In re Christopher H.
Filed 3/2/07 In re Christopher H. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re CHRISTOPHER H., A Person Coming
Under the Juvenile Court Law.
SANTA CLARA COUNTY DEPARTMENT OF
FAMILY AND CHILDRENS SERVICES, H030197
Plaintiff and Respondent, (Santa Clara County
Super. Ct. No. JD07655)
v.
HELEN W.,
Defendant and Appellant.
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Appellant Helen W. challenges the juvenile courts orders taking jurisdiction over her 15-year-old son Christopher H., removing him from parental custody and placing him in foster care. She claims, among other things, that she was denied due process when the court held the jurisdictional hearing in her absence after continuing it for the appointment of counsel and proceeding without appointing counsel to represent her. We conclude that the juvenile court erred in proceeding with the jurisdictional hearing under the circumstances and remand the matter for a new jurisdictional hearing.
I. Background
Helen and Robert H. are Christophers parents.[1] In March 1996, Christopher and his younger brother Curtis were detained, and a petition was filed under Welfare and Institutions Code section 300, subdivision (b). Curtis had been found in a car being driven by a very drunk non-relative adult. Christopher, then five years old, had been found with no adult present in a home that was dangerous and unsanitary. The court took jurisdiction over the children. Helen and Robert were provided with reunification services, but Helens services were terminated in March 1998. Helens subsequent Welfare and Institutions Code section 388 petition was granted, and both boys were returned to her care with family maintenance services. The dependency case was dismissed in March 1999. In 2004, the boys were removed from Helens custody in Nevada and placed in foster care. They were subsequently placed in Roberts custody.
Robert was arrested on the evening of January 25, 2006 for violating his parole by being under the influence of a controlled substance.[2] At midnight that night, Christopher was in a car with two of his uncles when the car was pulled over by the police for an equipment violation. Both the uncle driving the car and the other uncle were arrested for being under the influence of a controlled substance. Since no other relative could be located to take custody of Christopher, Christopher was detained and taken to the childrens shelter. Robert was expected to be incarcerated in state prison for at least several months and possibly a year.
Helen appeared at the January 30, 2006 detention hearing, and she seemed to be under the influence of alcohol or drugs. Although the court informed Helen that she qualif[ied] for a court-appointed attorney and that the court would be happy to appoint an attorney, Helen declined to have an attorney appointed to represent her.[3] Ive been through this, and Im okay. I know I can deal with it-- The court found that Helen had made a valid waiver of counsel. Robert acknowledged that he was unable to arrange care for Christopher. Both Helen and Robert waived their rights, and Christopher was detained. The jurisdictional hearing was set for February 22, 2006 at 8:30 a.m. At the conclusion of the detention hearing, the court urged Helen to consider having an attorney represent you. Helen responded Okay.
An amended petition was filed alleging that Christopher came within Welfare and Institutions Code section 300, subdivision (b).[4] It alleged that Robert had a substance abuse problem, was on parole and was in jail for violating his parole by being under the influence of a controlled substance. The petition also alleged that Helen had a substance abuse problem which had led to the Nevada dependency case that had resulted in Christopher being placed in Roberts custody after Helen failed to reunify with Christopher. Both Helen and Robert were alleged to have histories of driving under the influence, being under the influence and possessing controlled substances.
Between the detention and jurisdictional hearings, Helen was uncooperative with and abusive toward the social worker. Helens adult daughter told the social worker that she was willing to care for Christopher.
Helen appeared for the scheduled jurisdictional hearing on February 22. When the court asked her if she had read the jurisdictional report, Helen asserted that it contained a lot of stuff . . . thats not true. The court asked Helen if she had given any more thought to having an attorney appointed to represent her. Helen responded by asserting that she wanted Christopher to come home with me even if he would eventually return to Roberts custody after Robert was released.
The following colloquy then occurred. THE COURT: Okay. Let me get back to my original question, maam. Are you willing to let me appoint a lawyer for you? Because I really think that youd understand whats going on better. [] THE MOTHER: All right. [] THE COURT: Okay. Heres the problem. I cant appoint an attorney in the afternoon because theyre only here in the morning to be appointed. So are you willing to come back tomorrow morning just to get an attorney appointed for you? [] THE MOTHER: Yes, I can come back. [] THE COURT: Okay. Then thats what Id like to do. And once you have an attorney, its very likely your attorney cant go forward tomorrow morning because theyre going to want to read the report and interview you. But your comments about things not being true and basically what we do about [it], your attorney can advise us about how to go forward and what the options are.
After a brief discussion of other topics, the court concluded the hearing with the following statement. So what Im going to do is put this over to the morning, and I will appoint an attorney for [Helen] tomorrow morning, and she can talk to her attorney about how she wants to go forward. And well go from there. Okay. Thank you both for coming back. Well be back tomorrow morning then. The minutes reflect that the jurisdictional hearing was continued to the next morning at 8:30 a.m.
