In re Connor M.

Filed 9/12/07 In re Connor M. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Referee. Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Appellant Mandy M.

Christopher Blake, under appointment by the Court of Appeal for Appellant Brian B.

Raymond G. Fortner, Jr., County Counsel, Kim Nemoy, Senior Deputy County Counsel, for Respondent Los Angeles County Department of Children and Family Services.

___________________________

Appellants Brian B. and Mandy M. appeal the termination of their parental rights to Connor M. under Welfare & Institutions Code section 366.26.[1] The sole issue on appeal is whether the trial court erred in permitting Brian and Mandy to represent themselves throughout Connors dependency proceedings. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY[2]

In 1997 in Tulare County, Mandy failed to reunify with two older children because of long-term drug abuse, and her parental rights were terminated. Mandys three other children, Brandy, Nathan, and Connor, are the subject of dependency proceedings in Los Angeles County. Brian and Mandys parental rights to Brandy and Nathan were terminated in April 2006.

1. Brandy and Nathan.

In April 2000, when Brandy was 16 months old, Mandy gave birth prematurely to twins. Mandy tested positively for methamphetamine and marijuana, and the twins died shortly after birth. Brian visited Mandy in the hospital with Brandy. The social worker observed they looked dirty and unkempt. Mandy left the hospital early, and the social worker was unable to locate Brian, Mandy, or Brandy.

On May 5, 2000, Department of Children and Family Services (DCFS) filed a petition on Brandys behalf, and served the petition at Mandys mothers Sylmar home. On October 18, 2000, the court declared Brandy a dependent. DCFS was unable to locate Mandy and Brandy until September 2003, when a social worker paying an unannounced visit to Mandys mothers home found Mandy staying there with Brandy. DCFS learned that Mandy had given birth to Nathan in May 2001 in Las Vegas. Both Brandy and Nathan were taken into custody and placed in foster care.

In April 2004, DCFS obtained a restraining order against Brian. We affirmed on appeal that portion of the restraining order compelling Brian to refrain from harassing DCFS employees or the social worker assigned to the case and excluding him from DCFS offices. (In re Brandy M. (No. B 174727, September 27, 2005 [nonpub. opn.].)

On April 4, 2006, the dependency court terminated Brian and Mandys parental rights to Brandy and Nathan. We affirmed the termination order (In re Brandy M. (No. B190298, February 20, 2007 [nonpub. opn.]), and on April 25, 2007, the Supreme Court denied review.

2. Connor.

Connor was born in January 2005. Mandy listed her nieces name (Jessica M.) as the mother on Connors birth certificate. In September 2005, Mandy was arrested for possession of drugs in violation of her parole. Connor was in the car with her. At the time, she told police that her sister Jane M. (Jessicas mother) would take care of Connor, and the police released Connor to Janes care. On October 20, 2005, Barbara C., Brians adult daughter, contacted DCFS and advised DCFS that she had been caring for Connor. DCFS took custody of Connor the next day, and filed a section 300 petition on October 26, 2006, alleging that Connor was at risk due to Mandys substance abuse and Brians failure to protect.

(a) Detention and Jurisdiction.

The jurisdiction/detention report stated that Jane, Mandys sister, had cared for Connor since his birth because Mandy had given her custody of him prior to his birth. Barbara had become aware of Connor in September 2005, and told Brian that if he did not bring him to her, she would contact DCFS. Barbara told DCFS that when Brian was caring for Connor, he would leave Connor in the car all day with an alcoholic friend. DCFS recommended that no reunification services be ordered, and noted the collusion among Brian, Mandy, and their extended family to have Connor remain with Mandy despite her drug problems. DCFS recommended adoption as the permanency plan for Connor.

At the detention hearing held October 27, 2006, both Brian and Mandy requested to represent themselves in connection with Connors proceedings.[3] The court advised them of the dangers of self-representation and assured itself they understood the risk. Brian and Mandy requested a trial on disposition. The court ordered Connor detained, ordered reunification services, at least at this time, and ordered referrals for drug rehabilitation, random testing, parenting classes, and individual counseling for Mandy, and parenting and individual counseling for Brian. Both parents were given monitored visitation.

