In re Z.Z. CA1/3 ( 2021 )

Filed 6/28/21 In re Z.Z. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re Z.Z. et al., Persons Coming
Under the Juvenile Court Law.
SOLANO COUNTY DEPARTMENT
OF HEALTH AND SOCIAL
SERVICES, A161162
Plaintiff and Respondent,
v. (Solano County
L.P., Super. Ct. Nos. J44948, J44949)
Defendant and Appellant.
L.P., mother of minors Z.Z. and S.P., appeals from the juvenile court’s
jurisdiction and disposition orders finding jurisdiction over the minors and
placing them with their maternal grandmother, and ordering visitation and
reunification services. L.P. contends the juvenile court violated her due
process rights when it failed to advise her of her hearing rights and failed to
obtain a knowing and intelligent waiver of those rights as required by
California Rules of Court, rule 5.682.1 We find the juvenile court violated
1 All rule references are to the California Rules of Court.
1
rule 5.682. However, because we find the error harmless beyond a
reasonable doubt, we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
I. Petition and Detention Report
On May 7, 2020, the Solano County Department of Health and Social
Services, Child Welfare Division (Department), filed a dependency petition
alleging that L.P.’s two daughters, Z.Z. (age 13) and S.P. (age 5), came within
the jurisdiction of the juvenile court under Welfare and Institutions Code
section 300.2 Regarding L.P.,3 the petition alleged that she had a history of
mental health issues which periodically rendered her incapable of providing
adequate care, supervision, and support for Z.Z. and S.P. It further alleged
that on May 4, 2020, S.P. witnessed L.P. threaten to kill herself as she put a
knife to her own throat. S.P. allegedly grabbed the knife from her mother
and threw it to the ground. Both Z.Z. and S.P. allegedly expressed fear of
being left in L.P.’s care.
The detention report stated the Department had been informed by the
reporting party that L.P. was about to be released from the crisis unit at the
NorthBay Healthcare hospital where she had been admitted “due to ongoing
suicidal and homicidal ideations in the presence of . . . [S.P.].” The reporting
party informed the Department that L.P. has had mental health challenges
for the past two to three years and that L.P. stated, “[W]e are gone [sic] die
together,” in reference to herself and S.P.
2 All statutory references are to the Welfare and Institutions Code.
3 The petition also included allegations regarding Z.Z.’s father, whose
whereabouts were unknown, and S.P.’s father, who was incarcerated. We do
not address the allegations regarding the fathers because neither of them has
challenged the orders and the facts regarding the fathers are not relevant to
the issues raised by L.P.
2
A Department social worker interviewed the minors’ maternal
grandmother, C.R., on May 4, 2020. C.R. reported that on April 30, 2020,
L.P. told C.R. that she was having suicidal thoughts and that if she killed
herself and S.P. they would both go to heaven. C.R. contacted the police, who
responded but determined that L.P. did not meet the requirements for an
involuntary hold under section 5150.4 C.R. reported that four days later, on
May 4, 2020 (the day of her interview with the Department), L.P. dropped
S.P. off at C.R.’s home and then left. S.P. told C.R. that she and her mother
had been in a car accident that morning and that after the accident, L.P. held
a knife to her throat and threatened to kill herself and S.P. pulled the knife
away from her mother. About two hours after dropping S.P. off at C.R.’s
home, L.P. called C.R. and said she was having suicidal thoughts and was
planning to check herself into a NorthBay hospital. C.R. also reported to the
Department that Z.Z. had been living with her for about three years, with
L.P.’s consent.
The Department social worker interviewed S.P., who confirmed that
she and her mother had been in a car accident that morning. S.P. reported
her left ear hit the car seat and that it hurt at the time but not by the time of
the interview. S.P. also said that when she and her mother got home, her
mother put a knife against her throat and S.P. “ ‘snatched’ the knife
away . . . .” L.P. told S.P. that she wanted to die. S.P. told her mother that
she wanted to go to C.R.’s home, and L.P. responded that she would drive into
a lake with S.P. L.P. then told S.P. that she could walk alone to C.R.’s home.
