Opinion
B232759
12-20-2011
In re TAYLOR L. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. WAYNE L., Defendant and Appellant.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK77538)
APPEAL from orders of the Superior Court of Los Angeles County, Marilyn Mordetzky, Referee. Affirmed.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Defendant Wayne L. appeals from the jurisdiction and disposition orders issued by the juvenile court pursuant to Welfare and Institutions Code section 300 et. seq. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Department of Children and Family Services (DCFS) filed a section 300 petition against Melissa B. (Mother) and her husband, Wayne L. (Father), on June 22, 2009. At the time, Mother and Father had three minor children: Taylor L., 10 years old; Anthony L., 4 years old; and K. L., 21 months old. Mother also had a teenaged child, Nathaniel B., from a prior relationship, but the court's orders with respect to Nathaniel are not a part of this appeal.
In a prior family court proceeding on June 15, 2009, the family court issued mutual domestic violence restraining orders protecting Mother and Father from each other and a related child custody order giving shared legal custody of the children to Mother and Father, with Father having sole physical custody of them.
The juvenile court issued orders taking jurisdiction over the children and removing them from Mother's physical custody in December 2009. The orders were based upon the failure to protect under section 300, subdivision (b), as stated in counts b-1 and b-3: "The children Nathaniel B[.], Taylor, Anthony and K[.] L[.]'s mother, Melissa L[.] and the mother's husband, Wayne L[.], father of the children Taylor, Anthony and K[. L.], have a history of domestic violence and engaging in mutual altercations in the children's presence. On or about May '09, [Father] struck [Mother] and pulled [her] hair. [Mother] struck [Father], pulled [his] hair, and scratched [his] face, neck and arms. Such mutual altercations on the part of [Father] and [Mother] places [sic] the children at risk of harm."
As abuse of sibling under section 300, subdivision (j), count j-1 stated: "On 5/21/2009, the children Nathaniel B[.], Taylor L[.], Anthony L[.] and K[. L.]'s mother Melissa L[.] created a detrimental and endangering situation for the children's five month old sibling Samuel L[.] . . . in that [Mother] and the children Taylor and Anthony were co-sleeping with the sibling, resulting in the sibling's death in the early morning hours.On 12/22/2006, the children's five month old sibling Samantha L[.] died as a result of co-sleeping with the children's maternal grandmother Roberta B[.] and the child Taylor. Such a detrimental and endangering situation established for the sibling Samuel by [Mother] endangers the children's physical and emotional health and safety and creates a detrimental home environment, placing the children at risk of physical and emotional harm, damage, and danger." The court declared each child a dependent child of the court under section 300, subdivisions (b) and (j).
The coroner's report explained "co-sleeping" as being "bed-sharing."
The court found, by clear and convincing evidence, that there was substantial danger to the physical health of the children and/or the children were suffering severe emotional damage, and there were no reasonable means to protect them without removal from Mother's physical custody. (§ 361, subd. (c)(1).) The court explained that this case "almost [borders] on gross negligence because, despite all the warnings that the mother had in this case, she disregarded them and still continued to allow the children to sleep in a situation that presented a substantial risk of harm . . . . [T]he mother's judgment places these children at a substantial risk of harm because she continue[d], despite all other contrary information . . . to place those children at risk."
The court ordered that Taylor, Anthony and K. L. be placed with Father under DCFS's supervision. The court granted Mother unmonitored daytime-only visitation, and did not give DCFS discretion to liberalize the visitation. The court ordered Mother to attend a DCFS-approved program of parent education to address co-parenting and individual counseling to address grief and loss, domestic violence, protection of the children and other case issues. The juvenile court ordered Father to participate in a parent education program to address co-parenting and to undergo 12 random drug tests, on the condition that, if Father missed a test or tested positive, he would be required to complete a drug rehabilitation program.
