Opinion
B302959
08-10-2020
In re E.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.V., et al., Defendants and Appellants.
Pamela Deavours for Appellant Anne V. Jesse McGowan for Appellant Valentino G. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP04128) APPEAL from order of the Superior Court of Los Angeles County, Hon. Marguerite D. Downing, Judge. Affirmed. Pamela Deavours for Appellant Anne V. Jesse McGowan for Appellant Valentino G. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel, for Respondent.
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Valentino G., the father of two-year-old E.G., appeals the juvenile court's November 25, 2019 order pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights. Valentino contends the juvenile court erred in denying his request to represent himself at the section 366.26 hearing. Although mother Anne V.'s counsel filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 and Anne failed to seek leave to file a brief, she joined in Valentino's appeal. We affirm the juvenile court's order and dismiss Anne's appeal.
Statutory references are to this code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initiation of Dependency Proceedings
When E.G. was one-month old, the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition because her sibling, V.G., had suffered an acute "spiral femur fracture" when he was one-month old. V.G.'s injury "was consistent with non-accidental trauma," and Mother and Father offered explanations that were inconsistent with the injury. The petition further alleged that Father had a conviction for felony child cruelty and a criminal history of convictions for possession of controlled substances and possession of controlled substances for sale. In a separate proceeding the juvenile court declared V.G. a dependent of the juvenile court because of his injury, Father's substance abuse and Mother's failure to protect V.G.
When Mother and Father failed to appear at the July 2, 2018 detention hearing, the juvenile court made prima facie findings to detain E.G. from Mother and Father. On July 3, 2018 the court issued a protective custody warrant for E.G. After the hearing, the Department reported that Mother and Father were uncooperative. Father claimed that he no longer lived with Mother, but he refused to provide the Department with his new address.
At the July 5, 2018 continued detention hearing, with Mother and Father present, the juvenile court ordered E.G. detained in shelter care under the Department's supervision. The court ordered the Department to provide family reunification services and separate monitored visitation for Mother and Father. The court also ordered Mother and Father to submit to random drug testing. The juvenile court scheduled the jurisdiction hearing for September 6, 2018.
On July 30, 2018 Father filed a section 388 petition requesting that the court terminate jurisdiction over E.G. because "[t]here is video evidence to show that [the Department] lied in all of their report[s], falsified or fabricated lies. They did not notify the Mother of the hearing. [The Department] did not do due diligence calling [Mother] unfit when clearly she is FIT." Father further maintained that "[s]tatistics show, that children are better off with parents. [E.G.] is a newborn and needs to be with us." On August 14, 2018 the juvenile court denied Father's section 388 petition without a hearing.
B. Jurisdiction/Disposition Hearing
In its August 20, 2018 report the Department stated that Mother and Father "did not make themselves available to provide any updated information." On numerous occasions Father refused to meet with the social worker. When the Department called Father to schedule an interview, Father yelled throughout the phone call. Father also continued to refuse to provide the Department with his address.
Despite informing the Department that he had been drug testing "every day," Father failed to take any drug tests. When the social worker presented Father with information regarding drug testing, Father "crumbled the piece of paper up and threw it on the floor." Based on Father's refusal to drug test, the Department believed Father was "using illicit substances." Father stated that the "[Department] cannot prove him being 'guilty' o[f] using drugs when [the Department] does not have proof of him using drugs."
Mother and Father did not visit E.G. Father blamed the social worker "because [the social worker] never set up his visits." When the Department encouraged Father to visit E.G., Father cursed at the social worker and ended the call with the social worker, stating that he did "not want [the social worker] calling him anymore." The Department recommended that the juvenile court not order reunification services for Father because, in addition to his conviction of felony child cruelty, he "has multiple arrest[s] and convictions related to illicit substance [abuse] and has refused to submit [to] random drug testing."
The Department reported that E.G. was "doing well and [was] adjusted and thriving in the care of foster parents." The foster parents reported that E.G. was "very dirty" when she was detained and "was not engaging." However, over time and with stimulation, E.G. was alert and receptive to cues. The foster parents stated that, if Mother and Father did not reunify with E.G., they would adopt her.