When S.P. expressed fear of being kidnapped, L.P. said she did not care. S.P.
4 Under section 5150, a designated facility may detain a person for up
to 72 hours for evaluation and treatment if there is “probable cause to believe
that the person is, as a result of a mental health disorder, a danger to others,
or to himself or herself, or gravely disabled.”
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walked to C.R.’s house, and L.P. followed her, “call[ing] her names such as
‘bitch’ and ‘whore.’ ” S.P. denied that her mother physically disciplined her,
but she reported that her mother hit and pushed Z.Z. and called her names.
S.P. told the social worker that she did not feel safe at her mother’s home and
that “she is afraid her mother will kill herself and then she ‘will be alone.’ ”
Z.Z. reported to the social worker that she had been living with C.R. for
about three years and visits L.P. every other week. Z.Z. reported several
recent incidents of physical abuse, which included L.P.’s pushing Z.Z. into a
bathtub as punishment for not cleaning it properly, punching Z.Z., throwing
her on a bed, and throwing coffee on her. Z.Z. also reported her mother called
her “a ‘fucking bitch’ . . . .”
The social worker spoke with L.P. by telephone on May 6, 2020. L.P.
admitted having suicidal thoughts and being hospitalized but denied the
other statements made by her mother and her daughters, including that S.P.
was present when she tried to commit suicide. She said that claim “was
‘hilarious.’ ”
The Department recommended that the children be detained and that
the juvenile court consider placement with their maternal grandmother, C.R.
II. Detention Hearing
L.P. did not attend the May 8, 2020 detention hearing. She was
appointed counsel, who reported that L.P. was in a psychiatric hospital in
Santa Rosa. The juvenile court followed the Department’s recommendation
and issued orders detaining the minors and placing them in the care of C.R.
The detention orders stated that counsel had been appointed to advise the
parties of their rights.5
The detention orders included a “Solano County Specific Findings and
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Orders Attachment,” which stated under the “Advisements” heading: “The
4
III. Jurisdiction/Disposition Report
On June 18, 2020, the Department filed a combined
jurisdiction/disposition report recommending the continued detention of the
minors; that the juvenile court sustain the section 300, subdivision (b)(1)
allegations regarding L.P. and adjudge the minors dependents of the court;
and that family reunification services be offered to L.P. Evidence supporting
the allegations included C.R.’s report that L.P.’s mental health had been “ ‘up
and down’ ” for three years and that L.P. had recently been hearing voices
and having suicidal thoughts; S.P.’s statements that her mother held a knife
court has appointed counsel to inform and advise the parties that have
appeared in this matter of the following: The right of the child and each
parent, legal guardian, and Indian custodian to be present and to be
represented by counsel at every stage of the proceedings and, if any of these
parties are financially unable to retain counsel, any right to appointed
counsel that exists, subject to the court’s right to seek reimbursement. The
right to be informed by the court of the contents of the petition; the nature of
and possible consequences of juvenile court proceedings; the reasons for the
initial detention and the purpose and scope of the detention hearing if the
child is detained; the right to have a child who is detained immediately
returned to the home of the parent, legal guardian, or Indian custodian if the
petition is not sustained; that if the petition is sustained and the child is
removed from the care of the parent, legal guardian, or Indian custodian, the
time for services will commence on the date disposition; that the time for
services will not exceed 12 months for a child aged three years or over at the
time of the initial removal; and that the time for services will not exceed 6
months for a child under the age of three years or for the member of a sibling
group that includes a child under the age of three years if the parent, legal
guardian, or Indian custodian fails to participate regularly and make
substantive progress in any court-ordered treatment program, The right to a
hearing by the court of the issues presented by the petition. The right to
assert the privilege against self-incrimination; to confront and cross-examine
the persons who prepared reports or documents submitted to the court by the
petitioner and the witnesses called to testify against the parent, legal
guardian; or Indian custodian; to subpoena witnesses; and to present
evidence on one’s own behalf.” (Sic.)
