Opinion
A132005 A130637
09-13-2011
In re K.P. on Habeas Corpus. In re K.P., a Person Coming Under the Juvenile Court Law. J.L., Plaintiff and Appellant, v. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. 3437-DEP)
I.
INTRODUCTION
In this appeal and related writ petition, J.L. (mother) challenges the juvenile court's jurisdictional and dispositional orders finding her 15-year-old daughter K.P. (the minor) a dependent child under the provisions of Welfare and Institutions Code section 300, and removing the minor from her custody. Among other issues, mother claims she did not voluntarily and intelligently submit the matter at the combined jurisdictional and dispositional hearing because the court failed to advise her of her procedural due process rights and the consequences of her submission. Mother has also filed a petition for writ of habeas corpus, which we consider with this appeal, claiming she received ineffective assistance of counsel because her counsel submitted the matter "without [mother's] understanding or consent as to the allegations of the petition submitted upon . . . ."
All statutory references are to the Welfare and Institutions Code.
The general rule is that ineffective assistance of counsel claims, including those brought in dependency cases, are properly raised by a petition for a writ of habeas corpus. (In re Paul W. (2007) 151 Cal.App.4th 37, 53; In re O.S. (2002) 102 Cal.App.4th 1402, 1406, fn. 2.)
We agree that the trial court erred by accepting mother's attorney's submission of the case without advising mother of her due process rights and without obtaining her personal, knowing, and voluntary waiver of her rights on the record. Under the circumstances of this case, this error was not harmless and we reverse the juvenile court's jurisdictional and dispositional findings. The issues raised in the writ petition have thus been rendered moot; consequently, the petition will be denied.
II.
FACTS AND PROCEDURAL HISTORY
On September 3, 2010, the Sonoma County Human Services Department (the Department) responded to a call from the minor's high school to investigate an allegation of physical abuse by mother. The minor described the events of the prior evening when mother "had been drinking" and had become angry at the minor. As the minor reported to the social worker, during the argument the minor said "Mom, let's let each other be." The minor then went upstairs to her room and locked the door. Mother followed, yelling at her "God Damn Brat." Mother then unlocked the door and entered the room. She grabbed the minor by the wrists and pushed her down on the bed, holding the minor's upper body on the bed while her legs were off the bed. Mother then hit the minor "hard" on the left side of her head, and then she hit the minor again on the right side of her head. The minor was yelling at mother to get off of her. Mother then grabbed the minor by the cheeks with both hands and started squeezing the minor's face.
The Department's social worker also interviewed the teenage son of mother's domestic partner, who was "in his room across the hall" during the altercation. He confirmed he heard the minor yell, "get off of me." He then went into the minor's room and "saw [the minor] lying with the upper half of her body on the bed and her mother . . . standing over her with her hands on [the minor's] face or neck." He confirmed that mother had been drinking, and he told the social worker that mother "drinks every day." The minor was afraid to go home, and arrangements were made for her to stay with a friend's family pending further investigation.
Ultimately, informal voluntary efforts to return the minor to mother failed; and on October 7, 2010, the Department filed an amended petition claiming the minor came within the provisions of section 300, subdivisions (a) and (b). The petition alleged there was a substantial risk to the minor because "while under the influence of alcohol, the mother . . . physically assaulted the minor." The petition also set forth that mother "has a history of substance abuse" and the minor's maternal half-sibling was born in 2004 with a positive drug screen for methamphetamine. The court conducted a detention hearing on September 22, 2010, and mother was appointed counsel. The matter was set for a jurisdictional hearing.
The Department's report prepared for the jurisdictional hearing indicated that the minor was still residing with her friend's family and did "not want to return home . . . until she knows that things have changed and she feels safe." The minor indicated that mother "drinks every night for the last two years," which causes mother to become defensive and angry. However, the minor acknowledged that the incident on September 2, 2010, was the first time mother had actually hit her.
As for mother, the Department documented her past history of drug use and homelessness, but acknowledged that she "has come a long way," including voluntarily seeking out therapy and attending junior college "to develop further career opportunities." The Department's report states that mother "vehemently denies the allegations" in the petition. In her version of events, mother indicated that the minor "was being rude that day. I sent her to her room. I tried to set limits and she started screaming at the top of her lungs. I grabbed her wrists and held them up and said 'you can't talk to me that way.' I didn't hit her. I had her wrists. I didn't squeeze her cheeks either. I also didn't push her on the bed. She may have been pushed against the wood of the bed, but not down on the bed." Mother denied being under the influence of alcohol that day, indicating she "had two sips of beer." She claimed to have been "clean for five years and ha[s] never relapsed." She admitted having "a glass of wine or beer two to three times a week but this does not make me unable to parent." As for mother's participation in reunification services, which the Department was recommending, mother indicated she "shouldn't have to go through hoops" for "something she did not do."
