Opinion
D051250
4-18-2008
In re NATE T., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.T. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
R.T. and I.T. (together the parents) appeal jurisdictional and dispositional orders declaring their son, Nate T., a dependent child of the juvenile court and removing him from their custody. The parents contend that the court erred by finding the allegations of the petition to be true. I.T. also maintains that the court violated his rights by not conducting a hearing on his request to represent himself; that the court improperly delegated to the social worker its duty to determine contact and visitation; and that the evidence is insufficient to support the removal order. R.T. asserts that the court violated the parents due process rights and acted in excess of its jurisdiction by allowing the social worker to testify by telephone. Each parent joins in the contentions of the other.
FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of 17-year-old Nate under Welfare and Institutions Code section 300, subdivision (c), alleging that Nate has a mental/emotional disorder and that he engages in aggressive behaviors toward himself and others. The petition further alleged that Nates disorder requires mental health treatment, which the parents failed and/or had been unable to perform.
The parents immigrated to the United States from Russia before Nate was born. Nate was diagnosed with autism at a young age. School personnel reported that his behavior had deteriorated since 2002. The social worker reported that the school district had requested that Nate submit to a mental health assessment, but that the parents did not comply with the request. Nate was a client of the Regional Center, but the parents refused most services. I.T. reported that Nate had been hospitalized several times at the Children and Adolescent Psychiatric Services (CAPS) facility at UCSD. I.T. believed
that medication Nate received while at CAPS had exacerbated his behavioral problems. Nate began to have seizures.
When the social worker arrived at the family home on December 4, 2006, Nate had bitten the bodyguard the family had hired to protect them from Nate. The bodyguard had a three-inch long bleeding wound. The parents had put Nate in arm and leg restraints and said that Nate had asked to be placed in the restraints. Both the family and school personnel reported that Nate scratched himself.
The court made a prima facie finding on the petition and detained Nate with the parents. The court ordered the parents not to use restraints, and ordered a physical and psychological examination for Nate.
The social workers reported that Nate had attended school intermittently, that he had gone to hospital emergency rooms for Penal Code section 5150 evaluations on several occasions, and that he sometimes ran away from home. The parents did not follow through with referrals that medical personnel provided after emergency room visits. The social worker reported that between June 2005 and March 2007, Nate had been hospitalized 11 times, and that the parents had not followed through with medical advice after he was released. The parents disagreed with recommendations by school personnel that Nate be placed in special education classes. In addition, the parents would not consent to Nate being given psychotropic medication that had been prescribed to prevent his seizures.
The record for Nates admission to CAPS in September 2005 states: "[m]edications have not been able to be increased to therapeutic levels for sufficient amounts of time due either to patient noncompliance or parental interference." After Nate was discharged from the September 2005 stay in the hospital, he had to be readmitted to CAPS several times because of his dangerous and assaultive behavior. When Nate was released, the family refused CAPS staff support, follow-up or placement. Nate was at an adult residential facility in February and March 2007, and was admitted to CAPS again on March 28, 2007.
The psychologist who evaluated Nate, as ordered by the juvenile court, wrote that Nate had severe violent tendencies and suggested that he be removed from his parents home immediately and placed in a hospital setting, with a fully controlled environment.
On April 3, 2007, at a special hearing, the court denied I.T.s request to represent himself at the jurisdictional hearing. Instead, the court appointed new counsel to represent I.T.
At the jurisdictional and dispositional hearings in June 2007, after receiving documentary evidence, hearing testimony and accepting the offer of proof that if Nate were called to testify, he would state that he wanted to live with the parents, the court found the allegations of the petition true by clear and convincing evidence. The court ordered that Nate be removed from the parents custody and placed in a licensed group home.
On November 5, 2007, Nate turned 18. He was subsequently ordered committed to the Department of Developmental Services for placement at a developmental center. The Agency recommended that the juvenile court terminate jurisdiction, since there was no longer a protective issue. At a hearing on February 26, 2008, while this appeal was pending, the juvenile court granted the request and terminated juvenile court jurisdiction. On March 3, on its own motion, this court took judicial notice of the juvenile courts order and invited counsel to submit letter briefs addressing why this court should not dismiss the appeal as moot. The Agencys counsel requested that the appeal be dismissed, but counsel for R.T. and I.T. asked that we address the merits of the issues. After considering the letter briefs, we conclude that we should address the merits. Termination of dependency jurisdiction does not extinguish various potential consequences that could attach to R.T. and I.T. from the initiation of the proceedings and the true finding in this case. (e.g., Pen. Code, §§ 11169, 11170; Miller v. California (9th Cir. 2004) 355 F.3d 1172, 1177 [Under Californias Child Abuse and Neglect Reporting Act, child protective agencies are required to forward child abuse reports, except unfounded reports, to the Department of Justice, which then maintains an index of such reports]; Health & Saf. Code, § 1596.877 [childrens day care licensing].)