Mother appealed from the jurisdiction and disposition orders. We affirmed the orders in In re Nathaniel B. et al./DCFS v. Melissa B. (Aug. 4, 2010, B221138) [nonpub. opn.].
Mother is not a party to the instant appeal. Inasmuch as Father is the party to this appeal, the remaining factual and procedural background is limited to information relevant to Father.
By the next status review in June 2010, Father had completed his court ordered drug testing, with all negative results, as well as a parenting course and an anger management program. After ensuing review hearings, in September, the juvenile court reviewed Father's activities with regard to the children. The court ordered Father to make an appointment for Anthony for neurological and hearing exams, enroll Anthony in school, and to resolve issues with Medi-Cal in order to facilitate Taylor's participation in therapy.
During the period between December 2009, when the children were placed with Father, until December 2010, DCFS submitted a number of reports to the juvenile court. The following paragraphs summarize the reports. Anthony was diagnosed with autism. Father did not accept the diagnosis. He declined to take Anthony for further court-ordered evaluation. He also declined to attend special autism training that DCFS had made available not only for Anthony, but also for Father to learn how to help Anthony at home. Anthony missed three weeks of preschool because Father delayed getting a prescription filled to treat Anthony's ringworm condition. At the beginning of the next school year, Father delayed enrolling Anthony until two weeks after school started.
Father and Taylor had promptly started attending a program for teens, which Father was counting as therapy. The children's social worker (CSW) informed Father the program did not qualify as individual therapy as the court had ordered and that Father had to make proper arrangements. Father explained he could not afford to pay for the therapy. Father had experienced a problem obtaining Medi-Cal assistance for the children's physical and mental health care. This appeared to be related, in part, to the fact that Mother had some insurance coverage for the children through her job. The CSW directed Father to a source to help him with the Medi-Cal application process. As a result, there was a substantial delay in arranging for individual therapy for Taylor, but Father eventually started the process.
In addition, initially, Father and Mother did not cooperate with each other for visitation. The parents often had heated interactions at the time they met to exchange the children. As a result, the CSW created a visitation schedule and arranged for the exchanges to occur at the DCFS offices or at the Palmdale Sheriff Station, so that the parents would not have to interact.
At a June 2010 hearing, over DCFS's objection, the court liberalized Mother's visitation by ordering that she have unmonitored overnight weekend visitation once per week as long as the children had separate beds. Father refused to comply with the order for overnight visits with Mother. He believed Mother would again neglect the children and he believed her neglect was the cause of the death of their other two children, Samantha and Samuel. In addition, Taylor was refusing to visit overnight, saying she was not comfortable if her Mother's new female gay friend would be present or involved in any way. Father refused to allow the visits if the friend was present on "moral grounds," in that he was Catholic and because his daughter did not feel comfortable about the circumstances. Eventually, Taylor went along with the visits and Father allowed the visits to go forward.
In December 2010, DCFS held a team decision making meeting (TDM) with Father to discuss concerns about medical care and school attendance for Anthony, therapy for Taylor, and the effects of the verbal and emotional abuse between Father and Mother on the children. The CSW reported that "Father's behavior during the TDM was concerning as he would not focus on one topic, was extremely hyper, repeatedly interrupted other participants and he would not allow the facilitator to maintain order. Father's behavior was very questionable."
Due to Father's behavior at the TDM, the CSW telephoned Father on December 13, 2010, and asked him to provide an on-demand drug test. Father agreed. The drug test result was positive for amphetamine and methamphetamine. On January 4, 2011, after receiving the result, the CSW went to Father's home and took Anthony and K. L. into protective custody. She then went to the paternal grandmother's home and took Taylor into protective custody.
On January 7, DCFS filed a subsequent petition pursuant to section 342 against Father. As failure to protect under section 300, subdivision (b), the petition set forth count b-1, which alleged Father had a history of substance abuse and on December 13, 2010, he had a positive toxicology screen for amphetamine and methamphetamine, and his use of illicit drugs rendered him incapable of providing his children with regular care and supervision and placed them at risk of physical harm, damage and danger. The petition alleged two other counts, but they were subsequently dismissed by the juvenile court.
