Opinion
B232863
02-09-2012
In re DONAVAN E., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. HEIDI E., Defendant and Appellant.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
(Los Angeles County Super. Ct. No. CK86053)
APPEAL from a judgment of the Superior Court of Los Angeles County, Marilyn H. Mackel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Heidi E. (mother) seeks reversal of the trial court's March 17, 2011 jurisdictional and dispositional judgment on the basis that she did not knowingly and voluntarily waive her right to a trial and the trial court's acceptance of any waiver was prejudicial error. The record, however, reflects otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background was taken from the record which consists of a one-volume Clerk's Transcript and a one-volume Reporter's Transcript.
Mother gave birth to Donavan E. (Donavan) in January 2011. He is her second child. Mother's first child, Patrick E. (Patrick), is in the custody of his maternal grandparents under a family court guardianship arrangement. Mother tested positive for methamphetamines at the time that Donavan was born and she admitted to using drugs during her pregnancy with him. Mother's history includes a long-term struggle with substance abuse and depression and several drug-related criminal convictions. At birth, Donavan tested positive for methamphetamines.
Patrick's guardianship is not the subject of this appeal.
The Los Angeles County Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition on January 11, 2011 alleging that mother's substance abuse rendered her incapable of providing regular care for Donavan. Mother was represented by counsel at all times during the proceedings involved.
All references to section herein are to the Welfare and Institutions Code unless otherwise noted.
The section 300 petition also alleged that Donavan's father, Rueben C. (father), failed to provide the necessities of life thus endangering Donavan's physical and emotional health and safety, and placing the child at risk of physical and emotional harm. Father's whereabouts were originally unknown. However, after DCFS conducted due diligence on father, it was determined that he was released from Los Angeles County jail on January 10, 2011. Notice of the proceedings was mailed to father's last known address. He is not a party to this appeal.
At the jurisdiction and disposition hearing on March 17, 2011, the trial court took mother's oral waiver with respect to the allegations in the petition and found that such waiver was made intelligently, knowingly and voluntarily. Mother's counsel stated that she discussed the agreed upon amendments to the petition with mother and had obtained mother's waiver. However, mother's friend, Richard, who was present at the hearing and was subsequently asked to leave by the trial court, "came up saying don't sign it, don't waive any of [your] rights, don't sign anything." Mother's counsel then requested to continue the hearing on the petition so that she could again discuss the language and explain to mother that the rights she was waiving were those "for today's hearing only as [they relate] to setting the petition [and have] nothing to do with . . . reunification." Mother confirmed to the trial court that her counsel and DCFS "have worked out some language that the court may accept in dealing with this petition." Mother also confirmed that the amended language was presented to the trial court for it "to consider and accept as true to sustain the petition." The following conversation between the trial court and mother ensued.
The trial court stated, "You can either accept that language or go to trial on the original language which the court may change even further to something that you don't like as much or something you'll like even more. [¶] It could go either way if you go to trial. You either go to trial or agree to what has been arranged. [¶] If you agree to what has been arranged, then I will take an oral waiver that you agree to submit on this amended language. Submitting to the social worker's report which may be sufficient for the court to find the amended language to be true. [¶] If we find it to be true then you will have to understand to make orders concerning the care and custody of the child. [sic] That is a disposition issue. And we can go forward from that point. [¶] You see that the changes counsel[] [has] arranged with the Department to amend the petition; is that correct?"
Mother responded, "Correct."
The trial court asked, "Do you understand those changes?"
Mother replied, "The changes?"
The trial court clarified, "The changes that are in the petition?"
Mother then responded, "Yes. Correct, I do."
The trial court then asked, "Do you wish to submit to that language and waive your right to a trial on that petition?"
Mother responded, "Yes, this is true and correct."
The trial court stated, "You waive your right and submit on that language."
Mother replied, "Yes."
The trial court asked, "Do you understand by waiving your right to a trial, the court finds the petition to be true and that the court will have authority to make orders concerning the care and custody of Donavan[?]"
Mother responded, "Yes."
The trial court asked further, "Understanding that, do you wish to submit and waive your right to a trial?"
Mother answered, "Yes."
The trial court then stated, "Let the minute order reflect that this is a knowing[,] voluntary and intelligent waiver that has been made by the mother."
Mother then asked, "Are you talking about the one she asked me to sign? She says it's for today. I never heard of anything[.]"
To which the trial court replied, "You just signed it and I just took the same thing on the record orally. I don't want to trick you. This is one court where we protect our children and protect families. It's not about any trick and your attorney is the last person that . . . will be tricking you."
Mother stated, "She came at me very strong."
The trial court stated, "She is strong."
Mother continued, "Raising her voice at me. Even telling me just to sign this right now."