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to her throat and said she wanted to die and that S.P. does not feel safe at
her mother’s home; and Z.Z.’s reports of incidents of physical abuse during
her visits with her mother. The social worker reported that during a video
conference on June 9, 2020, neither minor wished to speak with her about the
allegations. However, on June 12, 2020, the social worker spoke with Z.Z.,
who reported she wanted to continue living with C.R.
The report summarized a discussion with L.P. regarding the
allegations. L.P. initially said “she was ‘not sure what happened that day’ ”
but denied placing a knife to her throat or that S.P. had to remove the knife
from her. She acknowledged that she began to hear voices and said she
contacted the police, but they told her she did not meet the criteria for a 5150
hold. She then decided to leave her children with C.R. and drove herself to
the hospital where she was placed on a 5150 hold. L.P. denied ever harming
her children. When asked why she thought her children’s accounts differed
from hers, L.P. responded, “ ‘I have noticed that when my children are coming
from my mom’s house there are lies.’ ” L.P. further stated that someone in
Solano County “ ‘has it out’ for her . . . .” She acknowledged that she
struggles with mental health but that this was the first time she heard voices
or felt it necessary to seek crisis intervention. L.P. reported that she was
diagnosed with bipolar disorder and had completed a two-week mental health
program at a hospital in Santa Clara. She said she was following her
discharge plan, which included medication and attending support groups.
The report summarized 21 prior child welfare referrals from June 2009
to April 2020 in Solano, San Joaquin, and Sacramento Counties, 20 of which
were evaluated out, inconclusive, or unfounded. One 2015 referral in San
Joaquin County for general neglect of Z.Z. was substantiated.
6
L.P. was asked to participate in a random drug test on June 10, 2020,
but she did not appear. Nor did she respond to the social worker’s follow-up
messages. L.P.’s video conference visits with the children were going well
with no concerns.6
IV. Restraining Order
During July 2020 the Department social worker visited C.R.’s home,
and C.R. reported concerns that L.P. had been calling other family members
and stating that C.R. and the children “were ‘dead.’ ” C.R. also reported that
L.P. called her up to 60 times a day saying, “ ‘[Y]ou took my kids; I will take
your life.’ ” On July 27, 2020, C.R. e-mailed the social worker recordings of
the phone conversations.
On July 30, 2020, L.P. contacted the Fairfield police to complain that
C.R. would not release L.P.’s children to her. The police spoke with C.R., who
told them that the Department had placed the children with her.
The next day, L.P. went to C.R.’s home, demanding that the children be
given to her. The police responded, and C.R. provided documentation
confirming that the children had been placed in her care. L.P. said the
documents were “ ‘fake,’ ” and she refused to leave the premises. After
resisting and struggling with the police, L.P. was arrested for trespass and
resisting arrest. One of the police officers at the scene reported that he
observed symptoms of intoxication, including “rapid speech, paranoia,
incoherent statements and irritability.” The officer believed L.P. was “under
the influence of a ‘central nervous system stimulant.’ ”
On August 4, 2020, the Department filed a request for a restraining
order to protect C.R. and the children from L.P. That day, L.P., who was in
custody due to her arrest on July 31, appeared in juvenile court with her
6 Due to Covid-19, in-person visitation was suspended.
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counsel. She requested a contested jurisdiction/disposition hearing. The
juvenile court issued a temporary restraining order pending the August 25,
2020 jurisdiction/disposition hearing.
V. Addendum Report
On August 24, 2020, the Department filed an addendum report,
attaching the police report and updating the juvenile court on the events
leading up to L.P.’s arrest and the request for a restraining order. The
addendum report also stated the following regarding contacts with L.P.: On
August 6, 2020, the social worker met with L.P. in advance of her first in-
person visit with the children. L.P. told the social worker she would only
need 10 minutes, to tell the children “ ‘she was signing over her parental
rights.’ ” The social worker told L.P. she was not to discuss the case with the
children during the visit. L.P. was provided a copy of a case plan and court
reports, and she stated they were all “ ‘fake.’ ” She refused to sign the case
plan and commented, “ ‘[T]here is evil all around.’ ” The visit with the
children was cut short because L.P. did not abide by the instruction not to
discuss the case with them.