On January 7, 2011, prior to the scheduled detention hearing, Father requested that his appointed counsel be relieved from representing him. The juvenile court referred to the request as a Marsden motion and conducted a Marsden-type hearing. The court informed Father that, in order to relieve his court-appointed attorney, the court was required to find that the attorney had inadequately represented him or that there is such a breakdown in communication that she cannot properly represent him. Father said that, when he called about the TDM, the attorney told him to "do that," and as a result, he took the drug test and it was false. The court explained that his attorney had nothing to do with the TDM; she was not allowed to attend. Father then stated that his appointed attorney did not present his case to the court as he would like and did not say what needed to be stated as far as the children. He asked if attention could be given to Anthony, claiming that Anthony had bruises and scarring due to being beaten into submission not to talk about his deceased brother. Father said, "I do not want her. I don't need her. I will represent myself or find adequate —." The court interrupted, saying, "You're allowed to find your own representation. [¶] [Your current appointed attorney] will continue to represent you. I haven't found anything that allows me to grant the Marsden [motion]." When the court said that Father could choose to have his own private counsel, Father interrupted, saying, "I will. Thank you. I've been doing a lot of reading." The court said that he could continue with his reading. Father again interrupted, saying, "I've lost my kids." The court thereafter said that "[t]he request for a Marsden is denied" and that Father had said he would get his own attorney. Father said, "I'm walking out. I don't need to be here. I do not want her as my attorney. I have that right." The court replied that it had not allowed Father to go pro. per.
In People v. Marsden (1970) 2 Cal.3d 118, the California Supreme Court held that a party who has a constitutional right to court-appointed counsel, such as a criminal defendant, and objects to the particular counsel appointed must be given an opportunity to be heard regarding his objections. (Id. at p. 124.) The purpose was to enable the party to make '""a sufficient showing . . . that the right to the assistance of counsel would be substantially impaired . . . in case the request is not granted, and within these limits there is a field of discretion for the court"'" to do so. (Id. at p. 123.)
Father's appointed attorney then told the court that, previously, Father became very frustrated when she tried to advise him about his case, and he became very angry when she gave him her prognosis of what would happen at the detention hearing. She said things got heated. She told Father that if he did not change some of his language, she was going to have to hang up, and she did. When the attorney's secretary called Father back later in the day, he told the secretary that he wanted another attorney.
The attorney told the court that she was more than willing to work with Father. When the attorney said that there was good advice she could give and that together they could come up with a good plan, Father said he did not believe that would happen, but he was sure another attorney could do that for him. The court told Father to come back on Monday with his attorney. Father left the courtroom.
The court resumed the detention hearing and ordered the children to be detained and placed in foster care. The court granted Father monitored visitation and specified that the paternal grandmother could serve as the monitor.
When the detention hearing was resumed on January 10, the court asked Father if he had retained other counsel. He responded that he had not had enough time, in that the previous hearing ended on Friday with only an hour and a half left, and the current hearing had begun on Monday afternoon. He asked for an extension of time to obtain counsel. The court denied his request, explaining that the court had to make findings in reference to detention. Father's appointed counsel said she would be willing at any time prior to the next hearing to "walk on a substitution of attorney" if Father retained private counsel. The court said it would be willing to entertain the substitution if that were the case.