A judicial settlement conference, with mother in attendance, was conducted on November 22, 2010 at 10:00 a.m. The conference was conducted without a court reporter present, and the declarations submitted in support of and in opposition to the mother's writ petition give conflicting versions of exactly what was discussed at the conference. Whatever transpired, the record reveals a second amended petition was drafted the same day and faxed to mother's counsel at 4:14 p.m.
As noted, the September 2, 2010 incident between mother and the minor had originally had been alleged pursuant to section 300, subdivision (a) as serious physical harm. The second amended petition did not contain any allegations pursuant to section 300, subdivision (a). Instead, it contained an allegation pursuant to section 300, subdivision (b) that the minor was at "substantial risk" that she will suffer "serious physical harm" as the result of mother's physical assault on the minor after consuming alcohol. The second amended petition contains the following description of the physical assault: Mother allegedly committed the assault by "pushing the minor onto her bed and hitting the minor hard on the left side and the right side of her head with her hands, and grabbing the minor by the cheeks with both hands and squeezing the minor's face." The Department added an allegation that B.P., the son of mother's domestic partner, had intervened in the conflict "and pulled . . . mother away from the minor." The petition also alleged that mother had a history of methamphetamine use and addiction and regularly drank alcohol in the minor's presence. It also alleged that the minor's half-brother was born in 2004 with a positive drug screen for methamphetamine.
The parties returned to juvenile court on at 9:00 a.m. on November 23, 2010. The Department's counsel noted, in mother's presence, that the judicial settlement conference was successful, "and as a result, we have provided the Court with a Second Amended Petition, which was by agreement with all parties, and it is my understanding that the mother does desire to participate in reunification services, and that is really wonderful news."
Mother's counsel then said, "Your honor, I think the judicial settlement conference was probably the best one I have ever attended. I felt like people were extremely respectful and heard each other out. And I think my client appreciated the time and the effort that people put into it. [¶] We're prepared to submit, and she is anxious to begin therapy with her child, and hopefully we will have a positive result in this case in the near future."
Neither counsel for mother nor counsel for the Department presented any further argument or evidence to the juvenile court. The court then found that the allegations in the petition were true, and declared the minor to be a dependent child of the court. The court ordered the minor to remain outside of mother's custody and implemented the case plan.
III.
DISCUSSION
On appeal and in her writ petition, mother argues that her trial counsel failed to advise her of the allegations of the second amended petition before her trial counsel submitted the matter. Furthermore, mother claims that if she had known the allegations in the second amended petition, she would not have allowed her attorney to submit on them and instead, she would have asked for a trial on the merits because "[she] did not agree that she had done anything that amounted to child abuse." Additionally, mother points out the record is "devoid" of anything indicating she "knowingly waiv[ed] her due process rights to a trial."
Submitting the matter on the petition in dependency cases is similar to allowing the court in a criminal case to proceed to judgment based on the preliminary examination transcript. (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.)
Although many arguments are made on appeal and in her writ petition, we address only the fact that the juvenile court did not inform mother of her due process hearing rights at the combined jurisdictional and dispositional hearing and did not take express personal waivers of each of those rights as required by the California Rules of Court.
All rule references are to the California Rules of Court.
Rule 5.682(b) requires the court in a jurisdiction proceeding to advise the parent of the right: (1) to a hearing on issues raised by the petition; (2) to assert the privilege against self-incrimination; (3) to confront and to cross-examine all witnesses called to testify against the parent; (4) to use the court process to compel attendance of witnesses on the parent's behalf; and (5) to have a removed child returned to the parent or guardian within two working days after a finding by the court that the child does not come within the jurisdiction of the juvenile court under section 300, unless the parent or guardian and the social agency agree that the child will be released on a later date.
Prior to the parent's admitting any allegations, "the court must first find and state on the record that it is satisfied that the parent or guardian understands the nature of the allegations and the direct consequences of the admission, and understands and waives the rights in [rule 5.682](b)." (Rule 5.682(c).) When the parent admits the allegations of the petition, pleads no contest, or submits to the jurisdiction determination of the court based on the information provided to the court and waives any further jurisdiction hearing, the "Waiver of Rights-Juvenile Dependency (form JV-190) may be completed by the parent . . . and counsel and submitted to the court." (Rule 5.682(d), (e), original italics.) After the admission, plea of no contest, or submission, the court must make findings, which include that "[t]he parent . . . has knowingly and intelligently waived the right to a trial on the issues by the court, the right to assert the privilege against self-incrimination, and the right to confront and to cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the parent or guardian's behalf[.] . . ." (Rule 5.682(f)(3).)
