In re L.P. CA6 ( 2014 )

Filed 5/28/14 In re L.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 L.P., a Person Coming H039748
Under the Juvenile Court Law. (Santa Clara County
Super. Ct. No. JD21830)
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN'S SERVICES,
Plaintiff and Respondent,
v.
D.N.,
Defendant and Appellant.
D.N. (mother) appeals from the dispositional orders of the juvenile court, which
adjudged her daughter L.P. a dependent child of the Santa Clara Superior Court, removed
her from parental physical custody, and placed her under the care, custody, and control of
Santa Clara County's Department of Family and Children's Services (Department) for
placement. (See Welf. & Inst. Code, §§ 300, 361, 361.2, 395, subd. (a).)1 The matter had
been previously transferred from Yuba County, where the jurisdictional hearing was held.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
Mother now argues that the Yuba County juvenile court violated due process and
committed reversible error by accepting her submission on the social worker's report
without first advising her of the procedural due process rights attendant to the jurisdiction
hearing and obtaining her personal waiver of those rights. She also maintains that the
Yuba County juvenile court abused its discretion by allowing minor to determine whether
or not visitation with mother took place. Mother asserts that alternatively, if we do not
reverse the dispositional orders, her "time to reunify with her daughter should be
extended to reflect an additional three months to make up" for the challenged visitation
order.
In its initial brief, the Department conceded that error had occurred at the
jurisdictional hearing and indicated that its concession rendered the visitation issue moot.
We asked for supplemental briefing.
We conclude that mother was not deprived of any procedural due process
protection and her submission at the jurisdictional hearing was voluntary, knowing, and
intelligent under the totality of circumstances. The issue whether the challenged
visitation order, issued by the Yuba County juvenile court prior to the jurisdiction
hearing, constituted error is now moot and we do not reach it. We find no basis to
reverse.
I
Procedural History
On March 21, 2013, a delinquency petition was filed on behalf of L.P., 15 years
old, under section 300, subdivision (b), in Yuba County. It alleged that mother had
engaged in physical violence against her daughter.
At the commencement of the detention hearing on March 22, 2013, the Yuba
County juvenile court appointed Carroll Peiffer to represent mother. The court ordered
that "[t]emporary physical placement, care and control of the child is vested with the
2
Yuba County Health and Human Services Department" and "[t]emporary legal custody
shall be with the Juvenile Court." It further ordered that visitation between the parents
and child would be "arranged through the social worker at the child's request."
At the continued detention hearing on March 27, 2013 in Yuba County, mother's
counsel stated there was no visitation order for mother. Minor's counsel indicated that
visitation with mother was arranged by the social worker at L.P.'s request. Mother's
counsel said, "That's fine, Judge."
The Jurisdiction Report indicated that Yuba County Child Protective Services had
received a report that L.P. was abused by mother on March 8, 2013. When the social
worker spoke with minor, minor showed pictures of her injuries and refused to return
home to her mother's care. Minor reported that, after returning home after "she 'ditched'
school," mother hit her in the face multiple times with an open and closed hand, pulled
her hair, scratched her arms and face, pushed her down, and kicked her in the back.
Photographs of reported injuries, including a swollen lip, swollen black eye, and
scratches on L.P.'s arms, were attached to the report.
The Jurisdiction Report stated that mother admitted that she argued with minor
about minor's truancy, she tried to slap minor and "ended up scratching [minor's] arm,"
and minor had no injuries prior to the incident. Mother denied causing the other reported
injuries. Mother reported that minor smoked marijuana and used crystal
methamphetamine. Mother indicated that "she had no control over [minor] and . . . she
did not want [minor] returned to her care under these conditions and without any services
in place to address her daughter's issues."
At the jurisdiction hearing on April 17, 2013 in Yuba County, the parents
submitted on the jurisdictional report. The Yuba County juvenile court sustained the
delinquency petition, finding that the allegations were true and L.P. came within its
jurisdiction under section 300, subdivision (b). Before dispersing, father's counsel asked
3
for the court to make a visitation order on behalf of father. The court ordered the social
worker to "arrange a visit as requested and can be accommodated with father." Mother's
counsel made no similar request.