The next morning, at 10:20 a.m., Helen had not yet appeared, and the court decided to go forward with the jurisdictional hearing without her. THE COURT: For the record it is 10:20. And this matter was set yesterday morning. We did not get to it in the morning, so it was pushed to the afternoon. When she got here for the afternoon, [Helen] . . . did indicate that she had a number of problems with the report, thought there were things in there that were not true. I asked her to please let me appoint an attorney for her. She said okay. And I said but I cant do that until tomorrow morning, so I need you to come back tomorrow morning at 8:30 so we can do that. She indicated that she did plan to be here. So were going to go forward because it is 10:20 now and she knew to be here at 8:30. Im not going to put the matter over any longer. I understand there is a request to continue disposition, so she will certainly have an opportunity to appear again. But as to jurisdiction, I do want to go forward.
The other parties then submitted the matter, and the court found the amended petition true, took jurisdiction over Christopher and scheduled the dispositional hearing for March 16.
Less than an hour later, Helen appeared in court, and the court recalled the matter. An attorney appeared, stated that Helen qualifies for our services and asked to be appointed to represent her. The court made the following statement. Good morning. Okay. I recalled this matter to appoint an attorney for [Helen]. . . . It is for the record about 11:14 a.m., and the matter was called at 10:20, so we did complete jurisdiction. And Im recalling this only to appoint an attorney for [Helen]. The next hearing is already scheduled. Thats disposition, and thats March the 16th. So, [Helen], I ask that you work with your attorney so she can get you up to speed about whats happening. And well be back March 16th. Helen responded All right. Thank you. This concluded the hearing.
The social workers dispositional report contained further information about the 2004 Nevada dependency case. On August 30, 2004, Curtis and Christopher were found by their father wandering the streets, unable to locate their mother. The next day, Helens other two children (ages 3 and 1) were found without supervision, unkempt, filthy and homeless. After the children were detained, Helen threatened to take the children and run. A drug test revealed that Helen was under the influence of methamphetamine and opiates. Helen then left the area and refused to participate in any services. Helens adult daughter had custody of one of Helens younger children. None of Helens other children were in Helens custody.
On March 16, the dispositional hearing was continued at Helens request for a contested hearing on April 5, 2006.[5] Helen was seeking immediate custody of Christopher. Robert, who remained incarcerated and was tentatively scheduled for release from prison in July 2006, was not contesting disposition. Helen did not appear at the scheduled contested dispositional hearing. Her trial counsels request for a continuance was denied. The other parties submitted the matter, and Helens trial counsel offered no comments. The court removed Christopher from Roberts custody and found that placement of Christopher with Helen would be detrimental to him. Christopher was placed in foster care, and both Helen and Robert were granted reunification services. Helen filed a timely notice of appeal.
II. Analysis
Helen raises several issues on appeal, but we reach only her contention that the juvenile court deprived her of due process when it proceeded with the jurisdictional hearing in her absence and without appointing counsel to represent her.[6]
It is axiomatic that due process guarantees apply to dependency proceedings. [Citations.] Parties to such proceedings have a due process right to confront and cross-examine witnesses, at least at the jurisdictional phase. [Citations.] The essence of due process is fairness in the procedure employed; a meaningful hearing, one including the right to confront and cross-examine witnesses, is an essential aspect of that procedure. [Citations.] But due process also is a flexible concept, whose application depends on the circumstances and the balancing of various factors. (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 756-757.)
Impairment of the fundamental right to parent must comport with the requirements of procedural due process. [Citation.] Procedural due process is not absolute. [O]nce it has been concluded that a due process right exists, we balance . . . factors . . . to decide what process is due. [Citation.] This flexible balancing standard considers (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citations.] In juvenile dependency litigation, due process focuses on the right to notice and the right to be heard. (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1129, internal quotation marks omitted; David B. v. Superior Court (2006) 140 Cal.App.4th 772, 780.)
By holding the jurisdictional hearing in Helens absence and without appointing counsel to represent her, the juvenile court deprived Helen of a meaningful jurisdictional hearing. Helen clearly intended to contest jurisdiction, and the courts action eliminated her opportunity to do so. The question is whether a balancing of interests reflects that the courts actions were fair. First, Helens interest in parenting her son is a constitutionally protected one that is entitled to significant weight. Second, due to the courts actions, the jurisdictional petition went unchallenged, so there was a substantial risk of an erroneous deprivation of Helens parental rights. Third, because Helen did not have an attorney representing her, but had been led to believe that an attorney would be appointed to represent her and the hearing very likely continued to permit the attorney to consult with her, Helen had not been fully informed about the proceedings and had no opportunity to present her side of the story. Finally, the additional burden of postponing the hearing was practically nonexistent since all parties expected the jurisdictional hearing to be continued after counsel was appointed to represent Helen. These factors weigh strongly in favor of a finding that Helens due process rights were violated.