The appellate court in In re Monique T. (1992) 2 Cal.App.4th 1372 (Monique T.), considered the legal effect of a juvenile court's failure to give the required advisements. In Monique T. the mother's counsel submitted the matter for a jurisdictional determination based on the petition and the detention report. (Id. at p. 1375.) Through her counsel, the mother waived reading of the petition at the jurisdictional hearing, with her attorney affirming that she had been advised of her rights " 'to have other evidence presented and to have a contested matter.' " (Id. at p. 1376.) The attorney also waived, on her client's behalf, the court's advisement of the mother's rights and also relayed to the court the mother's intention to " 'submit the matter on the petition.' " (Ibid.)Without requiring a personal waiver by the mother, the juvenile court then said it was " 'satisfied that the mother understands her rights and is voluntarily waiving them.' " (Ibid.)
Division Five of this district concluded it was error for the court to accept a waiver of rights based solely on counsel's representations and not to explain the mother's rights to her or to obtain the mother's personal waiver of her rights as required by the California Rules of Court. (Monique T., supra, 2 Cal.App.4th at p. 1377.) Nevertheless, the court concluded that the juvenile court's omission was subject to a harmless error analysis and found it harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. (Monique T., supra, at p. 1377.) The court reasoned, "The mother was represented, at all stages of the proceeding, by an attorney, who explained her rights to her and who indicated that she desired to waive them. She does not deny this, nor does she claim she was under any kind of pressure to waive the rights. Moreover, the evidence of the mother's inability to care for the child is uncontradicted and the mother does not indicate that she could have offered different or more favorable evidence or witnesses." (Id. at p. 1378.)
Thus, when the instant case was submitted after the judicial settlement conference, the court was obligated to "find that the parent knowingly and intelligently waived [her] rights . . . ; that she understands the nature of the conduct alleged in the petition and the consequences thereof; and that the submission was freely and voluntarily made. [Citations.]" (Monique T., supra, 2 Cal.App.4th at pp. 1375-1376.) Like the court in Monique T., the court in this case failed to fulfill this obligation. The trial court never gave mother the required advisements; it never obtained the required personal and on-the-record waiver from her; and it never made the required finding that she had knowingly and intelligently waived her rights. Furthermore, unlike in Monique T., here there is no indication whatsoever that mother's attorney had explained the allegations in the petition or her rights to her, and there is no express finding by the trial court that mother's submission of the case on the second amended petition was knowing and voluntary. To the contrary, mother has filed a declaration in support of her writ petition indicating that at the time the case was submitted, she had never seen the contents of the second amended petition and that she did not at any time authorize or give her attorney "any verbal or written indication that I would agree to any allegation that I had committed any acts that constituted child abuse against my daughter . . . ."
Mother's declaration indicates she is concerned about being reported under the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.) "because I am currently taking college courses and may wish to pursue a career in nursing." Consequently, "[t]he sustained allegation of child abuse in this case may impede my ability to obtain employment . . . ."
Moreover, we disagree with the Department's assertion that "mother's knowledge and agreement" were implicit in her "active involvement in the judicial settlement conference" and can be "implied from her silence in court the next morning when her attorney expressed her client's appreciation of the judicial settlement conference which directly resulted in the Second Amended Petition . . . ." As was unequivocally held in Monique T., supra, 2 Cal.App.4th 1372, to protect a parent's due process rights, the record must show an express and explicit waiver of rights by the parent and that waiver cannot be inferred from equivocal conduct, such as mother's silence when her counsel submitted the case on the petition. (Id. at p. 1377.)
We also disagree with the Department's assertion that "[e]ven if mother was not expressly advised on the record of her right to proceed to trial . . . mother cannot demonstrate a different outcome would have resulted in light of the overwhelming evidence in support of the Second Amended Petition . . . ." This argument ignores the fact that there was a genuine dispute of fact as to exactly what occurred on September 2, 2010. While mother readily agreed that she had not acted reasonably in grabbing her daughter's wrists and raising her voice, mother consistently denied the allegations made in the second amended petition that she repeatedly struck her daughter. There was no evidence cited in the Department's reports, such as marks on the minor's face or neck, that would cast substantial doubt on mother's version of events. The only eyewitness to the events, the teenage son of mother's domestic partner, has submitted a declaration stating that he did not see mother hitting the minor. Mother was entitled to a trial in this matter to resolve this conflict, and if a trial was waived, there should have been an affirmative showing that mother's submission was voluntary and intelligent under the totality of the circumstances.
Based on this record, we cannot say that the error in failing to advise mother of her rights and receiving a knowing, voluntary and intelligent wavier of those rights was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.)
IV.
DISPOSITION
The jurisdictional and dispositional orders are reversed. Mother's petition for extraordinary relief is denied as moot.
RUVOLO, P. J. We concur: SEPULVEDA, J. RIVERA, J.