On August 11, L.P. called the social worker and asked what she had to
do to have the children in her care. The social worker noted that L.P.’s
demeanor was “drastically different” than in their last conversation. L.P.
asked for a copy of the case plan and said she wanted to discuss reunification.
L.P. agreed to submit to a drug test, and on August 17 she tested positive for
marijuana.
The social worker recommended that the restraining order remain in
place because of L.P.’s unpredictable behaviors, threats to C.R., and concerns
of further traumatization of the children. The addendum report concluded
that L.P. continued to struggle with her mental health and that she appeared
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to suffer episodes of severe mood swings common with bipolar disorder, which
L.P. self-reported as her diagnosis. The social worker reported that she had
been unable to verify whether L.P. was receiving treatment in accordance
with the recommendations of her mental health providers.
VI. Jurisdiction/Disposition Hearing
At the trial management conference on the morning of August 25, 2020,
L.P.’s counsel stated that L.P. was in court but he did not know where she
was when the case was called. He told the court that he had had several
conversations with L.P. and that she initially wanted to confirm the
contested hearing but after they talked and L.P. read the report, she now
wanted “to object and submit.” The matter was continued to the afternoon
session, at which time L.P. appeared with her counsel. L.P.’s counsel
informed the juvenile court that L.P. intended to object and submit and start
on her reunification services. He also stated that L.P. would object and
submit on the restraining order given that it allowed for supervised
visitation. L.P.’s counsel reported that L.P. was doing very well, that she
would respect the restraining order, and that he expected a positive result in
the matter. The juvenile court replied, “That’s really good news, because the
object here is to reunify family . . . , but some hard work sometimes has to go
into doing that.” Later in the hearing, the juvenile court confirmed, “[L.P.] is
objecting and submitting?” and her counsel responded, “Correct, Your Honor.”
The juvenile court received into evidence the Department’s reports
dated May 7, 2020, June 18, 2020, and August 24, 2020; sustained the
allegations of the petition, finding that the children fell within section 300,
subdivisions (b) and (g); and ordered reunification services for L.P. The
juvenile court also granted the restraining order and set it to expire on
July 6, 2021.
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The juvenile court did not advise L.P. of her rights on the record, and
L.P. did not submit Judicial Counsel Forms, form JV-190 (Waiver of Rights—
Juvenile Dependency).
DISCUSSION
I. The juvenile court’s failure to advise of hearing rights on the
record and obtain an explicit waiver of rights violated due
process.
L.P. contends the juvenile court violated her due process rights by
failing to advise her of her hearing rights and failing to obtain a knowing and
intelligent waiver of those rights before finding the allegations of the petition
true. The Department does not dispute that the juvenile court failed to give
L.P. the required advisements at the jurisdiction/disposition hearing and did
not obtain a personal waiver from her before ruling on the petition.
Nonetheless, the Department argues the orders should be affirmed because
the errors were harmless beyond a reasonable doubt.
We agree with the parties that the juvenile court abused its discretion
when it failed to properly advise L.P. of her rights at the
jurisdiction/disposition hearing before accepting her submission. “[E]ven if
the parent does not contest the allegations [of a section 300 petition], the
court must advise the parent of the parent’s rights to receive a hearing on the
issues raised by the petition, to assert any privilege against self-
incrimination, to confront and cross-examine witnesses, to compel witnesses’
attendance, and to have the child returned if the court finds that the child
does not come within the jurisdiction of the juvenile court under section 300.
(Rule 5.682(b).)[7] If, after being so advised, the parent wishes to admit the
7 The required advisements are set forth in rules 5.534(g)(1) and 5.682.
Rule 5.534(g)(1) states: “The court must advise the . . . parent . . . in section
300 cases . . . of the following rights:
“(A) The right to assert the privilege against self-incrimination;
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“(B) The right to confront and cross-examine the persons who prepared
reports or documents submitted to the court by the petitioner and the
witnesses called to testify at the hearing;
“(C) The right to use the process of the court to bring in witnesses; and
“(D) The right to present evidence to the court.”