On September 10, 2018 the juvenile court sustained the dependency petition on behalf of E.G. pursuant to section 300, subdivisions (a), (b)(1), and (j), and declared E.G. a dependent of the juvenile court. The juvenile court ordered family reunification services and separate monitored visitation for Mother and Father. The court ordered Father to enroll in: a full drug and alcohol rehabilitation program with aftercare; a 12-step program with a court card and sponsor; an anger management program; parenting classes; and individual counseling to address case issues. The court scheduled the six-month review hearing for March 5, 2019. Father "walk[ed] out in the middle of the court session." Several days later, Father briefly visited E.G. at the Department's office. When the social worker reminded Father of his court-ordered programs, Father responded "'I'm not going to do shit for your guys.'"
On September 26, 2018 Mother and Father, representing themselves, filed separate notices of appeal from the September 10, 2018 orders. In his notice of appeal Father stated that he was "found guilty . . . without any evidence . . . We have proof of Fraud." This court dismissed the appeal (B293026) on May 15, 2019 for failure to file an opening brief. (Cal. Rules of Court, rule 8.220(a).)
C. Father Threatens to "Kill Everyone"
On September 28, 2018 the Department filed a section 388 petition seeking to terminate Father's right to visit E.G. because Father made a death threat against "everyone." Father stated to the foster mother, "'I'm going to kill everyone including the judge who took [E.G.] away,' and added that 'there is a nine waiting for them.'" In an ex parte application the Department stated that Father repeatedly called the foster mother late at night threatening that "he was going to take [E.G.] away from her." Emphasizing the social worker, Father also told the Department "'everyone is going to regret it.'" Because of Father's threats, on October 10, 2018 the juvenile court granted the Department's request for a temporary restraining order to protect E.G., the foster mother, and the social worker from Father.
On October 3, 2018 Father filed a section 388 petition requesting that the court terminate jurisdiction over E.G. After asserting that the juvenile court "ha[d] no jurisdiction," Father stated, "[t]he Judge stole our property . . . I tried submitting the Video as evidence to support that the social workers committed fraud . . . I never consented to any of . . . administrative hearings. I want my property back NOW[.]" On October 15, 2018,the juvenile court denied Father's section 388 petition without a hearing and scheduled a hearing for the Department's section 388 petition for November 27, 2018. At the hearing on November 27, 2018 the juvenile court granted the Department's section 388 petition and terminated Father's visitation with E.G. "pending further order." Father did not attend the hearing.
Social workers and sheriff deputies attempted to serve Father with the temporary restraining order, but he evaded service. Father told the social worker to stop "harassing him at his residence trying to trick him into going back to the 'Kangaroo Court.'" Father continued to make threats against the social worker. On February 13, 2019 the court granted a permanent restraining order against Father protecting the foster mother, the social worker, and E.G. The restraining order expires on February 13, 2022. Father did not attend the hearing.
D. Six-Month Status Review Hearing
In its February 19, 2019 report the Department stated that Father had not been participating in the court ordered programs and he continued not to make any effort to reunify with E.G. In fact, other than Father's brief visit, Mother and Father had not visited E.G. since she was detained. When the Department attempted to set up visitation, Father became "verbally aggressive" with the social worker using profanity laced insults. Mother confirmed to the Department that she did not want to know how E.G. was doing. Mother also did not participate in any court ordered programs. Father confirmed his prior death threat, "'I'm going to fucking kill you is a threat, FUCK YOU.'" Based on Mother's and Father's "lack of insight," their "continued denial as to their involvement in [V.G.'s] injuries," and "their lack of participation in their court ordered programs," the Department recommended that the court terminate reunification services and provide E.G. with permanent placement services.
At the March 5, 2019 six-month review hearing (§ 366.21, subd. (e)) the juvenile court found that returning E.G. to her parents' physical custody would create a substantial risk of detriment to E.G., and "there is not a substantial probability that [E.G.] will be returned to the custody of [Mother and Father] within the next period of review." The juvenile court therefore terminated family reunification services and scheduled a section 366.26 selection and implementation hearing for July 1, 2019. Father did not attend the hearing.
E. Selection and Implementation Hearing, and Termination of Parental Rights
In its section 366.26 report the Department stated that Mother had not visited E.G. and that the court had issued a restraining order protecting E.G. from Father. E.G. continued to do well in her foster home and she was highly adoptable. The foster parents wanted to adopt her. The Department recommended that the juvenile court continue the section 366.26 hearing for 60 days to allow the Department to complete the foster family assessment for adoption readiness.