DISCUSSION
I
The parents contend that there is not substantial evidence to support the findings under section 300, subdivision (c).
A reviewing court must uphold a juvenile courts findings and orders if there is substantial evidence in the record to support them. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also . . . view the record in the light most favorable to the orders of the juvenile court. " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show that the evidence is insufficient to support the courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Section 300, subdivision (c) provides in part that a child who comes within the following description may be adjudged a dependent child of the court:
"The child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent . . . ."
Juvenile court intervention is warranted "when the child is suffering serious emotional damage due to no parental fault or neglect, but the . . . parents are unable . . . to provide adequate mental health treatment. (In re Shelly J. (1998) 68 Cal.App.4th 322, 329.)
There is substantial evidence to support the findings that Nate was suffering serious emotional damage while in the custody of his parents, as demonstrated by his aggressive behavior directed both toward himself and others, and that the parents were unable or unwilling to allow him to be treated on an ongoing basis. Nate scratched and hurt himself, and acted violently toward others despite having undergone many hospitalizations and Penal Code section 5150 evaluations. According to medical experts, Nate needed a controlled setting where he could be provided with treatment, but the parents refused to consent to such treatment. In 2006, Nates treating outpatient psychiatrist at CAPS reported that the parents were unable to see that Nate had problems that were too difficult for them to manage. The psychologist who performed a court-ordered evaluation of Nate recommended that he be removed from the parents immediately and be placed in a hospital setting with a fully controlled environment. This psychologist opined that a cooperative group effort was essential to Nates well-being, and noted that the parents had refused to authorize an assessment of Nate that the school district had recommended, stating, "the parents refused this assessment, strongly believing that a mental health component was not significant in the understanding of Nates challenges." The psychologist stated that at the present time, Nate posed a danger both to himself and to others.
There is substantial evidence supporting the courts finding that the parents repeated failure to provide the care that Nate required caused him to continue to act out aggressively. The parents attempted to care for Nate at home, but Nate fought with family members to the extent that the family felt it necessary to hire a bodyguard to help them. Unfortunately, the bodyguard was not equipped to handle Nate. Nate had bitten and scratched him, and despite the presence of the bodyguard, the parents had to use tethers and shackles in attempting to restrain Nate. R.T. said she sometimes had to tie Nate to a chair because he attacked, snapped, bit and scratched, and ran away. The parents were not able to care for Nate on their own, and medical professionals did not agree that Nate should receive various treatments that the parents recommended or requested.
I.T. argues that the court did not make a clear finding of neglect. However, the court did find that the allegations in the petition under section 300, subdivision (c) were true, by clear and convincing evidence, thus making the required finding, as stated in section 300, subdivision (c), that Nate was suffering "serious emotional damage" and that the damage was "the result of the conduct of the parent." There is substantial evidence to support these findings.
II
I.T. asserts that there is not substantial evidence supporting the order removing Nate from the parents custody. He argues that the court should have ordered voluntary services, or ordered that Nate be placed with the parents, with family maintenance services. R.T. joins I.T.s arguments.
The court may not remove a child from a parents custody under section 361, subdivision (c)(1) unless the court finds by clear and convincing evidence that:
"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 minors physical health can be protected without removing the minor from the minors parents . . . physical custody." (§ 361, subd. (c)(1).)
A juvenile court is not required to wait until a child is actually hurt before ordering the child removed from the parents. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The purpose of the statute is to avert harm to the child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
There is substantial evidence to support the removal order. All of the medical professionals, as well as the psychologist and the social workers, recommended that Nate be placed out of the family home. One social worker testified that the Agency had offered maintenance services to the family before Nate was removed, but the reports showed that the family did not comply with services, and that they availed themselves of previous service referrals only to a small degree. The parents wanted to use treatments that the medical professionals did not consider to be safe for Nates condition. At times, the parents refused to authorize the people who were providing services for Nate to communicate with one another. The parents did not give Nate his prescribed medication to control his seizures on a consistent basis because they disagreed with the psychiatrists prescriptions and advice. Their efforts to care for Nate at home led to dangerous behavior that required law enforcement interventions, Penal Code section 5150 evaluations, and hospitalizations. The courts findings that there was substantial danger to Nates mental health in the parents care, and that he required a higher level of care, are supported by substantial evidence.
III
The parents contend that the court denied their right to visitation and contact with Nate by erroneously delegating to the social worker the authority to determine visitation. However, in light of the jurisdictional and dispositional orders, any possible error regarding the courts delegation of decisions regarding visitation and contact is moot. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.)
