Opinion
G058215
01-27-2020
In re CHRISTOPHER L., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. AMY T., Defendant and Appellant.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19DP0630) OPINION Appeal from an order of the Superior Court of Orange County, Gary L. Moorhead, Judge. Reversed. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
INTRODUCTION
Amy T., mother of Christopher L., appeals from the juvenile court's order assuming jurisdiction over Christopher under Welfare and Institutions Code section 300, asserting that the court did not obtain a waiver of her due process rights in open court. She has requested relief in the form of another jurisdiction hearing. Orange County Social Services Agency (SSA) opposes the appeal, arguing that Amy waived her rights when she signed form JV-190, Waiver of Rights - Juvenile Dependency. SSA argues that even if the juvenile court erred in not obtaining the waiver in open court, the error was harmless, in light of the form Amy signed.
All further statutory references are to the Welfare and Institutions Code.
We reverse. The record of the jurisdiction/disposition hearing is fatally inconsistent on this issue. The minute order records a finding of a waiver of due process rights by Amy and a joinder in the waiver by her appointed counsel. The reporter's transcript, however, is completely silent on this subject. Failure to obtain a waiver in open court was error, and on this record we cannot say the error was harmless.
FACTS
Garden Grove police took Christopher into protective custody on May 18, 2019, after he and Amy got into another of a long string of verbal and physical altercations, which had already given rise to at least 15 police responses since March 2017. Most, if not all, of the violence stemmed from Amy's obsessive focus on Christopher's grades and study habits. Christopher was placed in Orangewood; he later went to stay with an aunt.
The court detained Christopher on May 22. At that time, he was 17 years old.
The jurisdiction/disposition hearing took place on June 24, 2019. Amy pleaded no contest to the allegations of an amended petition. SSA recommended that Christopher return home under SSA supervision, with participation in services and a case plan. The court adopted this recommendation.
Three documents were before the court on June 24: a jurisdiction/disposition report, including a case plan, filed on June 19; a stipulation re: proposed orders & findings re: adjudication and disposition, filed on June 24 and signed by counsel for Amy, Christopher, and SSA (form F063-28-111), which included the amended petition; and a waiver of rights - juvenile dependency (form JV-190), signed by Amy and her counsel, and filed on June 24. This last document admonished the parent to "[r]ead this form carefully. The judge will ask you if you understand each right, and if you are voluntarily giving up that right."
The amended petition struck the allegations supporting jurisdiction under section 300, subdivision (a) (serious physical harm). The sole remaining allegations against Amy were based on section 300, subdivision (b)(1), failure to protect due to mental illness, developmental disability, or substance abuse. The amended petition also alleged failure to protect (failure to supervise) against Christopher's father, who was not involved in his son's life at all.
The minute order for the June 24 hearing represented that the court accepted the proposed orders and findings and made orders pursuant to the orders and findings of June 24 (i.e., form F063-28-111, the stipulation). The court found proper notice (as represented in the stipulation) and ordered the petition amended as agreed in the stipulation. Amy's waiver of rights (form JV-190) was received and filed, and the SSA jurisdiction/disposition report was accepted into evidence. The minute order recited, "Court finds mother intelligently, knowingly and voluntarily waives constitutional rights as advised. Counsel joins." The minute order then recited other findings regarding Christopher's dependency, his school, and approval of the case plan, which vested custody with Amy and released Christopher to her under SSA supervision.
The reporter's transcript for the June 24 hearing presents a somewhat different account of what transpired. After the appearances of counsel, the court dealt with notice, the SSA report, and the proposed orders and findings (form F063-28-111), one sentence each. The court then entered Christopher's parents' pleas (father submitted, Amy pleaded nolo contendere), ordered the petition amended, and found the allegations of the amended petition true. The court declared Christopher a dependent child, with custody vested with Amy under SSA supervision. It found Christopher's needs were being met and that he was enrolled in high school. The court approved the case plan, adopted SSA's recommendations, and set a further hearing date in December. That was the extent of the hearing, according to the transcript. After making their appearances, counsel said nothing until the very end of the hearing.
Amy has appealed from the jurisdiction and disposition order on the grounds that the juvenile court violated her due process rights and California Rules of Court, rule 5.682 by not obtaining a waiver of her rights in open court on the day of the hearing and obtaining the waiver on the record. The remedy Amy seeks is another jurisdictional hearing.
