In re R.P.

Filed 3/16/07 In re R.P. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

In case No. C049864, appellant John P., father of the minor, appeals from an order continuing the minor as a dependent of the court. (Welf. & Inst. Code, 387, 395.)^[1] In case No. C051569, he appeals from the orders of the juvenile court terminating his parental rights. ( 366.26, 395.) On August 22, 2006, this court ordered the appeals consolidated for decision.

We conclude the juvenile court erred prior to the filing of a section 387 petition when it dismissed appellants counsel without appointing new counsel. Accordingly, we will vacate the orders entered at the section 387 hearing which continued the minor as a dependent of the court (case No. C049864), as well as the subsequent orders terminating appellants parental rights (case No. C051569), and direct the juvenile court to appoint counsel for appellant and to hold a new section 387 hearing.

Background

The minor was taken into protective custody in December 2003--two days after his birth--because appellant and the minors mother had engaged in a verbal altercation at the hospital. The Alameda County Social Services Department (the Department) was concerned for the minors well-being because the mother had a recent history of psychiatric hospitalization and the family had not followed through with previously offered voluntary services to address domestic violence issues. Appellant had a 2003 misdemeanor conviction for inflicting injury upon the mothers older child (who subsequently moved to Japan to live with her father).

The minor was returned to his parents custody on January 8, 2004. The section 300 petition was sustained after an uncontested hearing and, on January 29, 2004, the minor was adjudged a dependent of the court. The juvenile court ordered the minor to remain placed with the parents, ordered family maintenance services and scheduled a three-month review hearing to determine whether dependency should be dismissed.

The Departments interim review report for the April 28, 2004, hearing recommended that dependency be dismissed. The Department reported that the parents had complied with the maintenance plan, appellant was the primary caretaker, and there were no current safety concerns. Although both parents had attended 11 counseling sessions and the mother had attended an appointment for psychiatric services, they had not signed the necessary forms to authorize the release of information about their counseling sessions. Accordingly, the hearing was continued to permit the parents to sign the appropriate forms.

Appellant did not sign the release forms. Thus, in its report for the May 26, 2004, hearing, the Department retracted its recommendation that dependency be dismissed. The Department recommended appellant participate in anger management classes and recommended the parents participate in additional couples therapy. The hearing was continued to get a different Japanese interpreter and to receive a report on the parents couples therapy.

The parents counselor reported that the parents did not think they needed counseling, that appellant thought the Department was being unfairly accusatory, and that appellant was controlling and hostile. The juvenile court found that counseling had been unproductive and ordered additional services (including psychological evaluations, separate counseling for the mother, further couples counseling, and anger management for appellant).

On June 10, 2004, appellant reported that he and his wife had moved to Sacramento, but they had not yet provided the Department with their new address by the time the social worker prepared the progress report for the July 12, 2004, hearing. The report noted there was no indication of any case plan compliance for the previous month.

A contested six-month review hearing was held on August 25, 2004. The social worker reported that the minor was doing well in the home, although there was some concern regarding bonding. Because of the parents recent behavior, along with the contents of the counselors report, the social worker did not recommend dismissal of the dependency. The social worker explained: I see a lot of risks. I am concerned about the parents ability to care for the minor and to -- concerned about the minors safety, given that the parents have not addressed their communication problems and their domestic violence history and Im concerned about the minor being affected by that. Appellant testified that he had cooperated with the therapist, and had attended anger management classes and completed parenting classes as part of his probation. The court found the parents had not complied with the case plan because they had not benefited from counseling and had not obtained psychological evaluations. The court also considered detaining the minor, in part because the parents had moved to Sacramento to remove themselves from the jurisdiction of the Department and the juvenile court in Alameda County. After finding the conditions leading to jurisdiction continued to exist, the court transferred the case to Sacramento County.

At the September 30, 2004, initial transfer-in hearing, the Sacramento County juvenile court appointed counsel for both appellant and the mother. Attorney Joedy DeFrank was appointed to represent appellant after the law office of Dale Wilson refused appointment.