The trial court began, "We have a court date to complete . . . . " But mother continued, "I am reading what I am suppose [sic] to be signing. I don't agree with everything. I am going to admit that all of the things that were said were not true."
The trial court clarified that mother's oral waiver was specific to the amended petition, stating, "You have agreed to other language on the petition."
Mother confirmed the clarification, "Just the petition."
The trial court agreed that mother's waiver was limited to the allegations in the amended petition, stating, "That is what the Tahl[] waiver is about. Understood. What the waiver does if you have accepted the waiver that does give this court authority for this child if it were found to be true or not true. [¶] You understood that?"
In re Tahl (1969) 1 Cal.3d 122, 132, held that, in criminal cases, before a court may accept a plea of guilty, it must enumerate the constitutional rights the defendant is waiving and elicit express waivers of those rights from the defendant himself.
Mother replied, "Yes."
Although it is unclear from the record what became of the written waiver mentioned above, consistent with the limitation of mother's oral waiver to the petition and mother's statements that she does not agree with the contents of the separate written waiver, no written waiver is part of the record.
The trial court then proceeded to enter DCFS's evidence. Mother's attorney also joined in the waiver. No objections to DCFS's evidence were made.
Based on the evidence submitted by DCFS and mother's waiver, the trial court sustained the section 300 petition as amended and adjudged Donavan to be a dependent of the court. With respect to disposition, the trial court found, by clear and convincing evidence, that substantial danger exists with respect to Donavan and removal from mother's care and custody was necessary to protect him. Custody of Donavan was placed in the care of DCFS for suitable placement. The trial court ordered counseling, drug testing, visitation and family reunification services for mother, inter alia. The trial court also strongly recommended that mother check into a residential treatment program.
Mother timely appealed.
ISSUES ON APPEAL
In this appeal, mother challenges the judgment entered on March 17, 2011. She contends that the trial court failed to advise her of her rights in compliance with California Rules of Court, Rules 5.682 and 5.534 , and, therefore, she did not knowingly and voluntarily waive her right to a trial. Because the deficiencies involved constitute prejudicial error, mother continues, the order must be reversed. We disagree.
All rule references are to the California Rules of Court unless otherwise noted.
Rule 5.682, subdivision (c), states in relevant part: "If the parent or guardian wishes to admit the 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 (b)." Subdivision (b) states in relevant part: "After giving the advisement required by rule 5.534, the court must advise the parent or guardian of the following rights: [¶] (1) The right to a hearing by the court on the issues raised by the petition; [¶] (2) The right to assert any privilege against self-incrimination; [¶] (3) The right to confront and to cross-examine all witnesses called to testify; [¶] (4) The right to use the process of the court to compel attendance of witnesses on behalf of the parent or guardian; and [¶] (5) The right, if the child has been removed, to have the 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 child welfare agency agree that the child will be released on a later date."
Rule 5.534, subdivision (k), enumerates similar rights of which the court must advise "the child, parent, and guardian in section 300 cases . . . . : [¶] (A) Any right to assert the privilege against self-incrimination; [¶] (B) The right to confront and cross-examine the persons who prepared reports or documents submitted to the court by the petitioner and the witnesses called to testify at the hearing; [¶] (C) The right to use the process of the court to bring in witnesses; and [¶] (D) The right to present evidence to the court."
DISCUSSION
1. Mother's Waiver With Respect to the Amended Allegations in the Petition Was Knowingly and Voluntarily Made Under the Totality of the Circumstances
Mother contends that she was not advised of her specific rights as required by Rules 5.682 and 5.534 and, therefore, the waiver of her right to a trial on the petition was not knowingly and voluntarily made. We disagree.
" 'A dependency proceeding is civil in nature and is designed not to prosecute the parent, but to protect the child. [Citation.] Nevertheless, a parent's fundamental right to care for and have custody of her child is implicated and may not be interfered with without due process of law. [Citations.]' " (In re Patricia T. (2001) 91 Cal.App.4th 400, 404 (Patricia); In re Monique T. (1992) 2 Cal.App.4th 1372, 1376-1377 (Monique).) To garner against the infringement of a parent's rights in dependency proceedings, Rules 5.682 and 5.534 provide that the trial court must advise parents of specific rights enumerated therein. If a parent admits the allegations in the petition or enters a submission on the issue of jurisdiction, the trial court must find that the parent "knowingly and intelligently" waived those rights. (Cal. Rules of Court, Rule 5.682, subd. (f)(3).) However, even if the full mantra of specific rights enumerated in Rules 5.682 and 5.534 are not recited perfectly by the trial court, a plea or submission will be found valid "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. [Citations.]" (In re Patricia T., supra, 91 Cal.App.4th at pp. 404-405.)