1. July 1, 2019 Hearing
At the July 1, 2019 section 366.26 hearing Father asked to represent himself. Father stated, "I want to fire my attorney, Your Honor. I do not want him to represent me. I want to represent myself." The juvenile court responded, "You can't represent yourself . . . in this courthouse." The court then asked Father about his educational background, and whether he knew "what a [section] 366.26 hearing [was]." Father responded that he had attended college, but not law school, and he was not familiar with a section 366.26 hearing. The court then advised Father, "you can't represent yourself in dependency court if you do not know the law, the rules of this courtroom, if you do not know the Evidence Code. This is not like criminal. In criminal you [have] the absolute right to represent yourself. In this courtroom, . . . it is by case law, which means you do not have absolute right to represent yourself, and since in this courtroom, what governs is . . . best interest of the child. I find that since you do not know the Evidence Code, you do not know the Welfare and Institutions Code. You can't represent yourself."
The court continued the hearing to September 3, 2019 to allow the Department to submit a supplemental report regarding E.G.'s adoption. At the conclusion of the hearing, Father stated that he "object[ed] to everything." The court's July 1, 2019 minute order does not mention the juvenile court's denial of Father's self-representation request.
2. September 3 and November 25, 2019 Hearings
Although Father did not attend the continued hearing on September 3, 2019, Father's counsel stated that Father "would like me to ask the court to recuse itself from the matter under CCP 170.1 [because] he believes that the court is biased against [Father] and the Mother." The juvenile court denied the motion because it did not have any "personal animosity or bias towards [Father]," and an oral motion was not "proper." The court ordered adoption as the permanent plan for E.G. At the Department's request the juvenile court continued the hearing to November 25, 2019.
On October 18, 2019 Father moved to disqualify the juvenile court judge, alleging the judge was "bias[ed] in favor of the social worker." In its November 15, 2019 report the Department, after stating that there were "no barriers to adoption," recommended that the juvenile court proceed with termination of parental rights.
At the November 25, 2019 hearing, "based on [Mother's and Father's] general behavior, their inability to complete case plans, and their basic failure to visit [E.G.]," E.G.'s counsel joined the Department's recommendation to terminate parental rights. Mother and Father did not attend the hearing, and their counsel did not present evidence at the hearing. Father's counsel did not argue that any statutory exception to termination of parental rights applied. The juvenile court found by clear and convincing evidence that E.G. was adoptable and that "it would be detrimental to [E.G.] to be returned to [Mother and Father]." After ruling that no exception to adoption applied, the juvenile court terminated Mother's and Father's parental rights. The court designated the foster parents as the prospective adoptive parents. The juvenile court denied Father's motion to disqualify.
Mother and Father appealed from the November 25, 2019 order terminating parental rights.
Father did not appeal from the initial section 366.26 hearing on July 1, 2019 at which the juvenile court denied his request to represent himself. Rather, Father appealed from the juvenile court's order issued at the November 25, 2019 hearing terminating his parental rights under section 366.26. The Department argues, because Father failed to file a notice of appeal from the July 1, 2019 order, "that order ha[d] become final and this Court is without jurisdiction to consider it." Because the July 1, 2019 order was made at the initial section 366.26 hearing and necessarily impacted the November 25, 2019 session of the section 366.26 hearing, Father's appeal from November 25, 2019 order included the denial of his request to present himself at the July 1, 2019 hearing.
DISCUSSION
A. The Juvenile Court's Error in Refusing To Allow Father To Represent Himself Was Harmless
1. Applicable Law
Section 317, subdivision (b), requires appointment of counsel for an indigent parent or guardian in a juvenile dependency case "unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section." A prerequisite to a valid waiver is that the juvenile court must first apprise the mentally competent parent of "the dangers and disadvantages of self-representation and the risks and complexities of his or her particular case." (In re A.M. (2008) 164 Cal.App.4th 914, 923; accord, In re Brian R. (1991) 2 Cal.App.4th 904, 921.) A parent's right to self-representation, however, is statutory only; the United States Constitution and the California Constitution do not give a parent the right to self-representation. (In re A.M., supra, at p. 923; In re Angel W. (2001) 93 Cal.App.4th 1074, 1083 (Angel W.).)