At the December 12, 2005 continued adjudication hearing, both parents appeared in pro per. Brian complained there had been a mix-up concerning visitation with Connor because the minute order did not reflect the courts order of visitation. The social worker believed that Connor had been ill on several occasions and that was the reason for the missed visitation. The court ordered visitation every Thursday.

Brian called as witness the police officer who arrested Mandy and the social worker for Brandy and Nathan. The social worker testified that DCFS did not recommend placing Connor with Jane, and the preadoptive parents of Brandy and Nathan did not want Connor.

(b) Disposition.

Prior to the January 27, 2006 disposition hearing, Brian filed numerous papers in support of his request for a writ of coram nobis. At the hearing, the social worker testified that Mandy had not enrolled in a drug treatment program, nor had she been testing. She testified Brian was aware that Mandy did drugs, and claimed he had not lived with her for two and one-half years. The matter was continued.

On February 6, 2006, Brian withdrew his request for writ of coram nobis, but filed new papers in support of his request for a writ of coram nobis, and filed declarations denying he used drugs and regarding his completion of a parenting class. At the February 6, 2006 continued disposition hearing, the court denied Brian relief on his writ on the grounds that the matters raised in his papers had already been ruled on by the appellate court.

At the hearing, Brian testified that he was unaware of Mandys drug problem. Mandy testified that Brian had provided her with income for the last two and one-half years; and that when she had lived with him, he had worked steadily. Brian had not given her any support for Connor, who lived with Jane after his birth. The social worker testified that DCFS did not recommend placing Connor with Brian because Brian knew of Mandys drug use; Mandy had not addressed her drug problem; and Brian continued his relationship with her in spite of her drug use. Furthermore, Brian never provided DCFS with employment verification; and he had previously used drugs and assisted in hiding Brandy and Nathan from DCFS. Mandy had listed a false mother on Connors birth certificate and had given birth to Nathan out of state in order to hide him. The social worker stated the problems in Mandys home (drugs and the failure to protect) have not been alleviated, and the Department recommended freeing Connor for adoption.

Michael Smith testified that he had been Brians roommate for two years, and had not seen Brian use any drugs. Smith stated that Brian was working, and testified Mandy did not live with them.

Brian testified that he did not have any knowledge whether Connor was at risk because of Mandys drug use. He had not gotten any counseling because he was too busy fighting the case.

DCFS argued that Mandy previously has had children removed from her care and parental rights terminated, and there was no evidence that Mandy had addressed the problems leading to the childrens removal. Furthermore, Brian had not established he was a presumed father because he had not taken the children into his home, he had not provided support, and he was not listed on Connors birth certificate. Brian continued to deny Mandys drug problem, and while he acknowledges that he needs counseling, he has failed to obtain it. Brian argued that no reasonable reunification services had been provided and there was no reason Connor could not be placed with him.

The court found by clear and convincing evidence that there was a substantial risk to Connor if he was returned to Mandy and Brian. The court noted that for the last nine years, Mandy had done nothing to alleviate her drug problem. Further, the court found Brian was an alleged father and not entitled to reunification, pointing out that [Father] is so busy fighting the system that hes not done any of the things necessary to have any of the children placed with him. The court noted that Brian could have taken Connor into his home at birth and provided for him, but instead Brian chose to ignore Mandys drug problem. The court found the parents were still together in this matter, regardless of where theyre living and what addresses they give. Mother never asked a question in this contest that was not handed to her by the father. Parents confer over each and every question. They came together, they left together.

The court ordered no further visitation, and set the matter for a permanency planning/section 366.26 hearing on June 5, 2006. The court ordered DNA testing of Mandy, her sister Jane, and Janes daughter Jessica (who was listed as Connors mother on the birth certificate) for the purpose of determining who was Connors mother.[4]

(c) Permanency Planning and Termination of Parental Rights.

A March 6, 2006 interim review report stated that Connor was in a new foster home where he was doing well. The foster parents were interested in adopting Connor.[5] A May 1, 2006 report stated that the home study on the foster parents was completed. The DNA testing was delayed, but progressing.

The Departments section 366.26 report prepared for the June 5, 2006 hearing recommended the termination of parental rights. Due to the ongoing DNA testing, the hearing was continued several times. In August 2006, Brian filed a brief in opposition to the termination of parental rights and his declaration in support. At the September 5, 2006 hearing, the court set the termination hearing for November 9, 2006.