After argument by Father's counsel and counsel for Mother, the court asked Father's counsel some questions. Father interjected a few very brief explanations during the questioning. When the court reminded him he was not to speak, he said "Sorry." The court explained that it was concerned that time had transpired in the case, Father had not fully complied with orders the court made for the children's welfare, and the issue in the case was the safety of the children, but Father had tested positive for drugs. Later, the court allowed Father to speak in response to the request of Father's attorney that he be permitted to make a brief argument. Father complained that it had been two years, but there had not been very much resolution as far as the totality of the issues at hand regarding the children's safety. He said it was in DCFS's hands and "they haven't done what they need to do." Throughout Father's attempts to express his view of the issues, the juvenile court interrupted repeatedly that what he was talking about was not the issue before the court "today." When the court finally asked if he had any issues before the court today, Father said, "Yeah. Illegal detention as far as DCFS. No showing of paperwork, first and foremost. [¶] Second of all, I would —." Then the court interrupted and moved on to making findings.
In its jurisdiction/disposition report dated February 15, 2011, DCFS reported that Father opted not to participate in an interview for the report and had not offered an explanation for the positive drug test results. The report included notes from interviews with Father and Taylor in July 2009. Father had said that, five years earlier, he had been caught with marijuana, and then two years ago, he was convicted of possession of unprescribed Vicodin and given three years probation with drug testing. In the 2009 interview, Taylor had said she had seen her dad with what she believed was marijuana once when he went into the bathroom and smoked it.
DCFS also reported that Father was not in compliance with court orders and had completely refused to contact the CSW since the detention of his children. When contacted by the CSW, the paternal grandmother informed the CSW that Father would not call the CSW because he was upset. Father contacted other CSWs, stating that he did not want to deal with his assigned CSW and supervising CSW.
At the hearing on February 15, Father's counsel informed the juvenile court that Father was still requesting self-representation. The court denied the request. Counsel objected to the court's denial of the request, in that she believed it might be his right to represent himself. The court continued the matter and ordered Father to submit to weekly random on-demand drug testing.
In the report dated March 18, 2011, DCFS reported that Father had left a voice message for the CSW. He did not address any of the questions the CSW had left as voice messages regarding, for example, no-shows for drug testing, visitation, and scheduling for the upcoming drug tests. Father had been a "no-show" for three drug tests.
At the contested jurisdiction hearing on March 18, 2011, the juvenile court denied Father's renewed oral motion to represent himself. The court explained that "it's not an absolute right to represent yourself because we have the children's best interest at stake here. [¶] And certainly along with keeping in mind with best interest of the children is that they need a prompt resolution to the custody issues." The court made a statement to the effect that the issues before a dependency court need to be addressed by "somebody that really understands the scheme and law behind dependency . . . and knows what the actual facts are in order to bring all the evidence out." The court said that what Father really wanted was to be able to tell the court his side of the story and that the court would allow him a little latitude if he testified so that he could give his side of the story.
With regard to Father's renewed request for self-representation, the court concluded that to let Father "handle his own case on his own behalf . . . would not only not be in the best interest of the children, but certain would unduly affect the time that's going to be needed to take care of the issues and make resolution to this matter because he's not going to be able to understand what the issues are, and we're going to go on for days with not having the proper issues addressed in this court, which will prolong the custody of these children. [¶] . . . [¶] He may be familiar with the facts of this case, but he doesn't know what the dependency law is and what's relevant and what's not relevant." The court also noted the adequacy of the representation that Father's appointed counsel had provided thus far.
After hearing testimony, the court acknowledged that Father had initially cooperated in drug testing and had tested clean. The court noted the history of the case as a whole, the drug issues in Father's criminal history, and the change the court had observed in Father's conduct. Given such background, the court said, there was reason for concern at this point, in that Father's most recent drug test showed methamphetamine and Father was unwilling to submit to further testing.