The Sacramento County Department of Health and Human Services (DHHS) prepared a transfer-in disposition report on November 4, 2004. DHHS stated that the parents had not made themselves available during the previous two months. The parents were either moving around or splitting their time among several locations, making it impossible to verify an address within the county. DHHSs assessment was that the minor was at high risk of neglect or abuse, and the social worker recommended the case be transferred back to Alameda County.

On November 22, 2004, appellant complained to the court that he did not feel his attorney was acting in his best interests, and his attorney had been giving opinions that differed from those of the other attorney. Appellant told the court, I feel I can do a better job representing myself, even though I dont want to and I would prefer to have an appointed attorney, one that can work in my favor. In response, the juvenile court relieved appointed counsel and informed appellant that since Dale Wilsons office had declined representation at [each of t]he first four levels, it did not have another attorney to appoint. Therefore, appellant would have to temporarily represent himself and the court would attempt to locate another attorney. The court then set a pretrial conference and a contested hearing, telling appellant, when you return for the pretrial, let me know whether or not after you have had a chance to review the material whether you want a lawyer.

Appellant was not present at the December 16, 2004, pretrial conference, although he was apparently near the courthouse taking care of the minor. On the courts own motion, the minor was ordered surrendered to DHHS by 5:00 p.m. that evening because the court was concerned the parents were likely to flee the jurisdiction while the case was pending.

On December 20, 2004, DHHS filed a section 387 petition stating that the minor had been removed from the parents home because the parents were not cooperating. Appellant was not present at the detention hearing that was held the following day. The minor was ordered detained based on findings, among others, that there existed a substantial danger to the physical health of the child and the parents were likely to flee the jurisdiction.

The next day, appellant requested a rehearing on the ground that he had not been provided notice of the detention hearing. He also complained that he had not attended the pretrial conference because he was forced by sheriffs deputies to leave the courthouse. The court denied his request for a rehearing because appellants concerns were not directed at a particular order or finding of the referee as required for rehearing under section 252.

The section 387 jurisdiction and disposition report reiterated that the parents had been uncooperative. The minors mother was in Japan indefinitely, and the social worker had been unable to verify appellants address. The social worker reported that appellant was refusing to talk to her except in court because he is now representing himself. Nevertheless, the social worker told appellant that he might have a good chance of regaining custody if he complied with the case plan.

On January 27, 2005, appellant asked the court to appoint an appellate attorney. The juvenile court informed appellant that any appellate attorney would have to be appointed by the Court of Appeal and then asked appellant, Do you want an attorney to help you with the underlying trial? Do you want a lawyer in this case in the superior court? Appellant responded, No. No, Ill file the notice of appeal as soon as possible.

Appellant represented himself at the March 2005 trial. Shortly before trial, the section 387 petition was amended to allege that appellant had unresolved mental issues that placed the minor at risk. The court sustained the allegation, finding appellant had mental health issues that had not been addressed in therapy, and therefore, the minor was at risk in that appellant was controlling, hostile, evasive, and paranoid. The court found no evidence appellant had done anything individually to harm the minor. Nevertheless, appellant had been uncooperative. The court ordered the minor placed with appellant under DHHSs supervision and ordered appellant to undergo psychiatric and psychological evaluations and to participate in counseling. Appellant appealed in case No. C049864 from this order.

On April 17, 2005, appellant notified the court in a letter that he would be unable to attend court from April 18 to April 25, 2005, due to scheduled surgery. He also wrote that he demand[s] that a lawyer be appointed on my behalf. This lawyer must be an appeals lawyer, as I am appealing the previous order whereby the child is still remaining under jurisdiction.

On April 19, 2005, a month after the courts section 387 orders, DHHS filed another section 387 petition. The petition alleged appellant had failed family maintenance services because he did not make himself and the child available. DHHS further alleged that it believed appellant had moved back to Alameda County.