Section 317, subdivision (b), states, "When it appears to the court that a parent . . . of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel for the parent . . . unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section."
"A parent's request for self-representation in a juvenile dependency proceeding differs from the same request by a criminal defendant in two significant respects. First, as explained, the parent's right of self-representation is statutory, not constitutional, and therefore must be balanced against other parties' rights. Second, the parent's exercise of the statutory right of self-representation could affect the child, who also has rights requiring protection." (In re A.M., supra, 164 Cal.App.4th at p. 925.) Nonetheless, "the court must respect the right of the parent to represent him-or herself 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." (Angel W., supra, 93 Cal.App.4th at p. 1084; accord, In re A.M., supra, at p. 924.)
While a parent may waive counsel at any point in the dependency proceedings (Angel W., supra, 93 Cal.App.4th at p. 1083), a parent's right to self-representation "must always be weighed against the child's right to a prompt resolution of the dependency proceeding." (In re A.M., supra, 164 Cal.App.4th at p. 925.) The court must "'"give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements."'" (In re V.V. (2010) 188 Cal.App.4th 392, 399.) "Thus, the juvenile court has discretion to deny [a parent's] 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. supra, 164 Cal.App.4th at pp. 925-926.) "Only when the pro se litigant 'is and will remain' so disruptive as to significantly delay the proceedings or render them meaningless and negatively impact the rights of the minor in a prompt and fair hearing may the court exercise its discretion to deny self-representation." (Angel W., supra, at p. 1085.)
Any error in denying a parent his or her right to self-representation is "analyzed under ordinary principles of harmless error as set forth in People v. Watson (1956) 46 Cal.2d 818, 837 [ ]." (Angel W., supra, 93 Cal.App.4th at pp. 1082, 1085; accord, In re A.M., supra, 164 Cal.App.4th at p. 928.) Under that standard, we ascertain whether it "appears reasonably probable" the parent would have "obtained a more favorable result" if the juvenile court had granted the request for self-representation. (In re A.M., supra, at p. 928.)
2. The Juvenile Court Abused Its Discretion in Refusing Father's Request To Represent Himself
The juvenile court denied Father's request to represent himself based on its concern he was not sufficiently knowledgeable regarding the legal issues presented by the section 366.26 hearing. Although well-motivated, this was not a valid reason to deny Father's request for self-representation. (See In re A.M., supra, 164 Cal.App.4th at pp. 923-926; Angel W., supra, 93 Cal.App.4th at pp. 1083-1085.) Further, nothing in the "exchange between the court and [Father] indicated that [he] lacked basic competency either to give a waiver of counsel or to represent [himself]." (Id. at p. 1084.) The juvenile court's comments at the July 1, 2019 hearing suggest the court did not recognize Father had the right to represent himself. Consequently, we cannot conclude denial of Father's request, based on the reason stated, fell within the scope of the juvenile's court's discretion.
The Department argues that, even if the juvenile court employed improper reasoning for denying Father's self-representation request, we should affirm because Father's actions throughout the proceedings "gave the court ample reasons to anticipate that [Father] would cause undue delay in the proceedings . . . ." However, while Father's out-of-court behavior was extreme, his in-court behavior had not been disruptive. When Father did attend court hearings, he was not disruptive. The record does not show that Father caused undue delay in the proceedings, and he did not ask to continue the section 366.26 hearing when he made his request to represent himself.
Father made the request to represent himself at the section 366.26 hearing, after the juvenile court terminated reunification efforts. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the court then must "concentrate its efforts . . . on the child's placement and well-being, rather than on a parent's challenge to a custody order"].) At the section 366.26 hearing, if the court finds by clear and convincing evidence the child is likely to be adopted, "the court shall terminate parental rights" unless the parent opposing termination can demonstrate one of the enumerated statutory exceptions applies. (§ 366.26, subd. (c)(1)(A) & (B); see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250, 259 [when the child is adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is "'relatively automatic'"].)
