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S.S. v. Superior Court of Los Angeles Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 23, 2012
B237002 (Cal. Ct. App. Jan. 23, 2012)

Opinion

B237002

01-23-2012

S.S. et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

Law Offices of Timothy Martella, Melissa Chaitin, and Lori Davis for Petitioner S.S. Law Office of Alex Iglesias, Steven Shenfeld, and Wendy Kingston for Petitioner A.A. No appearance for Respondent. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel, for Real Party in Interest.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK75981)

ORIGINAL PROCEEDINGS in mandate. Stephen Marpet, Court Commissioner, Judge. Petitions denied.

Law Offices of Timothy Martella, Melissa Chaitin, and Lori Davis for Petitioner S.S.

Law Office of Alex Iglesias, Steven Shenfeld, and Wendy Kingston for Petitioner A.A.

No appearance for Respondent.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel, for Real Party in Interest.

On September 20, 2011, the dependency court issued an order denying A.A. (Father) and S.S. (Mother) (collectively the Parents) reunification services and setting a Welfare and Institutions Code section 366.26 hearing for January 12, 2012. On November 28, the Parents filed separate petitions for writ of mandate seeking to vacate the September 20 orders. They alleged the court erred by denying their motions to proceed in propria persona. On November 30, we issued an order directing real party in interest, the Los Angeles County Department of Children and Family Services (DCFS) to show cause why the relief requested should not be granted and staying the January 17, 2012 hearing. We now deny the writ petitions and vacate the stay.

All further statutory references are to the Welfare and Institutions Code.

Apparently unaware that their counsel had filed the instant writ petitions, the Parents requested an extension of time to file their petitions. We initially granted the extension, but in light of counsel's filing, the extension is no longer necessary.

FACTUAL AND PROCEDURAL BACKGROUND

Given the issue presented, we will not include all of the information provided in the DCFS reports.

On April 16, 2008, DCFS received a referral alleging neglect of S.E. (born Oct. 2005) by Mother. The child was hospitalized the previous day when he experienced breathing problems. He was found to be anemic and developmentally not on target. When S.E. was released from the hospital, Mother was instructed to follow up at a failure to thrive clinic. The list of medical concerns for the boy included: failure to thrive/oral aversion, delayed speech, anemia, eczema, undescended testes, severe tooth decay, and asthma.

In May 2008, Mother signed a voluntary family maintenance contract, promising to provide S.E. with care for his special needs. Over the ensuing months, Mother repeatedly missed the child's medical, dental, and therapy appointments. She told social workers that her religious beliefs were not compatible with conventional medicine.

On January 15, 2009, after Mother's failure to provide S.E. with the necessary treatment for his asthma caused him to be rushed to the doctor, DCFS determined that S.E. was not getting adequate care for his problems. The child was detained from Mother and placed with the maternal grandparents.

On January 21, DCFS filed a petition pursuant to section 300, subdivision (b), alleging that Mother had failed to protect S.E. Father filed a statement with the court declaring that he was S.E.'s parent. The court issued a temporary restraining order barring Mother from having contact with the maternal grandparents and S.E. after it learned that the Parents had gone to the grandparents' home the previous night and had demanded S.E.'s return. When the grandparents explained to the Parents that S.E. had to stay at their home until the court ordered otherwise, the Parents attempted to take S.E. by force. Mother became violent and struck the maternal grandparents.

On January 23, the court ordered monitored visitation for the Parents. The case was continued to February 10, 2009, for a contested adjudication.

At a January 29 team decision meeting, Mother denied that she struck the grandparents on the night she and Father went to the grandparents' home. The grandparents believed that Mother might have been under the influence of drugs, as her violent behavior was out of character. According to the social worker, "Mother takes no responsibility and doesn't exhibit any understanding of why the court is now involved." The Parents refused to participate in monitored visitation.

On February 9, 2009, Mother filed three motions: (1) to dismiss the case; (2) to "compel the court to indentify [sic] itself"; and (3) to protect her legal rights, wherein she stated that she "has opted to exercise her right to proceed in pro per persona." She also filed an affidavit in support of a petition for a writ of habeas corpus.

On February 10, DCFS filed an amended petition, again alleging Mother had failed to protect S.E. The scheduled adjudication was continued to April 1, 2009, and Mother's motion to dismiss was held in abeyance until that date.