Rule 5.682 provides the advisements required to be given by the
juvenile court at the jurisdiction hearing. It states in relevant part:
“(a) . . . [¶] After giving the advisement required by rule 5.534, the
court must advise the parent . . . of the following rights:
“(1) The right to a hearing by the court on the issues raised by the
petition . . . . [¶] . . . [¶]
“(b) The court must then inquire whether the parent . . . intends to
admit or deny the allegations of the petition. If the parent . . . neither admits
nor denies the allegations, the court must state on the record that the parent
. . . does not admit the allegations. If the parent . . . wishes to admit the
allegations, the court must first find and state on the record that it is
satisfied that the parent . . . understands the nature of the allegations and
the direct consequences of the admission, and understands and waives the
rights in (a) and (e)(3).
“(c) An admission by the parent . . . must be made personally by the
parent . . . .
“(d) The parent . . . may elect to admit the allegations of the petition or
plead no contest and waive further jurisdictional hearing. The parent . . .
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 . . . submits to the jurisdictional
determination in writing, Waiver of Rights—Juvenile Dependency (form JV-
190) must be completed by the parent . . . and counsel and submitted to the
court.
“(e) . . . [¶] After admission, plea of no contest, or submission, the court
must make the following findings noted in the order of the court: [¶] . . . [¶]
“(3) The parent . . . 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[’s] . . . behalf;
“(4) The parent . . . understands the nature of the conduct alleged in the
petition and the possible consequences of an admission, plea of no contest, or
submission;
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allegations or enter a plea of no contest (see rule 5.682(e)), the court must
find and state on the record that it is satisfied that the parent understands
the nature of the allegations and the direct consequences of the admission,
and understands and knowingly and intelligently waives the rights in rule
5.682(b). (Rule 5.682(c), (f).)” (In re S.N. (2016) 2 Cal.App.5th 665, 671.)
Here, although the May 15, 2020 detention orders advised L.P. of her
hearing rights, the juvenile court did not properly advise her of these rights
on the record at the jurisdiction/disposition hearing; nor did it find and state
on the record that L.P. knowingly and intelligently waived her hearing
rights. Rule 5.682 specifically requires that the juvenile court advise the
parent of his or her hearing rights and that the juvenile court’s order confirm
that the parent has knowingly and intelligently waived those rights. (Rule
5.682(a), (e).) Failure to comply with these requirements is error. (In re
Monique T. (1992) 2 Cal.App.4th 1372, 1377.)
II. Harmless Error
Although the due process rights protected by these rules implicate a
parent’s fundamental right to care for and have custody of his or her child, a
juvenile court’s failure to advise of hearing rights and confirm a parent has
knowingly and intelligently waived those rights is subject to a harmless error
analysis. (In re S.N., supra, 2 Cal.App.5th at p. 672; In re Monique T., supra,
2 Cal.App.4th at p. 1377.) L.P. relies on Judith P. v. Superior Court (2002)
102 Cal.App.4th 535 (Judith P.) and argues that the juvenile court’s errors
were structural and should be considered reversible per se. Judith P. is
inapposite.
“(5) The admission, plea of no contest, or submission by the parent . . .
is freely and voluntarily made; . . .”
12
In Judith P., in violation of the 10-day service requirement of section
366.21, the mother received the department’s status report recommending
termination of reunification services on the same day as the 12-month review
hearing, during which the juvenile court terminated reunification services.
(Judith P., supra, 102 Cal.App.4th at pp. 542–544.) The court found that the
untimely service of the report impaired the mother’s ability to be heard and
was a due process violation that rendered the proceedings fundamentally
unfair. (Id. at pp. 539–540, 553–558.) This was a structural error that
required automatic reversal of the order setting the case for a permanency
hearing. (Id. at pp. 556–558.) In contrast, here, L.P. does not raise the issue
of timely service of the petition or the Department’s reports. L.P. was
represented by counsel throughout the proceedings; she reviewed the
Department’s report with her counsel; and she spoke directly with the
Department on multiple occasions regarding the allegations of the petition.