IV
I.T. contends that the court prejudicially erred by denying his motion to represent himself, and that the court used the wrong standard in denying the motion.
A parent has a statutory, rather than a constitutional, right to represent himself or herself in a dependency proceeding. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1080.) Contrary to I.T.s assertions, a full hearing according to Faretta v. California (1975) 422 U.S. 806 was thus not required. It appears from the record on appeal that the court carefully considered I.T.s request to represent himself and denied the request on the basis of the psychological impact on Nate of having his father question and cross-examine him. I.T. has not shown that the denial of his request caused him prejudicial error.
V
R.T. asserts that the court acted in excess of its jurisdiction and violated her right to due process by allowing the social worker to testify by telephone. She argues that the error was structural in nature and affected the very framework of the trial. I.T. joins her argument.
Even assuming, without deciding, that the court erred in allowing the telephonic testimony, we conclude that any error was not structural in nature, and was harmless under any standard of review.
In In re James F. (2008) 42 Cal.4th 901, 915, 917-919, the California Supreme Court determined that error in the procedure used in appointing a guardian ad litem for a parent in dependency proceedings was not structural, and was amenable to harmless error analysis. The court noted that "juvenile dependency proceedings differ from criminal proceedings in ways that affect the determination of whether an error requires automatic reversal of the resulting judgment," and that the rights and protections afforded parents are not the same as those afforded to criminal defendants. (Id. at p. 915.) The court cautioned,
"These significant differences between criminal proceedings and dependency proceedings provide reason to question whether the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases." (Id. at pp. 915-916.)
The court further noted,
"We cannot agree with the Court of Appeal majority that prejudice is irrelevant in a dependency proceeding when the welfare of the child is at issue and delay in resolution of the proceeding is inherently prejudicial to the child." (Id. at p. 917.)
In In re Celine R. (2003) 31 Cal.4th 45, 59, our state Supreme Court noted that a harmless error analysis was appropriate in a case where the juvenile court failed to appoint separate counsel for siblings. The court observed that equating juvenile dependency cases with criminal cases is inapt because, among other reasons, in a criminal case reversal is virtually always in the defendants best interests, while the situation in a dependency case may be quite different. For example, reversal of an order of adoption might be contrary to the childs best interest because it could delay permanency for the child, and possibly even prevent the adoption. (Ibid.)
In this case, the juvenile courts determination to allow one of three social workers to testify by telephone, rather than requiring her to be physically present in the courtroom, was not structural error, but rather, is subject to a harmless error analysis. R.T.s counsel stated that she had no objection to the telephonic testimony because the witnesses were testifying in a professional capacity. Although I.T. objected to the social worker testifying by telephone, he did not state any basis for the objection, and the court found good cause to allow the testimony. The parents had the opportunity to cross-examine the social worker, who was only one of several social workers who provided testimony. In these circumstances, we conclude that any error in allowing this social worker to testify by telephone was not structural, but rather, is subject to harmless error analysis.
Under the California Constitution, a court may not set aside a judgment unless the error has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) The California Supreme Court has interpreted this language to mean that reversal is permitted "only if the reviewing court finds it is reasonably probable the result would have been more favorable to the appealing party but for the error." (In re Celine R., supra, 31 Cal.4th at p. 60.)
Any possible error in allowing telephonic testimony in this case was harmless, under any standard of review. The social worker who testified by telephone was the first social worker to have been assigned this case. She testified in accordance with her written reports. In her brief testimony, under cross-examination by I.T.s counsel, the social worker stated that I.T. had told her that during 2006, Nate had been hospitalized in a psychiatric hospital a number of times, that he was given medication, and that I.T. believed one of those medications did not agree with Nate and caused him to have seizures. The social worker said that she did not know whether the psychiatrist who prescribed the medication had made any subsequent changes to the prescription. She testified that she understood Nate had made at least one suicide attempt in 2005, but said she had no further information about that. She said that I.T. had shown that he was very concerned about Nate, and that she had decided to recommend that Nate stay with the parents when she was the social worker on the case because even though she believed he was a danger to himself and others, at the time she did not know of another good place for him to go. She said she was more concerned about neglect than abuse, and Nate seemed safe enough at home at the moment. On direct examination, the social worker testified that she was assigned to the case in late 2006 and that a short time after she filed the detention report, the case was transferred to another social worker. Under cross-examination by minors counsel, the social worker testified that Nate had shown aggression toward the bodyguard the parents had hired, and said that it was her understanding that the parents sometimes used restraints on Nate.
There is no indication that the social workers testimony would have been any different if she had testified in person, and there is no suggestion that her credibility was in question. Any possible error in allowing her to testify by telephone was therefore harmless, under any standard of review.
DISPOSITION
The orders are affirmed.
We concur:
HALLER, Acting P. J.
McINTYRE, J.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.