After the jurisdiction hearing, this dependency case was transferred from Yuba
County to Santa Clara County, the parents' legal residence. At the transfer-in hearing on
May 13, 2013 in Santa Clara County, the juvenile court appointed counsel for mother.
The court accepted the transfer of jurisdiction from Yuba County to Santa Clara County.
As to visitation, the court followed the social worker's recommendations, ordering
supervised visitation of two hours once a month for each parent and giving the social
worker discretion to increase the frequency and duration of visits and to permit
unsupervised visits and overnight visits.
Following the disposition hearing on June 7, 2013, the juvenile court adjudged
minor a dependent child of the court, removed minor from parental physical custody,
ordered her into the Department's care, custody, and control for out-of-home placement,
and ordered reunification services. It ordered a minimum of one hour of supervised
visitation per week in a therapeutic setting for mother and a minimum of two hours of
supervised visitation per week for father. Mother filed a notice of appeal.
II
Discussion
A. Mother's Submission at the Jurisdictional Hearing
1. California Rules of Court
Rule 5.534(k)(1) of the California Rules of Court2 requires a court to advise a
parent in section 300 cases of the following hearing rights: "(A) Any right to assert the
privilege against self-incrimination; (B) The right to confront and cross-examine the
2
All further references to rules are to the California Rules of Court.
4
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(b) concerning commencement of the jurisdictional hearing provides:
"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; [¶] (2) The right to assert any privilege against self-incrimination; [¶] (3) The
right to confront and to cross-examine all witnesses called to testify; [¶] (4) The right to
use the process of the court to compel attendance of witnesses on behalf of the parent
. . . ; and [¶] (5) The right, if the child has been removed, to have the child returned to the
parent . . . within two working days after a finding by the court that the child does not
come within the jurisdiction of the juvenile court under section 300, unless the parent . . .
and the child welfare agency agree that the child will be released on a later date."
A parent "may elect to admit the allegations of the petition, plead no contest, or
submit the jurisdictional determination to the court based on the information provided to
the court and waive further jurisdictional hearing." (Rule 5.682(e).) "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 (b)." (Rule
5.682(c).) "An admission by the parent . . . must be made personally by the parent . . . ."
(Rule 5.682(d).)
The Judicial Council has adopted for mandatory use form JV-190 (Waiver of
Rights--Juvenile Dependency). (See Judicial Council Forms, form JV-190, rule 5.504.)
This form "may be completed by the parent . . . and counsel and submitted to the court."
(Rule 5.682(e).) The form provides for a parent's express waiver of rights, including
(1) the right to a trial or hearing; (2) the right to see and hear witnesses who testify;
5
(3) the right to cross-examine witnesses, the social worker who prepared a report, and
persons whose statements are contained in the report; (4) the right to testify in a parent's
own behalf and to present evidence and witnesses; and (5) any privilege against self-
incrimination in the proceeding, and for a parent's express acknowledgement of the
consequences of submitting the petition on the report. (See Judicial Council Forms, form
JV-190.)
"After admission, plea of no contest, or submission, the court must make" certain
specified findings and note them in its order. (Rule 5.682(f).) Those findings include the
following: "The parent or guardian 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 or guardian's behalf" (rule
5.682(f)(3)); "[t]he parent or guardian understands the nature of the conduct alleged in
the petition and the possible consequences of an admission, plea of no contest, or
submission" (rule 5.682(f)(4)); and "[t]he admission, plea of no contest, or submission by
the parent or guardian is freely and voluntarily made" (rule 5.682(f)(5)).