On April 22, 2005, the juvenile court appointed appellant an attorney to represent him in juvenile court and referred appellant to the Court of Appeal regarding appellate counsel. However, a few days later, appellant sent a request for a continuance for medical reasons and, in that request, also wrote: I do not need a lawyer for this new petition, only for the appeal from the previous petition. In response, the juvenile court granted the continuance and dismissed appellants counsel. The following day, on April 26, 2005, the juvenile court detained the minor.

Appellant was not present at the May 17, 2005, section 387 hearing. The juvenile court sustained the allegations in the petition and continued reunification services. Appellant was also absent at the August 29, 2005, permanency hearing. The juvenile court terminated reunification services and set a section 366.26 permanency planning hearing. The juvenile court sent appellant an advisement of the requirement to file a petition for extraordinary writ to preserve the right to appellate review of that order. (See 366.26, subd. (â„“)(3)(A); Cal. Rules of Court, rule 5.600(b).) The advisement, however, was not sent to appellants current address as indicated on his last juvenile court filing, as appellant had not filed a change of address form with the court. After appellant wrote to the court to ask why he had not been notified of the hearing, the court changed its records accordingly and sent a copy of the minute orders for hearings held after May 14, 2005, to appellant at his new address.

Appellant was personally served with notice of the section 366.26 hearing. The hearing was held on December 12, 2005. Appellant was not present at the hearing and the juvenile court terminated his parental rights.

On December 22, 2005, appellant filed an application for rehearing of the termination orders, claiming he had been unable to attend the hearing due to emergency root canal surgery. On January 9, 2006, the presiding judge found the application for rehearing did not comply with the local rules, in that it did not contain a sufficient statement of reasons or include a proper proof of service, and deemed the application not filed. Appellant appealed in case No. C051569 from this order and from the order terminating his parental rights.

Discussion

I

Appellant contends the juvenile court erred when it dismissed his attorney on November 22, 2004, without appointing a replacement. Appellant proceeded through the March 2005 section 387 hearing without counsel. DHHS argues appellant had no constitutional right to counsel and forfeited any statutory right to counsel he may have had. DHHS further argues that any failure by the court to appoint counsel was harmless error. We conclude the juvenile court erred in failing to appoint appellant new counsel and that the error cannot be deemed harmless.

Regardless of whether appellant had a constitutional right to counsel, he had a statutory right to counsel under section 317. Section 317 provides, in pertinent part: (a)(1) When it appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section. [] . . . []  (b) 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. [] . . . []  (d) The counsel appointed by the court shall represent the parent, guardian, or child at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent, guardian, or child unless relieved by the court upon the substitution of other counsel or for cause. . . .

Relying on In re Ebony W. (1996) 47 Cal.App.4th 1643, DHHS argues appellant did not manifest a request for counsel and, therefore, was not entitled to counsel under section 317.

In In reEbony W., this court stated that section 317 requires the indigent parent to communicate in some fashion his or her desire for representation before the juvenile court is obligated to appoint counsel[.] (InreEbony W., supra, 47 Cal.App.4th at p. 1647.) However, this matter is factually distinguishable from Ebony W. In that case, notice to the mothers last known address included a statement that, if she could not afford counsel but desired representation, she was required to notify the clerk of the juvenile court. (Id. at p. 1645.) The mother never appeared in court and never requested counsel. (Id. at p. 1648.) Under those circumstances, the court was not obligated to appoint counsel for the mother. (Ibid.)

Here, appellant was participating in the proceedings. He had counsel but was requesting substitute counsel. He told the court, I feel I can do a better job representing myself, even though I dont want to, and I would prefer to have an appointed attorney, one that can work in my favor. (Italics added.) He clearly indicated that he did want representation. Furthermore, the court appeared to understand appellant was requesting counsel because it replied that appellant would have to represent himself in the interim and the court would attempt to locate another attorney.