The Santa Clara County Department of Family and Childrens Services (the Department) argues that Helens rights were not violated because she waived her rights by failing to appear at 8:30 a.m. on February 23. We do not view Helens belated appearance on February 23 as a knowing waiver of her due process rights. While the juvenile court commissioner adamantly insisted on February 23 that she had told Helen on February 22 to come back tomorrow morning at 8:30 and that Helen knew to be here at 8:30, the record contains no support whatsoever for the commissioners assertions. The juvenile court commissioner actually told Helen on February 22 to come back tomorrow morning just to get an attorney appointed for you and never told her what time to be there in the morning. The only indication anywhere in the appellate record before us that the hearing had been scheduled for 8:30 a.m. on February 23 is a notation in the minutes of the February 22 hearing, and there is no evidence that Helen had a copy of these minutes or knowledge of their contents prior to the morning of February 23.
No doubt Helen should have apprised herself of the specific time that she was expected to return on the morning of February 23, but her negligence in failing to do so should not have resulted in her being completely deprived of any opportunity to participate in the jurisdictional hearing. Helen had appeared at the scheduled time for the February 22 jurisdictional hearing, and she had made clear that she intended to contest jurisdiction. It was only after the juvenile court commissioner persuaded her that she needed an attorney that Helen agreed to return the next day for appointment of an attorney. And the juvenile court commissioner told Helen that it was very likely that the jurisdictional hearing would not go forward tomorrow morning because Helens attorney would need time to determine how to proceed. Given these statements, Helen, an unsophisticated person without an attorney to advise her, would not necessarily have understood that she would forfeit her right to participate in the jurisdictional hearing by failing to appear at 8:30 a.m. on February 23. She may have thought that an appearance anytime that morning would be sufficient or that the hearing was not going to go forward that day due to the newly appointed attorneys need to prepare. Helen also would not necessarily have understood that her failure to appear would preclude the appointment of an attorney for her and preclude that attorney from seeking the continuance that the juvenile court commissioner had said was very likely. We reject the Departments contention that Helen waived her rights by failing to appear at 8:30 a.m. on February 23.
The Departments main argument appears to be that the juvenile court did not err because it could not appoint counsel without Helen appearing and establishing that she qualified for appointed counsel. 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. (Welf. & Inst. Code, 317, subd. (b).) The problem with the Departments argument is that the juvenile court had already made a finding at the detention hearing that Helen qualified for appointment of counsel. So Helens absence did not preclude the appointment of counsel.
The only remaining question is whether the due process violation necessitates reversal. [A] constitutional due process violation in the dependency context requires application of the harmless beyond a reasonable doubt standard, since the error is of federal constitutional dimension. (In re Vanessa M., supra, 138 Cal.App.4th at p. 1132.) The Department does not attempt to shoulder its burden of establishing that the due process violation was harmless beyond a reasonable doubt. Since Helen was not permitted to participate in the jurisdictional hearing, and the hearing went forward without opposition, we cannot find the error harmless beyond a reasonable doubt. Had she had the opportunity to challenge the assertion of jurisdiction, Helen might have been able to establish that Christopher was not currently at substantial risk of suffering serious physical harm. (Welf. & Inst. Code, 300, subd. (b).) The record does not preclude such a possibility. Depriving her of that opportunity was not harmless beyond a reasonable doubt.
III. Disposition
The juvenile courts orders are reversed, and the matter is remanded for a new jurisdictional hearing.
_______________________________
Mihara, J.
I CONCUR:
_____________________________
Duffy, J.
I CONCUR IN THE JUDGMENT ONLY:
______________________________
Bamattre-Manoukian, Acting P.J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by San Diego County Property line attorney.
[1] Although they remain married, they have apparently been separated for five years.
[2] He was also found in possession of methamphetamine.
[3] Helen did not sign the stipulation to have a commissioner serve as a temporary judge, nor is there any indication in the record that Helen was aware at the time of the detention or jurisdictional hearings that the judicial officer presiding was not a judge.
[4] The original January 2006 petition contained allegations under both Welfare and Institutions Code section 300, subdivision (b) and subdivision (g), but the amended petition filed on February 17, 2006 contained only subdivision (b) allegations.
[5] On March 16, Helens attorney signed a stipulation to the commissioner serving as a temporary judge.
[6] Her other contentions are obviated by our remand for a new jurisdictional hearing. Even her challenge to the sufficiency of the petition is not ripe at this point, since the petition may yet be amended again prior to a new jurisdictional hearing.