2. Boykin/Tahl Analogy
Citing criminal cases, mother argues that her submission of the dependency
petition for decision upon the social worker's report is the equivalent of a criminal
defendant's "slow plea" of guilty, and the failure of the court to advise her of her hearing
rights and obtain her waivers of those rights constituted reversible per se error. (See
People v. Wright (1987) 43 Cal. 3d 487, 493-495 (Wright); Bunnel v. Superior Court
(1975) 13 Cal. 3d 592, 602-603 (Bunnel); In re Tahl (1969) 1 Cal. 3d 122, 132 (Tahl);
Boykin v. Alabama (1969) 395 U.S. 238, 243 [89 S. Ct. 1709] (Boykin))
Boykin recognized that, when a criminal defendant pleads guilty in a state criminal
trial, the defendant waives a number of federal constitutional rights, including the
6
privilege against self-incrimination, the right to a jury trial, and the right to confront
accusers. (Boykin v. Alabama, supra, 395 U.S. at p. 243.) Boykin made clear that courts
could not "presume a waiver of these three important federal rights from a silent record."
(Ibid., fn. omitted.) "In the wake of Boykin, [the California Supreme Court] held in In re
Tahl (1969) 1 Cal. 3d 122 . . . , that 'each of the three rights mentioned—self-
incrimination, confrontation, and jury trial—must be specifically and expressly
enumerated for the benefit of and waived by the accused prior to acceptance of his guilty
plea.' (Id. at p. 132 . . . , italics added.)" (People v. Mosby (2004) 33 Cal. 4th 353, 359.)
The California Supreme Court extended the Boykin-Tahl requirements of explicit
advisement and waiver of constitutional rights to the submission of a case for decision
based on the preliminary hearing transcript regardless of whether the submission was
tantamount to a guilty plea, i.e. a "slow plea." (See People v. Levey (1973) 8 Cal. 3d 648,
650; In re Mosley (1970) 1 Cal. 3d 913, 926, fn. 10; see also People v. Wright (1987) 43
Cal. 3d 487, 491-494; Bunnell, supra, 13 Cal.3d at p. 605.) The Supreme Court
concluded that a trial court's failure to advise and obtain waivers of any of the three
fundamental constitutional rights from a criminal defendant who submits on the transcript
of the preliminary hearing is "per se reversible error if the submission is tantamount to a
guilty plea (People v. Levey, supra, 8 Cal.3d at p. 654 . . . ; In re Mosley, supra, 1 Cal.3d
at pp. 924-926 . . . ) . . . ." (People v. Wright (1987) 43 Cal. 3d 487, 493-494, see id. at p.
495.)
In People v. Howard (1992) 1 Cal. 4th 1132, a case involving a criminal
defendant's admission of a prior conviction for purposes of sentence enhancement, the
California Supreme Court recognized that "the overwhelming weight of authority no
longer supports the proposition that the federal Constitution requires reversal when the
trial court has failed to give explicit admonitions on each of the so-called Boykin rights."
(Id. at p. 1175.) The court explained: "In the 22 years since Tahl, our interpretation of
7
federal law in that opinion has not garnered significant support in the federal courts.
Indeed, the high court has never read Boykin as requiring explicit admonitions on each of
the three constitutional rights. Instead, the court has said that the standard for
determining the validity of a guilty plea 'was and remains whether the plea represents a
voluntary and intelligent choice among the alternative courses of action open to the
defendant.' (North Carolina v. Alford [(1970) 400 U.S. 25,] 31 . . . .) 'The new element
added in Boykin' was not a requirement of explicit admonitions and waivers but rather
'the requirement that the record must affirmatively disclose that a defendant who pleaded
guilty entered his plea understandingly and voluntarily.' (Brady v. United States [(1970)
397 U.S. 742,] 747-748, fn. 4 . . . .)" (Id. at p. 1177.)
The California Supreme Court stated in Howard: "In the exercise of our
supervisory powers, we shall continue to require that trial courts expressly advise
defendants on the record of their Boykin/Tahl rights. However, errors in the articulation
and waiver of those rights shall require the plea to be set aside only if the plea fails the
federal test." (Id. at p. 1175.) "Under that test, a plea is valid if the record affirmatively
shows that it is voluntary and intelligent under the totality of the circumstances. (See
North Carolina v. Alford (1971) 400 U.S. 25, 31 . . . ; Brady v. United States (1970) 397
U.S. 742, 747-748 . . . .)" (Ibid.)