We disagree with DHHSs characterization of the January 27, 2005, colloquy between appellant and the court as an affirmative manifestation on the part of appellant that he did not want counsel. On that date, appellant asked the court to appoint him an appellate attorney. The juvenile court informed appellant that the appellate court would have to appoint appellate counsel and then asked him if he wanted a trial attorney. Appellant responded, No. No, Ill file the notice of appeal as soon as possible. In context, appellants response was simply not sufficient to constitute a waiver or forfeiture of appointed counsel to represent him at trial and throughout the remaining dependency proceedings. It can reasonably be construed only as appellants decision that he would file the notice of appeal himself, and presumably request the appellate court to appoint counsel for his appeal.

We also reject DHHSs argument that appellant was not entitled to counsel because he had not established he was indigent. At the transfer-in hearing held two months before the court relieved Joedy DeFrank as appellants counsel, the Sacramento County juvenile court determined that court-appointed counsel for appellant was appropriate. There is nothing in the record to suggest appellants financial status substantially changed in those two months.

Finally, we disagree with DHHS that the failure to appoint counsel for appellant after his previous attorney was relieved was harmless error. The violation of a parents statutory right to counsel in dependency proceedings is reviewed under the standard of whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (In re Ronald R. (1995) 37 Cal.App.4th 1186, 1195, quoting People v. Watson (1956) 46 Cal.2d 818, 836.)

Three weeks after appellants counsel was relieved, the court held a pretrial conference in appellants absence, even though the minors mother informed the court that appellant was caring for the minor in the vicinity of the courthouse. Counsel for DHHS represented that appellant had apparently indicated to [the social worker] that he did not want to talk to her outside of the court and did not appear to be receptive to her attempts to make contact with him. On its own motion, the court ordered the minor detained because appellant had failed to cooperate with the social worker in making the minor available, because neither parent had been available to DHHS and because the court was concerned the parents might flee the jurisdiction.

The section 387 petition also stated that the minor was removed because the parents were not cooperating. Appellant was not present at the detention hearing and the minor was detained with little discussion. When appellant requested a rehearing on the grounds that he had been prevented from attending the pretrial conference and had not received notice of the detention hearing, his request was denied on procedural grounds. Had appellant been represented by counsel, he would have been represented (and likely present) at both the pretrial conference and the detention hearing, where he could have assured the court that he would cooperate with DHHS. Counsel could have impressed upon appellant the importance of cooperating with DHHS. Indeed, it appears from the record that a major factor in appellants refusal to cooperate with DHHS was the fact that he represented himself. The social worker again noted in the section 387 jurisdiction/disposition report that appellant was continuing to refuse to talk to her except in court because he is now representing himself.

Although appellant succeeded in having the minor returned to his custody under DHHS supervision after representing himself at the section 387 trial, dependency jurisdiction was continued because of appellants lack of cooperation and because the court found appellant controlling, hostile, evasive, and paranoid. Had appellant been represented by counsel, he might not have been as hostile, evasive, and paranoid and might have been counseled to cooperate with DHHS. Indeed, had appellant been represented by counsel, the section 387 petition might never have been filed. Thus, we cannot conclude that the failure to appoint appellant new counsel was harmless.

In sum, we hold that the juvenile court erred in dismissing appellants counsel on November 22, 2004, without appointing a replacement. We further hold it is reasonably probable the error prejudiced appellant and infected the remaining proceedings. Accordingly, the orders of the juvenile court made at the section 387 hearing, as well as the subsequent orders of the juvenile court terminating parental rights, must be vacated.

II

Appellant also contends that the juvenile court erred on April 25, 2005, when it dismissed court-appointed counsel based solely on appellants statement in his letter requesting a continuance that: I do not need a lawyer for this new petition, only for the appeal from the previous petition. He argues that by failing to obtain a knowing and intelligent waiver of counsel, the juvenile court violated his statutory right to counsel and he was prejudiced at the subsequent proceedings, including the section 366.26 hearing and his application for rehearing of the termination orders.^[2]

Because we have concluded it was reasonably probable the juvenile courts erroneous dismissal of appellants counsel on November 22, 2004, without appointing a replacement, infected the subsequent proceedings and vacate the orders terminating parental rights for that reason, we need not reach the issue of whether the later dismissal of counsel also prejudiced appellant. We note, however, that the juvenile courts April 25, 2005, dismissal of appellants court-appointed counsel was, indeed, a second violation of appellants statutory right to counsel.

