Opinion
B316780
02-14-2024
In re VALENTINO G., JR., a Person Coming Under the Juvenile Court Law. v. VALENTINO G., SR., Defendant and Appellant; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff, VALENTINO G., JR., Respondent.
Valentino G., Sr., in pro. per., for Defendant and Appellant. Janelle B. Price, under appointment by the Court of Appeal, for Respondent Valentino G., Jr.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. DK22014 Marguerite D. Downing, Judge.
Valentino G., Sr., in pro. per., for Defendant and Appellant.
Janelle B. Price, under appointment by the Court of Appeal, for Respondent Valentino G., Jr.
No appearance for Plaintiff.
MARTINEZ, J.
INTRODUCTION
Valentino G., Sr. (Valentino Sr.), father of minor Valentino G., Jr. (Valentino Jr.), appeals from the juvenile court's October 19, 2021 order denying his motion under Welfare and Institutions Code section 388. In his motion, Valentino Sr. sought to modify the juvenile court's order from June 25, 2019 appointing Valentino Jr.'s maternal grandparents as legal guardians and terminating jurisdiction. Valentino Sr. alleged the maternal grandmother had died and the grandfather was unable to care for Valentino Jr. alone.
All undesignated statutory references are to the Welfare and Institutions Code.
The juvenile court held a hearing on Valentino Sr.'s motion where he asked the court for permission to proceed in propria persona and dismiss court-appointed counsel. The court denied Valentino Sr.'s request to represent himself after questioning Valentino Sr. on his education and knowledge of the legal standards for dependency proceedings. After several admonishments from the juvenile court, Valentino Sr. was removed from the courtroom for disruptive interjections. The court denied Valentino Sr.'s section 388 motion as contrary to Valentino Jr.'s best interest, noting "the grandfather continues to provide excellent care," Valentino Sr. had sent "threatening" messages to the grandfather and displayed ongoing "anger management issues," and Valentino Sr. had failed to complete reunification services.
On appeal, Valentino Sr. only challenges the court's denial of his request to represent himself at the hearing, and argues this error requires automatic reversal of the juvenile court's order denying his section 388 motion. Although the juvenile court abused its discretion by denying Valentino Sr.'s request for selfrepresentation, under the circumstances of this case, that error was harmless because Valentino Sr. has not demonstrated it is reasonably probable the result would have been more favorable to him without the error.
After Valentino Sr.'s appointed appellate counsel filed a brief, Valentino Sr. moved to represent himself on appeal. This court granted his request on February 1, 2023, and Valentino Sr. was invited to file a supplemental opening brief and granted an extension in which to do so. Valentino Sr. did not file a supplemental opening brief or a reply brief. Accordingly, we address the arguments raised by appellate counsel's brief.
Having encountered the same error in Valentino Sr.'s previous appeal involving Valentino Jr.'s sibling E.G., we emphasize the juvenile court "must respect the right of the parent to represent him[self]." (In re Angel W. (2001) 93 Cal.App.4th 1074, 1084.)
In all events, we affirm the court's denial of the section 388 motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Dependency Proceedings
The Los Angeles County Department of Children and Family Services (the Department) filed a section 300 dependency petition against Valentino Sr. and mother Anne V. in March 2017 alleging, among other grounds, that one-month-old Valentino Jr. suffered an "acute, proximal, spiral femur fracture" to his left leg that would ordinarily not occur absent abuse or neglect. After a combined jurisdiction and disposition hearing, the juvenile court sustained the allegations in the petition, except an allegation of severe physical abuse, and removed him from his parents.
In 2022 the Legislature amended section 300 (Stats. 2022, ch. 832, § 1), effective January 1, 2023, but the changes do not affect our analysis.
Valentino Sr. and Anne received family reunification services, but Valentino Sr.'s participation in services was "partial," and the juvenile court terminated reunification services in November 2018. At a permanency planning hearing in June 2019, the court granted legal guardianship to Valentino Jr.'s maternal grandparents, Jesus V. and Maria V., and terminated its jurisdiction.