The California Supreme Court observed in a subsequent case: "Although we have
not directly held the Howard totality-of-the-circumstances test would apply on direct
appeal from a guilty plea to a substantive offense, our subsequent cases seem to have
assumed it. [Citations.]" (People v. Allen (1999) 21 Cal. 4th 424, 439, fn. 4.) More
recently, the California Supreme Court has stated: "By adopting in Howard the federal
constitutional test of whether under the totality of circumstances the defendant's
admission is intelligent and voluntary, we rejected the rule that 'the absence of express
admonitions and waivers requires reversal regardless of prejudice.' (Howard, supra, 1
8
Cal.4th at p. 1178 . . . .) In replacing the old rule, the focus was shifted from whether the
defendant received express rights advisements, and expressly waived them, to whether
the defendant's admission was intelligent and voluntary because it was given with an
understanding of the rights waived." (People v. Mosby, supra, 33 Cal.4th at p. 361.)
As the parties indicate, a Boykin-Tahl or "slow plea" analogy had been raised in
dependency cases. In In re Monique T. (1992) 2 Cal. App. 4th 1372 (Monique T.), a case
decided before People v. Howard, supra, 1 Cal. 4th 1132, "the mother, through her
counsel, waived the reading of the petition, advice of rights and explanation of the
proceedings" at the detention hearing. (Monique T., supra, 2 Cal.App.4th at p. 1375.)
"[A]t the same hearing, the mother again, through counsel, submitted the matter for a
jurisdictional determination based only on the petition and the detention memorandum.
The court did not advise the mother of the rights she would be giving up upon the
submission." (Ibid.) On appeal, the mother relied on Tahl to argue that the juvenile
court's failure to advise her of the rights attendant to a jurisdictional hearing as set forth
in the California Rules of Court and to obtain personal waivers of those rights before she
submitted the matter "void[ed] any waiver of a contested jurisdictional hearing, and
require[d] the jurisdictional order to be set aside." (Id. at p. 1376.)
The reviewing court stated in Monique T., supra: "Among the essential
ingredients of due process are the right to a trial on the issues raised by the petition, the
right to confront and cross-examine witnesses, and to compel the attendance of witnesses.
(In re Malinda S. [(1990) 51 Cal. 3d 368], 383-384.) By adopting [former] rule 1449, the
Judicial Council recognized these rights are essential to a fair jurisdictional proceeding."
(Id. at p. 1377.) It concluded that the juvenile court had erred in accepting "a waiver of
these rights based only on counsel's representations" (ibid.) but it found the error
harmless under even under a Chapman standard of review (see Chapman v. California
(1967) 386 U.S. 18, 24 [87 S. Ct. 824] ["before a federal constitutional error can be held
9
harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt"]). (Monique T., supra, 2 Cal.App.4th at pp.1377-1378.) The appellate
court observed that, among other things, "[t]he mother was represented, at all stages of
the proceeding, by an attorney, who explained her rights to her and who indicated that
she desired to waive them." (Id. at p. 1378.)
In In re Tommy E. (1992) 7 Cal. App. 4th 1234, 1237 (Tommy E.), the parents
submitted the jurisdictional determination on the social services report. (Id. at pp. 1236-
1237.) On appeal, father challenged the juvenile court's jurisdictional and dispositional
findings on the insufficiency of the evidence. (Id. at p. 1236.) The Department equated
the submission to a plea of no contest and contended that "the father waived his right to
contest the jurisdictional findings on appeal, because he agreed to submit the
jurisdictional determination on the information provided to the court in the social services
report." (Id. at pp. 1236-1237.) The appellate court discussed "slow pleas" in the criminal
context but rejected the Department's arguments because a defendant may challenge a
conviction following a "slow plea" submission on the grounds of insufficient evidence.
(Id. at p. 1237.) In Tommy E., there was no issue concerning judicial admonitions and
parental waivers. Moreover, that case was decided only months after People v. Howard,
supra, 1 Cal. 4th 1132 was decided and before its full import was understood.