On April 1, 2009, the Parents filed an advisement and waiver of right to counsel. Mother also filed a document entitled "Affidavit of Truth," in which she stated that she was not bound by the laws of any government, and a "Declaration of facts," that challenged the jurisdiction of the court. Father filed similar documents. The April 1 hearing was continued to April 27.

On April 25, 2009, the Parents abducted S.E. from the site of a monitored visit. On April 27, the court issued a protective custody warrant for S.E. and arrest warrants for the Parents.

On May 29, 2009, DCFS filed a second amended petition that added the allegation that the Parents abducted S.E. during a monitored visit and endangered the child. DCFS gave notice that it might seek an order that the Parents receive no reunification services pursuant to section 361.5, resulting in immediate permanency planning.

After several continuances, on September 30, 2009, the court denied the Parents' counsel's request for a further delay in the proceedings, found Father to be the biological alleged father of S.E., and sustained the amended petition.

On February 20, 2011, Father was arrested in New Orleans and provided information as to the whereabouts of Mother and S.E. On March 4, Mother and S.E. were located in the New Orleans area and Mother was arrested. The next day, DCFS picked up S.E. and transported him back to Los Angeles. He was placed with the maternal grandparents.

On April 15, 2011, Mother, who was in custody, appeared in court with counsel. She informed the court that she wanted to represent herself. The court gave Mother forms related to her request, told her to complete them, and trailed the matter to April 19. On the 19th, the court asked Mother if she still wanted to represent herself. After she replied that she did, the court advised her that it was not in her best interest to do so. It explained that dependency law is a specialized area that was practiced by experts and that if Mother was incapable of presenting her case in the best light, she could lose her parental rights to S.E. Mother responded that she was an "indigenous Washitaw Moor" and the court had no jurisdiction over her. After Mother insisted that she had been representing herself since her initial appearance in January 2009, the court denied her pro. per. request. The matter was continued to May 23, 2011, for disposition.

In it disposition report, DCFS recommended that no reunification services be provided to the Parents pursuant to section 361.5, subdivision (b)(15). The subdivision states that reunification services may be denied when a parent abducts the child from his or her placement and refuses to disclose the child's whereabouts or return the child to his or her placement or the social worker. DCFS noted that the physical problems S.E. had at the time of his initial detention were not addressed during the two years following his abduction. The child continued to be at risk for failure to thrive, as he had gained only five pounds in two years.

On May 17, 2011, Father appeared in court. The court was informed that he was in custody on a criminal matter. The court ordered Father to return for the May 23 disposition proceeding.

On May 23, 2011, the disposition was continued to July 27, 2011, for a contested hearing. In a report for the July 27 hearing, DCFS informed the court that S.E. was in therapy to address issues related to past trauma and separation from his parents. The therapist told the social worker, "'There has been no progress in meeting the goals. He continues to be mute in all environments outside his home and immediate family.'" The child was extremely fearful, which the therapist attributed to mental health issues and lack of trust. DCFS reported that S.E.'s physical condition had improved since his placement with the maternal grandparents. It also noted that the Parents had a pending criminal case.

On July 27, the court again denied the Parents' request to proceed pro. per. The hearing was continued to September 20, 2011, due to a conflict with the Parents' criminal matter.

On September 8, 2011, at the request of DCFS, the court issued a three-year restraining order barring the Parents from having any contact with the maternal grandparents or S.E. Prior to the September 20 hearing, Father filed a motion challenging the bench officer pursuant to Code of Civil Procedure section 170.6, which was denied as untimely. The record contains a motion prepared by Mother challenging the bench officer pursuant to Code of Civil Procedure section 170.1; however, the motion does not have a stamp indicating that it was filed prior to the September 20 hearing. (The court allowed the motion to be filed on the day of the hearing and summarily denied it.) On September 19, the court was advised that the Parents had been granted pro. per. status in their criminal case.

On September 20, Father's counsel filed a motion to withdraw, stating that she could not properly represent Father due to his refusal to cooperate. At the hearing held that day, Mother's counsel informed the court that Mother wished to represent herself. Counsel said she had concerns about her ability to represent Mother. The court denied Mother's pro. per. request and Father's attorney's motion to withdraw. It concluded that the attorneys for the Parents were "more than capable" of handling the disposition and "vigorously" representing their clients' interests. Pursuant to section 361.5, subdivision (b)(15), the court denied the Parents reunification services, finding it was not in S.E.'s best interest to order such services. The matter was set for a January 17, 2012 section 366.26 hearing.