Valentino Jr.'s younger sibling, E.G., born during the dependency proceedings, was later detained in separate dependency proceedings.
B. Related Criminal Proceedings
In March 2018, Valentino Sr. pleaded guilty to willful harm or injury to a child (Pen. Code, § 273a, subd. (a)) in connection with Valentino Jr.'s injury and was placed under a 10-year protective order allowing only "peaceful contact" with Valentino Jr. As a condition of sentencing, the superior court ordered: "Do not annoy, harass or molest anyone involved in this case. Do not threaten anyone. Do not use force or violence against anyone."
C. Valentino Sr.'s Section 388 Motion and the Department's Report
In July 2021 Valentino Sr. filed, in propria persona, a section 388 motion seeking to modify the court's order granting guardianship to the maternal grandparents. Valentino Sr. alleged a change of circumstances because the maternal grandmother had died from COVID-19 in December 2020 and the grandfather, Jesus, "is the only one that cares for Valentino Jr. and he works." He asked the court return Valentino Jr. to him and Anne. The juvenile court set a hearing on the motion and directed the Department to prepare a report.
The Department filed its report in October 2021 recommending the court deny the motion and maintain Jesus's legal guardianship. The report contained observations from a home visit with Jesus and interviews with Valentino Sr., Anne, Jesus, and others. In his interview, Jesus stated he was "currently retired and dedicat[ing] all his time to Valentino [Jr.]." Jesus further explained "he met [a] female companion at church and the two made an agreement to help each other out," with the companion helping to "clean the house and babysit Valentino on occasion."
In the Department's report, Jesus also described receiving threatening messages and a threatening visit from Valentino Sr. Jesus provided the Department with threatening text messages Valentino Sr. had sent him. Jesus reported that Valentino Sr. and a friend showed up to Jesus's house on March 31, 2021 "yelling profanities and threatening to take the child." Jesus called the police and later installed "cameras around the home and chains on his fences."
D. Valentino Sr.'s Request for Self-representation at the Section 388 Hearing
At the October 19, 2021 section 388 hearing, Valentino Sr., through counsel, submitted exhibits in support of his motion, including letters of completion for parenting counseling, individual counseling, and anger management. The court admitted the exhibits, but observed that "none of these documents are current .... They are older than three years old.
The court will note them and give them due weight."
At the hearing, Valentino Sr. was represented by a court-appointed attorney. When the Department offered its report for the juvenile court's consideration, Valentino Sr. himself objected. The court admonished Valentino Sr. to let his attorney make objections. Valentino Sr. then asked to dismiss his attorney.
The juvenile court asked whether Valentino Sr. completed high school and college and whether he had gone to law school. The court asked him to describe a hearing under section 366.26 and to state the standard of proof for removal of children from their parent. When Valentino Sr. did not provide satisfactory answers, the court concluded he "did not have a legal background, he was not aware of the standard of proof or the legal proceedings, [so] the court was not going to grant him the ability to represent himself in these proceedings." The court observed "it is not a constitutional right to represent yourself in dependency."
After the court's ruling, Valentino Sr. continued to object. The court issued another admonishment: "if you choose to continue to talk while I'm talking, you will be asked to be excused." Valentino Sr. continued to interrupt the proceedings with frequent objections, asserting "I'm self-representing myself." Describing his conduct for the record, the court remarked, "Mr. [G.] continues to just yell objections." After two more admonishments from the court, Valentino Sr. and Anne were removed from the courtroom.
Anne was likewise removed for interrupting the court proceedings.
The court stated Valentino Sr.'s and Anne's separate attorneys could join their clients in the waiting area and participate in the proceedings remotely, but the parents had left, and their attorneys could not locate them in the court building. The hearing concluded with arguments from Valentino Sr.'s attorney and the Department's counsel.