In In re Patricia T. (2001) 91 Cal. App. 4th 400 (Patricia T.), mother submitted a
signed and initialed waiver of rights form at the combined jurisdiction and disposition
hearing and, after a very brief colloquy with mother and her counsel at the hearing, the
juvenile court found that mother had knowingly and intelligently waived her rights and
seemed to understand the consequences of doing so. (Id. at p. 405.) On appeal, mother
contended that "she did not understand that her waiver of a contested dispositional
hearing would result in the denial of reunification services." (Id. at p. 402.)
10
Citing Monique T., supra, 2 Cal. App. 4th 1372, the appellate court in Patricia T.
stated that "because [former] rule 1449 requires warnings analogous to those required
under Boykin v. Alabama (1969) 395 U.S. 238 [89 S. Ct. 1709, 23 L. Ed. 2d 274] and In re
Tahl (1969) 1 Cal. 3d 122, when a defendant enters a guilty plea in criminal proceedings,
we seek guidance from the standard of review applicable to Boykin/Tahl admonitions.
[Citation.]" (Id. at p. 404.) It recognized that " 'a [criminal defendant's guilty] plea is
valid if the record affirmatively shows that it is voluntary and intelligent under the totality
of the circumstances. [Citations.]' (People v. Howard (1992) 1 Cal. 4th 1132, 1175.)"
(Id. at pp. 404-405.) The court concluded: "[T]he record, taken as a totality, shows that
appellant knowingly and voluntarily waived her rights, and that she fully understood that
in waiving these rights it was possible that she would be denied reunification services and
could lose custody of her children. There was no error under the Boykin/Tahl test." (Id.
at p. 406.)
First, mother's reliance upon the Boykin/Tahl analogy is misplaced because
California's former rule of automatic reversal in the absence of explicit advisements has
been abrogated by subsequent judicial decision. (See People v. Mosby, supra, 33 Cal.4th
at p. 361; People v. Howard, supra, 1 Cal.4th at pp. 1175-1179.) Second, the analogy
between a defendant's submission in a criminal case and a parent's submission in a
dependency case is weak at best.
A parent's submission on the social worker's report at a jurisdiction hearing is not
a "slow plea"3 to a criminal offense4 and it does not subject the parent to a penalty.
3
"A slow plea is defined as a submission of the guilt phase to the court on the basis
of the preliminary hearing transcripts that is tantamount to a plea of guilty because guilt
is apparent on the face of the transcripts and conviction is a foregone conclusion if no
defense is offered. (People v. Wright (1987) 43 Cal. 3d 487, 496 . . . .)" (People v.
Sanchez (1995) 12 Cal. 4th 1, 28, disapproved on another ground in People v. Doolin
(2009) 45 Cal. 4th 390, 421, fn. 22.)
11
"Dependency proceedings are not designed to prosecute parents. [Citations.] In a
dependency proceeding, the state is empowered to intervene because a parent's
inadequacy puts a child at risk." (In re Nolan W. (2009) 45 Cal. 4th 1217, 1238.) "In the
dependency context, the juvenile court intervenes to protect a child, not to punish the
parent. (In re Malinda S. (1990) 51 Cal. 3d 368, 384 . . . .) The statutory scheme is
designed to permit the parent to remedy a deleterious situation and resume parental rights
and responsibilities." (Id. at p. 1233.)
As the Supreme Court recognized in In re James F. (2008) 42 Cal. 4th 901 (James
F.), there are "significant differences between criminal proceedings and dependency
proceedings." (Id. at pp. 915-916.) "Plea bargaining and other negotiated dispositions
play a significant role in criminal proceedings, but not in dependency proceedings. A
defendant in a criminal proceeding has a constitutional right to trial by jury (U.S. Const.,
6th Amend.), but in a dependency proceeding the juvenile court makes all factual and
legal determinations. The prosecution in a criminal proceeding must prove the
defendant's guilt beyond a reasonable doubt; in dependency proceedings, the burden of
proof is proof by clear and convincing evidence. (Santosky v. Kramer (1982) 455 U.S.