Brian appeared at the November 9, 2006 section 366.26 hearing. Janes daughter testified that she was not Connors mother, and the court made a finding of non-maternity. At the continued hearing held November 15, 2006, Mandy was not present. Joseph Lotta of DCFS testified he was the supervisor on Connors case, and that the foster parents wished to adopt Connor. The social worker was not present because she was on stress disability leave. The court found she was unavailable, and that she would offer no testimony in addition to Lottas testimony, and therefore denied Brians request for a continuance until she would be available.

At the continued November 20, 2006 hearing, the court found Connor to be adoptable. The court further found that none of the exceptions under section 366.26, subdivision (c)(1)(A) or (c)(1)(E) applied. In its written findings, the court acknowledged that visitation with Connor terminated at disposition hearing and that prior to that time, the parents visited regularly. However, the court found no evidence of a relationship between the parents and Connor, or that continuing the relationship would be beneficial to Connor. Furthermore, there was no evidence of any sibling relationship because the siblings never resided together.

DISCUSSION

Mandy and Brian contend the trial court erred in permitting each of them to represent himself or herself, and that such error was not harmless beyond a reasonable doubt under the standard of Chapman v. California (1967) 386 U.S. 18. DCFS contends as a threshold issue that Brian, as an alleged father, has no standing; the court did not err in permitting the parents to represent themselves; and any error is harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836.

A. Factual Background.

At the detention hearing, after Brian and Mandy requested to represent themselves, the court stated:

I need to advise you both it is generally not a wise choice to represent yourself in these matters. If the petition is found to be true and I believe you are possibl[y] aware of this since you have other children in the system that Connor can be placed out of you care and custody and eventually parental rights can be terminated. And he could be freed for adoption.

I need you to understand [the] court will not give you any special consideration because you are representing yourself. You will be opposed by a trained attorney who is knowledgeable in all the evidence. You must comply with all rules of court procedures and evidence.

Issue of incompetency of counsel is weighed as an issue on appeal. Any disruptive behavior on your part could result in [the] court terminating your pro per status.

I need you to understand if you cannot afford an attorney, you have a right to have one appointed at no cost to you, especially [Mother].

I understand Mr. Fuss co-represents you in the other childrens matter. He will also be the one to represent you in this case. . . .

Do you understand the consequences of your choosing to represent yourself?

Minors Father: Yes. And one of the reasons I want to represent myself is because my status of this case is really as a father, not the parent because the parent who has been the parent to Connor has been Jane [M.]. Shes been taking care of him. Shes had him since his birth, so the part of my case I think I have is I am the father, but I have not been the parent to the child. . . .

The Court: And you do not wish to have an attorney represent you?

Minors Father: Not at this time, no.

The Court: [To Mother]: Maam, do you understand?

Minors Mother: Yes.

The Court: And you do not wish to have an attorney represent you?

Minors Mother: No not at this time.

The Court: And you understand you will need to comply with the law. This court cannot take arguments like, Im not the parent, [it] is not going to go very far in front of me.

Do you understand that?

Minors Father: Yes, I understand. I was trying to make a point. As far as the detention petition, the report does not really apply to me.

The Court: Well, Im trying to make a point that you need to understand the law; you need to understand the code; you need to understand the case law, the rules of evidence in order to act as your own attorney.

Are you going to be able to do that?

Minors Father: Im going to try.

The Court: [To Mother]: Maam?

Minors Mother: Yes.

The Court: Do you have [ ] special legal background that would assist you with this? . . .

Minors Father: Im sorry. No. The only legal background I have is trying to put together legal briefs to the appellate court and the Supreme Court on my other as and its been thats the only legal thing that I have been doing.

The Court: [To Mother] Maam, do you have a legal background?

Minors Mother: No.

The Court: Court finds Mother and Father [have] knowingly, intelligently given up their right to counsel and that they represent themselves.