The juvenile court denied Valentino Sr.'s section 388 motion, finding "[t]he anger management issues that were there at the time this petition was filed continue to exist, based on father's behavior in this courtroom" and "the threatening emails, that the father has sent to the grandfather." The court noted both parents "never completed their programs," with Valentino Sr.'s last participation in programs being in 2018. Finding Jesus "continues to provide excellent care" to Valentino Jr. after the grandmother's death, the court ruled it was "not in this child's best interest to be placed or returned to the parents."
Valentino Sr. timely appealed.
DISCUSSION
Valentino Sr. argues the juvenile court wrongly denied his request to represent himself, and that the court's error was structural requiring automatic reversal. He makes no other argument on the merits of the juvenile court's section 388 ruling. While we agree the court erred, any such error was harmless under the circumstances of this case.
A. Governing Law and Standard of Review
"Section 388 provides for modification of juvenile court orders when the moving party (1) presents new evidence or a change of circumstance and (2) demonstrates modification of the previous order is in the child's best interest." (In re Matthew M. (2023) 88 Cal.App.5th 1186, 1194.) The petitioner has the burden of demonstrating these two factors by a preponderance of the evidence. (See In re J.M. (2020) 50 Cal.App.5th 833, 845.) When the juvenile court has denied a section 388 petition, "[w]e review the court's best interest determination, the second step, for abuse of discretion and may disturb the exercise of that discretion only in the rare case where the court has made an arbitrary or irrational determination." (In re Matthew M., at pp. 1194-1195.)
When a parent requests self-representation in dependency proceedings, "the juvenile court has discretion to deny the request for self-representation when it is reasonably probable that granting the request would impair the child's right to a prompt resolution of custody status or unduly disrupt the proceedings." (In re A.M. (2008) 164 Cal.App.4th 914, 925-926; accord, In re Angel W., supra, 93 Cal.App.4th at p. 1085.) We review a juvenile court's ruling denying self-representation for abuse of discretion. (In re A.M., at p. 927.)
Whether an error is structural presents a question of law we review de novo. (See People v. Quiroz (2013) 215 Cal.App.4th 65, 70; see also In re Christopher L. (2022) 12 Cal.5th 1063 (Christopher L.).)
B. The Juvenile Court Abused Its Discretion By Denying Valentino Sr.'s Request for Self-representation
Valentino Sr. argues the juvenile court erroneously denied his request to proceed without counsel. This court previously determined that Valentino Sr. was denied the right to represent himself in the dependency case involving Valentino Jr.'s sibling, E.G. We agree, once again, that Valentino Sr. was wrongly denied his right to represent himself.
In In re E.G. (Aug. 10, 2020), B302959 [nonpub. opn.], this court determined Valentino Sr. was wrongly denied the right to self-representation in dependency proceedings terminating parental rights as to E.G., but we concluded this error was harmless. (Id. at pp. 5-8.) Valentino Sr. urges us to disregard this prior decision, as it is not "law of the case." Valentino Jr.'s counsel also objects to our consideration of this decision because it is outside of the record in this case. We agree our prior decision in E.G.'s separate dependency case is not law of the case in this appeal.
In a juvenile dependency proceeding, "[s]ection 317, subdivision (b) requires appointment of counsel for an indigent parent or guardian . . . 'unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.'" (In re A.M., supra, 164 Cal.App.4th at p. 923.) This subdivision provides a parent in a dependency case "a statutory right to self-representation." (Ibid.) "[T]he court must respect the right of the parent to represent him or her self as a matter of individual autonomy and avoid forcing the mentally competent parent to proceed with appointed counsel in the guise of protecting a person who is unskilled in the law and courtroom procedure." (In re Angel W., supra, 93 Cal.App.4th at p. 1084.) If a parent requests to proceed without counsel, and "the parent is not using the request to proceed pro se to intentionally obstruct the proceedings," "the court must take a waiver of the right to counsel." (Ibid.) The court should grant the waiver if the parent shows "basic competency either to give a waiver of counsel or to represent herself" (ibid.), meaning "the mental capacity to forgo the right to counsel with an understanding of the probable risks and consequences of such a choice." (In re Justin L. (1987) 188 Cal.App.3d 1068, 1076.)