Given the stage of the proceeding, Father's refusal to visit E.G., and his failure to comply with the case plan, there was little Father could have done to disrupt or delay the termination of his parental rights at the section 366.26 hearing. Under these circumstances, we cannot conclude that it was "reasonably probable" that granting Father's request to represent himself would have impaired E.G.'s right to a "prompt resolution of custody status or unduly disrupt[ed] the proceedings." (In re A.M., supra, 164 Cal.App.4th at pp. 925-926; see 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. Only when the pro se litigant 'is and will remain' so disruptive as to significantly delay the proceedings or render them meaningless and negatively impact the rights of the minor in a prompt and fair hearing may the court exercise its discretion to deny self-representation"].)
3. The Juvenile Court's Error Was Harmless
Father does not argue he suffered prejudice as a result of the juvenile court's denial of his request to represent himself. At the section 366.26 hearing on November 25, 2019, which Father did not attend, Father's counsel did not present evidence or argue that an exception to termination of Father's parental rights applied. Father fails to identify anything that he would have done differently if he had represented himself. It was not "reasonably probable Father would have obtained a more favorable result if the juvenile court had granted" his request for self-representation. (In re A.M., supra, 164 Cal.App.4th at p. 928; Angel W., supra, 93 Cal.App.4th at p. 1085.)
Although he acknowledges existing precedent applies "the harmless-error doctrine when reviewing a claim that the juvenile court incorrectly denied a request for self-representation," Father cites Faretta v. California (1975) 422 U.S. 806 (Faretta) and People v. Joseph (1983) 34 Cal.3d 936 and argues "that the juvenile court's erroneous denial of his request for self-representation requires automatic reversal of the order terminating parental rights." According to Father, "[a]s in the criminal context," an automatic reversal "is necessary in order to avoid an impossibly speculative comparison [in determining harmless error], and to ensure that the right to self-representation in dependency cases is not completely meaningless." Father's arguments ignore the strong public interest in the expeditious resolution of dependency actions (§ 352, subd. (a)(1); In re Jesusa V. (2004) 32 Cal.4th 588, 625) and the "significant differences between criminal proceedings and dependency proceedings . . . ." (In re James F. (2008) 42 Cal.4th 901, 915 (James).)
In Faretta, supra, 422 U.S. 806, the Supreme Court held a criminal defendant not only has the right to the assistance of counsel, but also "has a constitutional right to proceed without counsel when he [or she] voluntarily and intelligently elects to do so." (Id. at p. 807.) In People v. Joseph, supra, 34 Cal.3d 936, the California Supreme Court held, when a court erroneously denies a criminal defendant the right to represent himself or herself "[o]nly a per se rule of reversal will ensure that the accused's freedom of choice will be scrupulously honored out of '"respect for the individual which is the lifeblood of the law."'" (Id. at p. 946.)
In James, supra, 42 Cal.4th 901, the California Supreme Court observed 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." (Id. at p. 915.) When comparing criminal and dependency proceedings, the Court held the "ultimate consideration in a dependency proceeding is the welfare of the child [citations], a factor having no clear analogy in a criminal proceeding." (Ibid.) In reaching its holding that the court's "error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding" was subject to harmless error analysis, the Court held, "We cannot agree . . . 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 pp. 915-917.)
Against this background, Father has not explained how the creation of an automatic reversal rule furthers E.G.'s need for an expeditious resolution of this proceeding. Although Father has effectively abandoned E.G., and she is thriving with the foster parents, under Father's theory the effort to provide her with a stable home with the foster parents would now be further delayed while the juvenile court repeats the section 366.26 hearing that will result in the exact same outcome. (See James, supra, 42 Cal.4th at p. 918 ["the price that would be paid for this added incentive, in the form of needless reversals of dependency judgments, is unacceptably high in light of 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"]; Jesusa V., supra, 32 Cal.4th at p. 625 ["Our conclusion is bolstered by the strong countervailing interest, expressed by the Legislature itself, that dependency actions be resolved expeditiously. [Citations.] That goal would be thwarted if the proceeding had to be redone without any showing the new proceeding would have a different outcome"]; see also In re Celine R. (2003) 31 Cal.4th 45, 59 ["[a]fter reunification efforts have failed, it is not only important to seek an appropriate permanent solution . . . it is also important to implement that solution reasonably promptly to minimize the time during which the child is in legal limbo"]; In re A.M., supra, 164 Cal.App.4th at p. 925 ["'The overarching goal of the juvenile dependency system is to promote the best interests of children within the system. (§ 202.) Children in protective custody have an interest in the prompt resolution of their custody status'"].)