The Patricia court analyzed this issue under the prior numbering format of these rules. Rule 5.682 was formerly Rule 1449 and Rule 5.534 was formerly Rule 1412.
Although the trial court did not recite word for word the litany of rights enumerated in Rules 5.682 and 5.534, it advised mother of the rights that she was agreeing to waive in general terms. Additionally, mother was represented by counsel throughout the proceedings and she confirmed that her counsel negotiated the amended language in the petition with DCFS. Also, mother's counsel stated on the record that counsel had previously discussed the waiver of rights with mother. Mother orally indicated to the trial court several times that she understood what she was waiving and agreed to waiving a trial on the petition. Although mother indicated she was under pressure to sign a written waiver and that she didn't agree with the language in the written waiver, she confirmed orally after further clarification by the trial court that she still wished to waive trial on the petition. Further, the contested written waiver is not part of the record.
In our view, taking the record as a whole, the evidence shows that mother knowingly and voluntarily waived her rights under the totality of the circumstances.
2. Any Deficiencies in the Taking of Mother's Waiver Constitute Harmless Error
Mother contends that the deficiencies involved in the trial court's taking of mother's oral waiver constitute prejudicial error. Even if we found the trial court's advisement inadequate, we would not find it prejudicial.
While the admission or submission of a dependency petition "affects the parent's fundamental rights, [it] does not expose the parent to deprivation of his or her personal liberty" because "the advisements we are concerned with are mandated by nonconstitutional rules of procedure." (In re Monique T., supra, 2 Cal.App.4th at pp. 1377-1378.) Thus, "the failure to advise on the record is subject to harmless error analysis." (Id., at p. 1378.)
The Monique court held that the failure of the trial court to advise the mother of the specific rights enumerated in Rules 5.682 and 5.534 was harmless error because the mother was represented by counsel at all stages of the proceeding, her counsel explained her rights to her, the mother indicated that she wished to waive such rights and the mother did not claim that she was under any kind of pressure to waive those rights. (In re Monique T., supra, 2 Cal.App.4th at p. 1378.) "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.)
The Monique court analyzed this issue under the prior numbering format of these rules. Rule 5.682 was formerly Rule 1449 and Rule 5.534 was formerly Rule 1412.
The facts in this appeal are substantially similar. Here, as mentioned above, mother was represented by counsel throughout the proceedings, her counsel negotiated the amended language in the petition with DCFS, and her counsel had previously discussed the waiver of rights with her. Mother orally indicated to the trial court several times that she understood what she was waiving and agreed to waiving a trial on the petition.
"By her argument, [mother] essentially attacks the sufficiency of the evidence to support the jurisdictional finding that she is currently incapable of caring for her child. We will uphold the [trial] court's findings if after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is substantial evidence to support the findings." (In re Monique T., supra, 2 Cal.App.4th at p. 1378.)
As in Monique, the "evidence overwhelmingly supports the dependency order that . . . mother is presently unable to properly care for [Donavan] because of her mental and emotional disabilities and her drug abuse. [Donavan] was born with dangerous drugs in [his] body, which creates a legal presumption that [he] is a person described by . . . section 300, subdivision (b). [Citation.] [Section] 355.1, subdivision (a) provides: 'Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor, of such a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, . . . that evidence shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300.' " (In re Monique T., supra, 2 Cal.App.4th at p. 1378.) Donavan's meconium drug screen tested positive for methamphetamines. Mother admitted to prenatal drug use and such use is "probative of future neglect and indicates that the child is in need of the court's protection. [Citations.]" (In re Monique T., supra, 2 Cal.App.4th at p. 1379.) And mother suffered from long-term depression.
Finally, mother has provided no indication that she could have offered different or more favorable evidence or witnesses. Mother does not dispute that Donavan was born with methamphetamines in his body, nor does she dispute her history of substance abuse or mental illness. Mother failed to present sufficient evidence to rebut the presumption that Donavan is a minor described in section 300, subdivision (b), and she has not alerted us to any new evidence which she would have introduced, but could not due to the trial court's finding that she waived the jurisdictional trial. Instead, the evidence shows that mother's mental and emotional issues, her drug use and her noncompliance with prenatal care "reveal a tragic inability to protect and to care for the needs of [Donavan]." (In re Monique T., supra, 2 Cal.App.4th at p. 1379.)
Without deciding the question of whether the stringent harmless error standard under Chapman v. California (1967) 386 U.S. 18 (Chapman) rather than "the more easily met reasonable probability test" under People v. Watson (1956) 46 Cal.2d 818, is the correct standard of prejudice for this type of error, the Monique court found the trial court's error was harmless even under Chapman. The result is similar here. Based on the foregoing, we find the trial court's error was harmless beyond a reasonable doubt.
DISPOSITION
The March 17, 2011 judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.