The juvenile court did not take a waiver of Valentino Sr.'s right to counsel upon his request. Nor did the court assess whether Valentino Sr. was competent to understand the risks and consequences of proceeding in propria persona. Instead, the court assessed Valentino Sr.'s knowledge of the legal provisions and standards, denying him the right to proceed in propria persona because he "did not have a legal background" and did not "know the law." Although Valentino Sr. later grew disruptive of the court proceedings, at the time of his request to forego appointed counsel, he had not displayed disruptive behavior. (See In re Angel W., supra, 93 Cal.App.4th at p. 1085 ["The possibility of disruption or delay . . . exists to some degree with virtually all pro se litigants and the mere possibility alone is not a sufficient ground to deny self-representation."].)
For these reasons, the juvenile court abused its discretion by denying Valentino Sr. the right to proceed without counsel because of his lack of legal knowledge. (See In re Angel W., supra, 93 Cal.App.4th at pp. 1083-1085 [court abused discretion by denying request for self-representation where "the court's comments suggest the court did not recognize appellant had the right to proceed pro se"]; In re A.M., supra, 164 Cal.App.4th at pp. 923-926; cf. Faretta v. California (1975) 422 U.S. 806, 836 [a party's "technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself"].)
C. Harmless Error Analysis Applies
Valentino Sr. argues the juvenile court's denial of his right to self-representation was structural error requiring automatic reversal of the court's order denying his petition. As noted above, we previously rejected similar arguments from Valentino Sr. in 2020 in the appeal involving E.G. (See In re E.G. (Aug. 10, 2020), B302959 [nonpub. opn.].)
Structural error occurs when a court's legal error is "not susceptible to the 'ordinary' or 'generally applicable' harmless-error analysis" because it would "result in a 'miscarriage of justice' . . . requiring reversal without regard to the strength of the evidence received at trial." (People v. Cahill (1993) 5 Cal.4th 478, 493 (plur. opn. of George, J.).) Although the concept of structural error originated in the criminal context, Christopher L. recognized dependency proceedings may also give rise to structural error and examined whether violating a parent's right to counsel constituted structural error under the circumstances presented. (Christopher L., supra, 12 Cal.5th at p. 1075.)
Valentino Sr. cites no authority that in the dependency context denial of a parent's request for self-representation is structural error. Valentino Sr. relies on Christopher L., supra, 12 Cal.5th 1063. In Christopher L., the appellant was incarcerated at the time his children were detained. (Id. at p. 1070.) The juvenile court held a jurisdiction and disposition hearing without the father's presence and without appointing counsel to represent him where it sustained the allegations against the father and denied reunification services. (Id. at p. 1071.) The Court analyzed this scenario using a three-pronged analysis from Weaver v. Massachusetts (2017) 582 U.S. 286, but it concluded that although the juvenile court's error was "serious," it did not constitute structural error. (Christopher L., at pp. 1077-1083.) Christopher L. did not adopt a rule that violating a parent's right to counsel was automatically structural error (id. at p. 1083; id. at p. 1082 ["we decline to adopt a rule of automatic reversal in cases involving the errors that occurred here"]), and it did not disturb prior decisions from the Courts of Appeal analyzing self-representation claims in dependency proceedings for harmless error. (See, e.g., In re A.M., supra, 164 Cal.App.4th at pp. 928-929; In re Angel W., supra, 93 Cal.App.4th at p. 1085.)
We are not persuaded structural error review applies under the circumstances of this case. First, Valentino Sr. relies heavily on self-representation cases decided in the criminal context, but Christopher L. expressly "cautioned against 'import[ing] wholesale, or unthinkingly,' the analysis of structural error from criminal cases," because "'[t]he rights and protections afforded parents in a dependency proceeding are not the same as those afforded to the accused in a criminal proceeding.'" (Christopher L., supra, 12 Cal.5th at p. 1074; id. at p. 1081 ["'the ultimate consideration in a dependency proceeding is the welfare of the child [citations], a factor having no clear analogy in a criminal proceeding'"].)