Recognizing that few statutory errors lead to automatic reversals (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122 ["'[w]e typically apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se'"]), Father's argues, "[r]ather than focus on whether an error is statutory or constitutional," we should focus on "whether the error is 'structural' in nature such that it affects the framework in which a trial proceeds." However, after acknowledging the Court's "warning" in James that "the structural error doctrine . . . established for certain errors in criminal proceedings should not be imported wholesale, or unthinkingly, into the quite different context of dependency cases" (42 Cal.4th at pp. 915-916), Father concedes that "the structural error doctrine is not really at issue," and "'structural error' is besides the point.'"
The violation of a parent's due process right to notice of dependency proceedings is reversible per se. (See, e.g., In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 [automatic reversal based on "mistake of constitutional dimension" in failing to attempt to provide parent with statutorily required notice of selection and implementation hearing]; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 558 [failure to provide parent and children with status report at least 10 days before hearing as required by statute constitutes per se reversible error because of "violation of constitutionally required due process"].)
Father's relies on In re Armando L. (2016) 1 Cal.App.5th 606 for the proposition that abandoning harmless error review "already has some currency in dependency cases." His reliance is misplaced. In Armando the court "decline[d] the agency's invitation to review the record for harmless error where there [was] a void in the evidence created by the juvenile court's failure to have a contested hearing. Due process includes the right to be heard, adduce testimony from witnesses, and to cross-examine and confront witnesses." (Id. at p. 620.) Under these circumstances, the court was "left to guess as to what evidence mother may have presented, an impossible task without a record based on an evidentiary hearing." (Id. at pp. 620-621.)
Finally, Father's argument that a rule of per se reversal is necessary to show "respect for individual autonomy" based on Faretta, supra, 422 U.S. 806, is misguided. In a criminal proceeding, "[t]he primary motivation for the Faretta rule is respect for the accused's freedom of choice to personally conduct his own defense." (People v. Joseph, supra, 34 Cal.3d at p. 946; see Faretta, at p. 834 ["The right to defend is personal. The defendant, and not his lawyer or State, will bear the personal consequences of a conviction"].) In People v. Joseph, the California Supreme Court held that, "when such fundamental rights hang in the balance," a harmless error review standard "would inevitably erode the pro se right itself," and an "assessment of why or how an accused's trial was disadvantaged" by an unwanted attorney would be speculative. (34 Cal.3d at p. 946.) However, "[i]t has been determined that the Sixth Amendment does not apply in a juvenile dependency proceeding, and therefore 'its structure cannot provide a basis for finding a correlative constitutional right of self-representation' in a proceeding to terminate parental rights." (People v. Fraser (2006) 138 Cal.App.4th 1430, 1445; accord, Angel W., supra, 93 Cal.App.4th at p. 1082.) In a dependency proceeding, without a constitutional right to safeguard, an erroneous denial of a parent's right to represent himself or herself does not warrant automatic reversal. (Cf. People v. Fraser, supra, 138 Cal.App.4th at p. 1450 ["defendant [facing recommitment under Sexually Violent Predators Act] does not have a constitutional right to self-representation under Faretta. Therefore, erroneous denial of his motion does not constitute reversible error under the Faretta standard"].)
DISPOSITION
The juvenile court's November 25, 2019 order is affirmed.
On February 20, 2020 Mother's counsel filed an opening brief pursuant to In re Phoenix H., supra, 47 Cal.4th 835, and advised Mother of her opportunity to make a showing of good cause that an arguable issue exists. Mother did not file a response. After Father filed his opening brief, on February 27, 2020 Mother's counsel filed a motion to join Father's appeal, contending that if this court reverses the order terminating Father's parental rights, the order terminating Mother's parental rights must likewise be reversed. Because we affirm the juvenile court's November 25, 2019 order, and Mother failed to seek leave to file a brief, Mother's appeal is dismissed pursuant to In re Phoenix H. (See In re Cristian I. (2014) 224 Cal.App.4th 1088, 1096.)
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
PERLUSS, P. J.
FEUER, J.