DISCUSSION

The Parents contend the court abused its discretion by denying their requests to represent themselves. They correctly note that section 317, subdivision (b) gives them a statutory right to self-representation, subject to certain limitations. (In re A.M. (2008) 164 Cal.App.4th 914, 923.) However, they do not address the dispositive issue in this case. "Because a parent's right to self-representation in a juvenile dependency proceeding is statutory, rather than constitutional, our review of the assertion of the right to self-representation is evaluated under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. [Citation.] Under that standard, we ascertain whether it appears reasonably probable [the Parents] would have obtained a more favorable result if the juvenile court had granted [their] requests for self-representation." (In re A.M., supra, at p. 928.)

Even if we were to assume that the trial court erred by denying the Parents' requests for self-representation (a finding we do not make), any error was harmless. The court had to determine whether the Parents abducted S.E., kept his whereabouts unknown from DCFS, and refused to return him to the maternal grandparents with whom he had been placed. At no time did the Parents dispute they had done so. We note that on October 27, 2011, the Parents pled no contest to the felony charge of child stealing in violation of Penal Code section 278 and the misdemeanor charge of failing to provide S.E. necessary food, clothing, shelter, medical attention, or other remedial care in violation of Penal Code section 270. Once the court concluded that the Parents had abducted S.E., it could not order reunification services unless it found, "by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) The simple fact is that S.E. suffered substantial physical and emotional harm while in the Parents' care. Whether the Parents represented themselves or not, that fact cannot be changed. Given the limited circumstances under which the court could have provided reunification services to the Parents, it would have been error to do so. The evidence compels one conclusion. It is not in S.E.'s best interest that he and his parents reunify. Because it is not reasonably probable that the Parents would have received reunification services if the court had granted their motions for self-representation, relief is not warranted.

We take judicial notice of the records in the Parents' criminal case, No. BA356908. The parties were advised that we were considering doing so and were given the opportunity to address the issue.
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In her reply brief, Mother contends for the first time that the juvenile court abused its discretion by denying her request for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Although Mother noted in her petition that "the court also failed to hold a 'Marsden-type' hearing," she did not assign that failure as error. In her petition, Mother raised a single argument under the heading: "The Juvenile Court Abused Its Discretion in Denying Mother's Requests to Represent Herself in the Dependency Court Proceedings." "[T]he appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made; otherwise, the point will be forfeited." (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.) We conclude Mother's failure to advise the court and the opposing party in her petition that she was claiming prejudicial Marsden error forfeits the contention. (Ibid.)

In any event, Mother's claim fails on the merits. We were able to find only one occasion when Mother requested a new attorney on the record. At the July 27, 2011 hearing, Mother's counsel informed the court that if Mother's pro. per. request is denied, "she would like to have someone that she believes is better versed in dependency law."

The court replied that "as far as Marsden is concerned, you've [(Mother)] previously been advised about [your counsel's] qualifications as an expert in dependency court. She's not a public defender. She is a lawyer assigned to dependency court. [This case is] not in the criminal system at all. So your referral to her as a public defender is inaccurate. She is a lawyer in a very specialized practice of dependency, not criminal. And she is your attorney." After Mother stated, "I need an attorney that has a closer understanding of my case, in particularly who is able to put up a legal defense to my case," the court explained the petition had been sustained and that Mother must be confusing the dependency proceeding with her unresolved criminal matter which was scheduled for the same day. Mother said nothing further. We imply from Mother's silence that the court was correct.

We find, contrary to Mother's assertion, that the court conducted a Marsden hearing. As Mother does not contend the court abused its discretion in denying the motion, we need go no further.

DISPOSITION

The petitions for writ of mandate are denied. The stay of the section 366.26 hearing is vacated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J. We concur:

EPSTEIN, P. J.

WILLHITE, J.


Summaries of

S.S. v. Superior Court of Los Angeles Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 23, 2012
B237002 (Cal. Ct. App. Jan. 23, 2012)
Case details for

S.S. v. Superior Court of Los Angeles Cnty.

Case Details

Full title:S.S. et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 23, 2012

Citations

B237002 (Cal. Ct. App. Jan. 23, 2012)