Father gave sworn testimony at the hearing. He testified that he did not use methamphetamine and that the December 2010 test results were ".500. Odd." He testified that he did not use methamphetamine in December and that currently, he did not use any illegal drug. He said, "Don't even have a marijuana card." He testified his only conviction for drugs was for Vicodin in 1994. When his attorney asked if he had ever used methamphetamines in his life, he responded, "Nope. I'm good to go." As his attorney tried to ask further questions, Father talked over her and the court admonished him not to do so because the court reporter could not take down the proceedings accurately. Father spoke at length about his conclusion that the drug test result was tampered with or faked. Father said he thought it was particularly suspicious since the case was nearing the two-year mandated maximum time. Father referred to the reasons for beginning the dependency proceedings, his cooperation for over a year, his concern that he had two deceased children and DCFS was still dragging out the proceedings with his living children. In response to questions from his attorney, Father said "I love my kids to death. Give me liberty or give me death. [¶] . . . [¶] [I'm prepared to take care of my children today] just like it was before they were illegally taken." When asked if he was asking the court to return the children to him that day, Father said, "Immediately. They shouldn't have been removed. Eminent Domain. Basis. Rights." At the conclusion of the hearing, the court continued the matter to April 12, 2011.
According to the DCFS report dated April 12, 2011, Father was not in compliance with any of the court-ordered activities. He had been uncooperative with drug testing and had several no-show reports. He failed to provide a stable address to allow the CSW to communicate with him by mail.
At the April 12 disposition hearing, the juvenile court found that Father was not in compliance with his case plan. The court found that by clear and convincing evidence, substantial danger existed to the physical health of the children and/or the children were suffering severe emotional damage, and that there were no reasonable means to protect them without removal from Father's physical custody. As to the section 342 petition, the court sustained count b-1 and dismissed counts b-2 and j-1, and ordered that the children be removed from Father's custody and Father be provided family reunification services. The court ordered Father to participate in a drug/alcohol program with random on-demand testing, parenting education and individual counseling to address case issues, and grief counseling. Father was granted monitored visits for a minimum of three hours a week, limited only to the availability of the monitor. Father filed a timely notice of appeal.
DISCUSSION
The sole contention Father raises on appeal is that the court's jurisdiction and disposition orders must be reversed, in that the juvenile court improperly denied him his right to self-representation. We disagree.
We review a juvenile court's denial of a parent's request for self-representation for prejudicial abuse of discretion based upon statutory and judicially-adopted standards. (In re A.M. (2008) 164 Cal.App.4th 914, 925-926.) Section 317, subdivision (b), gives "a parent in a juvenile dependency case a statutory right to self-representation," provided that the parent makes a knowing and intelligent waiver of counsel. (In re A.M., supra, at p. 923; accord, In re Angel W. (2001) 93 Cal.App.4th 1074, 1083-1084.) 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., supra, at p. 923.) Even with a valid waiver, however, it is permissible 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." (Id. at pp. 925-926, italics omitted.)
Subdivision (b) of section 317 provides: "When it appears to the court that a parent or guardian 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 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."
Not all disruption justifies denial of a self-representation request. The mere possibility of disruption or delay associated with the parent's lack of knowledge or skill in dependency law and courtroom procedure is not a sufficient basis for denial. On the other hand, it is sufficient if the parent "'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." (In re Angel W., supra, 93 Cal.App.4th at p. 1085.) In addition, attempting to protect the parent from negative results stemming from his or her lack of knowledge or skill in the law and courtroom procedure is not a sufficient ground for denial. (Id. at p. 1084.)
The overriding consideration is that the parent's statutory 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.) "If it is reasonably probable that granting a parent's request for self-representation will lead to undue delay in the proceedings that would impair the child's right to a prompt resolution of custody, the juvenile court has discretion to deny the request." (Id. at p. 926.)
Father requested self-representation beginning with the detention hearing in January, at the February hearing, and at the jurisdiction hearing in March. In January, the juvenile court held what it termed a Marsden-type hearing and applied associated criteria for relieving counsel. The Marsden criteria are inapplicable to a parent's statutory right to self-representation in juvenile dependency proceedings. As we previously noted, a Marsden hearing and criteria relate to a criminal defendant's constitutional right to counsel. (People v. Marsden, supra, 2 Cal.3d at pp. 123-124; see also In re Angel W., supra, 93 Cal.App.4th at p. 1080 [the Sixth Amendment regarding the right to counsel does not apply in dependency proceedings].) Thus, the court's determinations that there did not appear to be any inadequacy in the appointed attorney's representation or that, instead of representing himself, Father might obtain his own counsel were irrelevant. Neither of these factors is applicable to a parent's right to self-representation. (See § 317, sub. (b); In re A.M., supra, 164 Cal.App.4th at pp. 925-926; In re Angel W., supra, at pp. 1083-1085.) Denial of Father's request on this basis was an abuse of discretion.