B. Discussion.

1. Father Has Standing to Appeal.

An alleged biological father who appears at the earliest practical point and attempts to join the dependency proceeding has standing to appeal. (In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1115-1117.) Although the Department is correct that as a general rule an alleged biological father who is not a party to the proceedings has no standing to appeal an order terminating parental rights (In re Joseph G. (2000) 83 Cal.App.4th 712, 716), the rule does not apply where the alleged father has appeared and asserted a position (In re Paul H. (2003) 111 Cal.App.4th 753, 759). (In re Baby Boy V., supra, 140 Cal.App.4th at p. 1117.) In In re Paul H., supra, 111 Cal.App.4th 753, the alleged father addressed the court at the jurisdiction hearing and indicated that he might be the minors father. He then worked diligently to try to establish paternity, but without considering the alleged fathers efforts, the court terminated parental rights. (Id. at pp. 756-758.) The court reversed, finding the alleged father had standing to appeal because he appeared at the hearing and asserted a position, i.e., his possible paternity, and took immediate steps to become a party once he was notified of the dependency proceedings. He contacted the social worker, appeared at the next court hearing, communicated to the court that he might be the minors father and attempted to complete paternity testing. Under such circumstances, appellant has standing on appeal to raise issues concerning his parental interest in the minor. (Id. at p. 759.) Here, Brian has asserted his parental rights throughout the proceedings and therefore has standing.

2. The Trial Court Did Not Err In Permitting Mandy and Brian to Represent Themselves.

While there is no constitutional right to self-representation in dependency proceedings, a parent has a statutory right to self-representation under section 317.[6] (In re Angel W. (2001) 93 Cal.App.4th 1074, 1082-1084.) In particular, [s]ection 317, subdivision (b) gives the parent the right to waive counsel in the circumstance where appointment of counsel is mandatory. . . . This limitation on the courts duty to appoint counsel is implicit recognition that the primary right of the parent is self-representation. (In re Angel W., supra, 93 Cal.App.4th at p. 1083.) Thus, [a] parent may waive counsel at any point, and the court must respect the right of the parent to represent him- or herself as a matter of individual autonomy and avoid forcing the mentally competent parent to proceed with appointed counsel in the guise of protecting a person who is unskilled in the law and courtroom procedure. (Id. at pp. 1083-1084.)

Because the right 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, supra, 46 Cal.2d at p. 836. Under that standard, we ascertain whether it appears reasonably probable a result more favorable to Brian and Mandy would have been obtained had their requests for self-representation been denied.

Here, the dependency court did not err in permitting Mandy and Brian to represent themselves. After thoroughly explaining the risks of self-representation, the court ensured Brian and Mandy were aware of the dangers and disadvantages of self-representation before accepting their waiver of the right to counsel. The court explained that they needed to understand the law and rules of evidence in order to act as their own attorneys, and Brian indicated he would try to do so. Brian admitted that he had limited legal background, as did Mandy, but that they nonetheless wished to represent themselves.

Additionally, denial of pro. per. status would not have altered the outcome of these proceedings. Due to their previous failures to reunify, no reunification services were ordered for Brian or Mandy. Neither Brian nor Mandy had attempted to address the problems leading to Connors detention; Brian continued to deny Mandy used drugs, while Mandy refused to obtain drug counseling or submit to testing. Therefore, even if the parents had been represented by counsel, because of their failure to reunify, it is not likely that the result in the dependency court would have been different.[7] Accordingly, any conceivable error is harmless.

DISPOSITION

The order of the superior court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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Analysis and review provided by Santee Property line attorney.

[1] All statutory references herein are to the Welfare & Institutions Code.

[2] A portion of the factual background is taken from our opinions in In re Brandy M. (September 15, 2004, No. B 174274 [nonpub. opn.]), In re Brandy M. (September 27, 2005, No. B 174727 [nonpub. opn.]), and In re Brandy M. (February 20, 2007, No. B 190298 [nonpub. opn.]).

[3] With respect to Brandy and Nathans proceedings, Brian and Mandy continued to be represented by counsel.

[4] Brian appealed the courts order for DNA testing contending that in addition to Mandy, Jane, and Jessica, he should be tested to demonstrate he is Connors biological father for purposes of establishing he is Connors presumed father. We affirmed the courts DNA testing order. (In re Brandy M. (February 20, 2007, No. B 190298 [nonpub. opn.].)

[5] On March 28, 2006, the court granted de facto parent status to Connors previous foster parents.

[6] Section 317 subdivision (b) provides: (b) When it appears to the court that a parent ... 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, unless the court finds that the parent . . . has made a knowing and intelligent waiver of counsel as provided in this section.

[7] We note that Brian was an alleged father and not entitled to counsel in any event. (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.)