because, unlike the record there, here the record adequately shows a conflict between the parties who shared an interpreter. He says he and A.G. had an “actual conflict” because “[t]hey held adversarial positions concerning the [agency’s] recommendation that [I.R.’s] services be terminated. At the contested hearing, [I.R.] objected to the [agency’s] recommended findings and orders that his services be terminated and requested the return of his children.… [A.G.], however, agreed with the [agency’s] recommendation to terminate services to [I.R.].” We are not persuaded. The sole basis for the asserted conflict between the positions of A.G. and I.R. was A.G.’s counsel’s statement that A.G. “agrees with the recommendation to terminate services to father.” There was no dispute about the essential facts. I.R. did not deny that he kidnapped A.G. and that both parents continued to be unable to account for E.R.’s injuries. The fact they desired different outcomes is not, by itself, enough to raise a reasonable doubt about whether sharing an interpreter for part of the hearing prejudiced I.R. Without more than this, Rodriguez supports affirmance in this case.
I.R. also cites People v. Resendes (1985) 164 Cal.App.3d 812, 814, in which this court reversed a criminal conviction because, with the parties’ agreement, the court had a single interpreter translate through earpieces for two defendants. The parties also agreed that if either defendant wished to communicate privately with his attorney at any point, he should raise his hand, and the court would stop the proceedings to permit the interpreter to translate the private conference. (Id. at pp. 815-816.) Applying an “informed speculation” standard of review (id. at p. 815), we identified two bases for a finding of prejudice. First, the procedure of raising a hand to request a private conference could significantly inhibit attorney-client communication. There was a risk that using the procedure would alienate the judge or jury. (Id. at pp. 816-818.) Second, if called upon for private conferences by both defendants, the interpreter would be implicated in a conflict of interest. Even if the interpreter could be counted on not to reveal confidential information, fear that he would do so could chill a defendant’s exercise of his right to confer with counsel. The lack of any record or even any allegation of any defendant’s wish to have a private conference did not show that there was no prejudice. (Id. at pp. 818-819.) I.R. argues that this case parallels Rodriguez both with respect to the dangers of interruption and with respect to a conflict between the parties sharing the interpreter.
Although we suggested in People v. Resendes, supra, 164 Cal.App.3d at page 815, and in People v. Rioz (1984) 161 Cal.App.3d 905, 913, that this standard is not the same as the beyond-a-reasonable-doubt standard of Chapman, this is not correct. When, in the context of joint counsel, our Supreme Court first employed this standard, it cited federal case law in which the informed-speculation and reasonable-doubt labels were used interchangeably. (People v. Chacon (1968) 69 Cal.2d 765, 776, fn. 3.) In any event, the court made clear in People v. Rodriguez, supra, 42 Cal.3d at page 1010, that the beyond-a-reasonable-doubt standard is the correct one in criminal cases where failure to provide adequate interpreting services is claimed.
It is not clear whether Resendes is valid law after Rodriguez. The Supreme Court in Rodriguez declined to find prejudicial error absent record evidence of an inability to comprehend or communicate or of a specific basis for imputing a conflict of interest. We reversed without finding that kind of record in Resendes. To the extent the Rodriguez approach is inconsistent with that in Resendes, we are obliged to follow Rodriguez and disregard Resendes.
In any event, we believe the present case more closely resembles Rodriguez. As in Rodriguez, here two parties shared an interpreter for part of a proceeding, and the claim of prejudice is based on a record in which there is no suggestion of an inability to comprehend or communicate, and no specific basis for finding a conflict (except the mother’s hope that the father would lose). This was not enough to show prejudicial error under the Chapman standard in Rodriguez and it is not enough to do so here.
We are able to conclude beyond a reasonable doubt that the outcome would not have been different if there had been separate interpreters for the parents for the entire hearing. In light of that conclusion, we do not consider the agency’s argument that I.R. forfeited his claim because he made no objection on this issue before the trial court.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Dawson, J., Hill, J.