Next, as in Valentino Sr.'s previous appeal on this issue, he does not address the "significant differences between criminal proceedings and dependency proceedings" (In re James F. (2008) 42 Cal.4th 901, 915) or the strong public interest in resolving dependency actions "expeditiously." (In re Jesusa V. (2004) 32 Cal.4th 588, 625.) If we accepted Valentino Sr.'s theory of structural error, it would result in "needless reversals of dependency judgments" and compromise "the strong public interest in prompt resolution of these cases so that the children may receive loving and secure home environments as soon as reasonably possible." (In re James F., supra, 42 Cal.4th at p. 918.)
Further, we can reasonably "ascertain[]" whether harmless error occurred under the circumstances of this case. (Christopher L., supra, 12 Cal.5th at p. 1082.) Valentino Sr. does not assert he suffered any prejudice because he was unable to represent himself, nor does he identify anything he would have done differently while representing himself at the hearing. (See Id. at pp. 1078-1081 [concluding harmless error analysis is appropriate when prejudice can be assessed].)
D. The Juvenile Court's Error Was Harmless
"Because a parent's right to self-representation in a juvenile dependency proceeding is statutory, rather than constitutional, our review of the assertion of the right to selfrepresentation is evaluated under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836." (In re A.M., supra, 164 Cal.App.4th at p. 928.) Under this standard, an error is harmless "unless it is reasonably probable the result would have been more favorable to the appealing party but for the error." (In re R.F. (2021) 71 Cal.App.5th 459, 474.) In dependency proceedings, harmless error analysis is not "based solely on legal principles" or "only from the parent's perspective. The reviewing court also must evaluate the effect of the error on the best interests of the child." (In re J.P. (2017) 15 Cal.App.5th 789, 799.) In the context of a section 388 motion, the best interests of the child include: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) Valentino Sr. does not identify anything that he would have done differently if he had represented himself. Nor has he shown a reasonable probability the outcome of his section 388 motion would have been more favorable had he been allowed to represent himself.
On a review of the full record, the facts before the juvenile court demonstrated Valentino Jr.'s best interest was to remain with Jesus. At the time of the section 388 hearing, Valentino Sr. had no reported visits with Valentino Jr. in three years, and Jesus had cared for Valentino Jr. for over three years, with two of those years as his legal guardian. Based on an updated investigation report from the Department, the juvenile court determined Jesus was still providing "excellent care" after his wife's death and Valentino Jr. was doing well in his care. (See In re Ernesto R. (2014) 230 Cal.App.4th 219, 223-224 [granting parent's section 388 motion was not in child's best interest where he was "in the care of his foster parents for the majority of his life and is bonded to them" and they "have provided a nurturing environment"].)
The evidence before the juvenile court also showed placement with Valentino Sr. was not in the child's best interest. Observing that dependency proceedings began when Valentino Jr. suffered an unexplained broken femur at one month old, the court found Valentino Sr. continued to exhibit the same "anger management issues" existing "at the time this petition was filed." (See In re B.D. (2008) 159 Cal.App.4th 1218, 1230 [section 388 motion properly denied as against children's best interest where "the problem that initially brought the children within the dependency system had not been removed or ameliorated"].) The court noted Valentino Sr. had not completed reunification services, and Valentino Sr.'s exhibits demonstrated he had not participated in any services since 2018. The court further observed Valentino Sr. had not cooperated with reunification services in E.G.'s subsequent dependency case. Finally, the juvenile court considered the "threatening" messages Valentino Sr. sent to Jesus and determined "father's anger is still present." Valentino Sr. has not identified any additional evidence or arguments he would have raised in propria persona that would have affected the outcome of his section 388 motion. (See Christopher L., supra, 12 Cal.5th at p. 1080 ["the court may summarily deny the [section 388 motion] if [it] fails to make a prima facie showing (1) that a change of circumstances or new evidence requires a changed order, and (2) that the requested change would promote the best interests of the child"].)
DISPOSITION
The juvenile court's order denying the section 388 motion is affirmed.
We concur: SEGAL, Acting P. J., FEUER, J.