DISCUSSION
California Rules of Court, rule 5.682 provides: "(d) Admission, no contest, submission[.] The parent or guardian may elect to admit the allegations of the petition or plead no contest and waive further jurisdictional hearing. The parent or guardian may elect to submit the jurisdictional determination to the court based on the information provided to the court and choose whether to waive further jurisdictional hearing. If the parent or guardian submits to the jurisdictional determination in writing, Waiver of Rights - Juvenile Dependency (form JV-190) must be completed by the parent or guardian and counsel and submitted to the court.
"(e)Findings of court (§ 356.) After admission, plea of no contest, or submission, the court must make the following findings noted in the order of the court: "(1) Notice has been given as required by law; "(2) The birthdate and county of residence of the child; "(3) The parent or guardian has knowingly and intelligently waived the right to a trial on the issues by the court, the right to assert the privilege against self-incrimination, and the right to confront and to cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the parent or guardian's behalf; "(4) The parent or guardian understands the nature of the conduct alleged in the petition and the possible consequences of an admission, plea of no contest, or submission; "(5) The admission, plea of no contest, or submission by the parent or guardian is freely and voluntarily made; "(6) There is a factual basis for the parent or guardian's admission; "(7) Those allegations of the petition as admitted are true as alleged; or "(8) Whether the allegations of the petition as submitted are true as alleged; and "(9) The child is described by one or more specific subdivisions of section 300."
The court in In re Monique T. (1992) 2 Cal.App.4th 1372 (Monique T.) dealt with a similar situation, but one with a crucial difference. In Monique T., the juvenile court did not explain the mother's due process rights to her or obtain a personal waiver during the jurisdiction hearing. (Id. at p. 1377.) Instead, the court accepted the mother's counsel's representation that she had explained the rights to the mother and the mother was voluntarily waiving them. (Id. at p. 1376.) The reviewing court held that the failure to obtain a personal waiver was error (id. at p. 1377), but in light of the evidence before the juvenile court, the error was harmless. (Id. at p. 1378; see In re S.N. (2016) 2 Cal.App.5th 665, 672 [failure to obtain personal waiver from parent "error of constitutional dimension"].)
The crucial difference between the case before us now and Monique T. is that in this case, there was no representation from Amy's counsel in open court that she had explained the rights to Amy and obtained a voluntary waiver. Only form JV-190 makes this representation.
As a reviewing court, we are entirely dependent on the record when we make our decisions. Thus, the discrepancy between the representations of the minute order and what was recorded in the reporter's transcript is problematic. The minute order stated that the court found that Amy had "intelligently, knowingly and voluntarily" waived her constitutional rights and that counsel had joined in the waiver. According to the reporter's transcript, however, Amy's waiver, her constitutional rights, and form JV-190 were never mentioned during the hearing. After making her appearance, Amy's counsel said nothing until, at the end of the hearing, she was asked if she wanted to add anything to the record. She said no. The omission is even more disquieting in view of the promise on form JV-190 that "[t]he judge will ask you if you understand each right, and if you are voluntarily giving up that right." No one asked Amy any such thing, according to the reporter's transcript.
So what really happened at the jurisdiction/disposition hearing on June 24? Did the court reporter skip something? Or was something inserted into the minute order that did not occur? We have no way to tell.
We understand that our juvenile courts have an enormous workload and are under great pressure to handle cases expeditiously. They do so with remarkable aplomb and efficiency. But the pressure of the workload should not result in treating constitutional rights casually. The emphasis in California Rules of Court, rule 5.682(e) on obtaining a record of a knowing and voluntary waiver indicates that it is a crucial part of the jurisdiction/disposition process. We must have a clear record of waiver to establish that the parent's constitutional rights were protected. We do not have such a record in this case, and we therefore cannot say for certain that any error was harmless - in other words, that if Amy had been asked in open court whether she waived each right, she would have said yes (assuming she was not asked).
Moreover, the evidence supporting jurisdiction is not so overwhelming as to render the error, assuming it occurred, harmless beyond a reasonable doubt in the absence of an express waiver. (See Monique T., supra, 2 Cal.App.4th at p. 1378; In re S.N., supra, 2 Cal.App.5th at p. 672.) There is no evidence in the record that Amy has a substance abuse problem or a developmental disability. As for mental illness, while the record certainly paints a picture of someone with a poorly managed temper, it is not at all certain that this rises to the level of mental illness. Under these circumstances, we cannot excuse the juvenile court's possible failure to obtain an on-the-record waiver of rights.
DISPOSITION
The jurisdiction/disposition order of June 24, 2019, is reversed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.