Not only is Judith P. distinguishable from this case, but also, as L.P.
acknowledges, since Judith P., our Supreme Court has twice applied a
harmless error analysis in dependency cases. (See In re James F. (2008) 42
Cal.4th 901, 915–916 [finding juvenile court’s failure to follow proper
procedure for appointing a guardian ad litem for parent was harmless error
and stating “significant differences between criminal proceedings and
dependency proceedings provide reason to question whether the structural
error doctrine that has been established for certain errors in criminal
proceedings should be imported wholesale, or unthinkingly, into the quite
different context of dependency cases”]; In re Celine R. (2003) 31 Cal.4th 45,
58–59 [rejecting analogy to criminal cases and applying harmless error
analysis to improper joint representation of children in dependency case].)
13
In re Monique T., supra, held that the failure to advise of hearing rights
on the record and to obtain a personal waiver of rights is subject to harmless
error analysis. (2 Cal.App.4th at p. 1378.) In re Monique T. applied the
stricter Chapman standard and determined the error was harmless beyond a
reasonable doubt. (Ibid., citing Chapman v. California (1967) 386 U.S. 18.)
Because the facts of In re Monique T. supported a finding that the error was
harmless beyond a reasonable doubt, the court did not decide whether the
more easily met “reasonable probability” test (People v. Watson (1956) 46
Cal.2d 818) should apply to this type of error. (In re Monique T., at p. 1378.)
In re S.N., supra, addressed the same type of error and held that the
Chapman test applied. (2 Cal.App.5th at p. 672.) It found the juvenile
court’s failure to properly advise the mother of her rights at the jurisdictional
hearing before accepting her submission was harmless beyond a reasonable
doubt based on the overwhelming evidence supporting a finding of
jurisdiction. (Ibid.)
We need not decide whether the Watson or Chapman standard of
prejudice is the correct test because we find no prejudice even under the
stricter Chapman standard. We conclude that the juvenile court’s error in
failing to advise L.P. of her rights and failing to obtain a knowing and
intelligent waiver from her personally was harmless beyond a reasonable
doubt. L.P. was represented by counsel throughout the proceeding. The
May 15, 2020 detention orders appointing counsel state that counsel was to
provide the advisements to the parties. At the August 4, 2020 hearing, which
L.P. attended, her counsel stated he had discussed the proceedings with his
client and that she wanted to set the matter for a contested hearing. At the
jurisdiction/disposition hearing on August 25, 2020, L.P.’s counsel informed
the juvenile court that L.P. initially wanted to proceed with a contested
14
hearing but after she talked with counsel and read the report, she now
wanted to object and submit and proceed with reunification services.
Although the juvenile court erred in not advising L.P. of her rights on the
record and not obtaining a personal waiver from her, the record indicates
that L.P. was informed of the allegations and that her counsel explained her
options, including whether to contest jurisdiction or submit. L.P. does not
contend that her counsel was ineffective for failing to explain her rights to
her or that she was pressured to waive her rights. (See In re Monique T.,
supra, 2 Cal.App.4th at p. 1378.)
Moreover, we find that the evidence supporting jurisdiction was
overwhelming. It included the following: L.P.’s recent hospitalization for
mental health treatment after she complained of hearing voices and having
suicidal thoughts and was placed on a 5150 hold; L.P.’s statement that she
had been diagnosed with bipolar disorder and was undergoing treatment;
statements from five-year-old S.P. that L.P. threatened to kill herself in front
of S.P.; statements from both children that they were afraid to be alone with
L.P.; statements from Z.Z. and S.P. that L.P. had physically and verbally
abused Z.Z.; statements from C.R. regarding L.P.’s ongoing mental health
issues and repeated threatening phone calls from L.P. after the children were
placed in C.R.’s care; the police report regarding L.P.’s arrest after she
refused to leave C.R.’s home; and L.P.’s statement that the Department’s
petition and the detention order were “ ‘fake.’ ” The evidence overwhelmingly
supports the juvenile court’s jurisdiction and disposition findings, and we find
beyond a reasonable doubt that L.P. could not have successfully contested
jurisdiction had she opted to do so after being informed of her rights on the
record. The error was harmless beyond a reasonable doubt.
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DISPOSITION
The orders of the juvenile court are affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A161162/Solano County Dept. of Health & Social Services v. L.P.
17