In March, the juvenile court denied Father's request on the basis that Father would not be able to understand what the issues were, he did not "really understand[] the scheme and law behind dependency," and "what's relevant and what's not relevant." Lack of knowledge and skill in dependency law and courtroom procedure is not a sufficient ground for denying a parent's request for self-representation. (In re Angel W., supra, 93 Cal.App.4th at p. 1084.) The court referred to the children's right to a prompt resolution of the dependency proceeding (In re A.M., supra, 164 Cal.App.4th at p. 925), but only as the basis to identify the cause of the delay as Father's lack of legal knowledge and skill. Denial of Father's request on this basis was an abuse of discretion.
Abuse of discretion alone, however, is not a sufficient basis to reverse the juvenile court's decision. The parent must also have been prejudiced by the error. We will not reverse the court's decision if the error is harmless. We evaluate the juvenile court's decision under the harmless error standard "[b]ecause a parent's right to self-representation in a juvenile dependency proceeding is statutory, rather than constitutional." (In re A.M., supra, 164 Cal.App.4th at p. 928; see People v. Watson (1956) 46 Cal.2d 818, 836.) If it does not appear "reasonably probable [the parent] would have obtained a more favorable result if the juvenile court had granted his requests for self-representation," the error is harmless. (In re A.M., supra, at p. 928.)
Review of the record leads us to the conclusion that the errors here were harmless, in that it is not reasonably probable that Father would have obtained a more favorable result if he had represented himself. (In re A.M., supra, 164 Cal.App.4th at p. 928.) The evidence is undisputed that Father received a positive drug test result in December 2010. Yet he never took any drug test thereafter, not even the court-ordered drug testing, to refute the evidence that he was a user of amphetamine and methamphetamine. He had opportunity to demonstrate his sobriety, but he chose not to do so. From December 2010 to the time of the disposition hearing in April 2011, Father never offered any credible evidence to support his claim that the test result was wrong or had been faked. At the time of the jurisdiction and disposition hearings, therefore, the undisputed evidence before the juvenile court was that Father was a user of amphetamine and methamphetamine, and there was no evidence before the court that he was not addicted to the drugs or abusing the drugs on a frequent basis.
Unfortunately, experience has shown that the effects of amphetamine and methamphetamine are such that leaving children in the sole physical custody of someone who frequently uses the drugs presents a substantial risk of physical and emotional harm to those children. (See § 300, sub. (b).) The drugs are known to impair the caretaker's judgment, which could reasonably be expected to impair his or her ability to adequately supervise and protect the child. (Ibid.) In such circumstances, there is no reasonable means to protect the children from the danger to their health, safety, and well-being other than to remove them from the physical custody of the substance abuse. (See § 361, subd. (c)(1).) Such findings can be reasonably inferred from the juvenile court's rulings with respect to Father and substantial evidence supports them. Thus the findings satisfy the standards for the jurisdiction and disposition orders made by the juvenile court with respect to Father. (§§ 300, subd. (b); 361, subd. (c)(1).) It is not "reasonably probable [Father] would have obtained a more favorable result if the juvenile court had granted his requests for self-representation." (In re A.M., supra, 164 Cal.App.4th at p. 928.) Therefore, any error in the court's denial of Father's request for self-representation is harmless and does not require reversal. (Ibid.)
DISPOSITION
The orders are affirmed.
JACKSON, J. We concur:
PERLUSS, P. J.
ZELON, J.