Section 317 has been construed to permit relieving counsel from appointment once the parents no longer desire counsel. (Janet O. v. Superior Court (1996) 42 Cal.App.4th 1058, 1064.) To construe the sections language as prohibiting the court from relieving counsel where, as here, the evidence indicates the parents no longer desire representation, would scuttle the purpose of the statute which is to provide counsel only to those parents who desire representation and are financially unable to afford counsel. (Ibid.) (In re Angel W. (2001) 93 Cal.App.4th 1074, 1084.) However, [w]hen the child has been removed from the home and appointment of counsel is mandatory for an indigent parent absent a knowing and intelligent waiver, more is required than simply accepting that the parent no longer desires counsel and ascertaining the parent is not using the request to proceed pro se to intentionally obstruct the proceedings. (Ibid.)

Certainly, to comply with section 317, subdivision (b), the court must take a waiver of the right to counsel. There is no requirement, however, that the court engage in a full Faretta-type admonition and inquiry,^[3]although similar admonitions have occurred in civil cases. (See Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 637.) (In re Angel W., supra, 93 Cal.App.4th at p. 1084.) In the criminal context, our Supreme Court has held: The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. (People v. Bloom (1989) 48 Cal.3d 1194, 1225.)

We need not determine whether the standard in criminal cases for waiver of the right to be represented by counsel or a less demanding standard should be applied here, because it is clear that, under any standard, the juvenile court in this case did not take an effective waiver of the right to counsel. Appellant had previously been forced to proceed without counsel in an earlier proceeding in which he was not entirely successful and had taken an appeal. Appellant wrote to the juvenile court, explaining he was currently unable to attend court due to scheduled surgery but was demanding a lawyer be appointed on his behalf. Not appearing to understand the roles of the trial and appellate courts and counsel, appellant explained to the court that his lawyer must be an appeals lawyer, as he was appealing from the previous order.

Two days later, a new section 387 petition was filed and the court appointed counsel. The courts letter to appellant explained that the juvenile court only had the power to appoint a trial court lawyer and that he must request appellate counsel from the Court of Appeal. Immediately thereafter, appellant sent a letter to the court requesting a continuance and stating, simply: I do not need a lawyer for this new petition, only for the appeal from the previous petition. Based on this letter and in appellants absence, the juvenile court granted the continuance and dismissed court-appointed counsel. The following day, the court detained the minor, again triggering the requirement that appellant be appointed counsel unless the court finds a knowing and intelligent waiver. Appellant, however, remained without representation and no advisement was given or waiver obtained. Indeed, there was no discussion whatsoever with appellant regarding the consequences of proceeding without counsel or even whether appellant understood the distinction between the scope of trial versus appellate representation.

In light of the absence of anything in the record that suggests that the appellant was advised of and understood the consequences of proceeding without representation, the courts dismissal of court-appointed counsel in appellants absence, based solely on appellants statement that he did not need a lawyer for this new petition, only for the appeal from the previous petition, was error.

Disposition

The March 17, 2005, orders of the juvenile court made at the section 387 hearing and the December 12, 2005, orders of the juvenile court made at the section 366.26 hearing are vacated. The matter is remanded with directions to the juvenile court to conduct a new section 387 hearing, considering the circumstances as they exist at the time of the new section 387 hearing, after providing appellant with proper notice and appointing counsel to represent him.

DAVIS , J.

I concur:

SCOTLAND, P.J.

I concur in the result:

RAYE , J.

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^[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.

^[2] Appellant also argues the juvenile court erred in deeming his application for rehearing of the termination orders not filed. We need not reach this contention since the termination of parental rights orders are vacated on other grounds.

^[3]Faretta v. California(1975) 422 U.S. 806 [45 L.Ed.2d 562].