745, 769-770, 102 S. Ct. 1388, 71 L. Ed. 2d 599.) In a criminal prosecution, the contested
issues normally involve historical facts (what precisely occurred, and where and when),
whereas in a dependency proceeding the issues normally involve evaluations of the
parents' present willingness and ability to provide appropriate care for the child and the
existence and suitability of alternative placements. Finally, the ultimate consideration in
a dependency proceeding is the welfare of the child (see In re Marilyn H., supra, 5
4
Even if submission on the jurisdictional report was bound to lead to a juvenile
court's determination that L.P. was within its dependency jurisdiction absent any contrary
evidence, mother was not exposing herself to potential criminal liability under principles
of collateral estoppel. (See In re Nathaniel P. (1989) 211 Cal. App. 3d 660, 672; see also
In re Alexis M. (1997) 54 Cal. App. 4th 848, 851, fn. 2.)
12
Cal.4th at p. 307 . . . ; In re Malinda S., supra, 51 Cal.3d at p. 384 . . . .), a factor having
no clear analogy in a criminal proceeding." (Id. at p. 915.)
We reject the notion that mother's submission upon the jurisdiction report was the
constitutional equivalent of a criminal defendant's "slow plea" of guilt. We will examine,
however, the separate procedural due process question whether juvenile courts must
explicitly advise a parent and obtain express waivers of the due process procedural rights
that are relinquished by a submission of the determination of jurisdiction on a social
worker's report.
3. Due Process
Mother asserts that this court should find that her due process rights were violated
and that the jurisdiction hearing was fundamentally unfair because she did not receive
judicial advisements concerning her rights and waive them.
a. Background
"[T]he Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and control
of their children." (Troxel v. Granville (2000) 530 U.S. 57, 66 [120 S. Ct. 2054].)
"Because a basic civil right of the parent is thus at stake (In re Marilyn H. (1993) 5
Cal. 4th 295, 306 . . . ), significant due process safeguards have been built into the
dependency scheme (id. at p. 307 . . . ), including a right to court-appointed counsel for a
parent who cannot afford to retain counsel (Welf. & Inst. Code, § 317)." (In re James F.,
supra, 42 Cal.4th at p. 904.) It is not disputed that dependency proceedings must
comport with the requirements of due process.
The significant safeguards built into the current dependency scheme "include
representation by counsel to assist parents at every stage of the proceedings (§ 317),
notice of all hearings and rights (§§ 307.4, 308, 311, 316, 335–336, 364–366.23), clear
and convincing evidence for removal from custody (§ 361, subd. (b)), reunification
13
services (§ 361.5), and review hearings at which services and progress are reviewed (§§
366.21, 366.22)." (In re Marilyn H. (1993) 5 Cal. 4th 295, 307-308.)
The question here is whether, as a matter of constitutional due process, juvenile
courts in dependency proceedings must advise a parent who is represented by counsel, as
was mother in this case, of the parent's hearing rights and obtain the parent's express,
personal waivers of those rights before the parent may validly submit the determination
of jurisdiction to the court based upon a social worker's report. We begin with the
observation that not all constitutional rights must be explicitly waived. (See e.g. People
v. Enraca (2012) 53 Cal. 4th 735, 762 [criminal defendant's right to testify]; People v.
Gutierrez (2003) 29 Cal. 4th 1196, 1206 [criminal defendant's right to be present at trial
waived by voluntary absence during trial]; Grafton Partners L.P. v. Superior Court
(2006) 36 Cal. 4th 944, 951 [civil litigant's right to jury trial].)
b. Procedural Due Process Protections
"[The U.S. Supreme Court has] long recognized that a 'mere error of state law' is
not a denial of due process. [Citation.] If the contrary were true, then 'every erroneous
decision by a state court on state law would come [to this Court] as a federal
constitutional question.' [Citations.]" (Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21
[102 S. Ct. 1558]; see Swarthout v. Cooke (2011) 131 S. Ct. 859, 863.) Due process does
not safeguard the meticulous observance of state procedural prescriptions. (Rivera v.
Illinois (2009) 556 U.S. 148, 158 [129 S. Ct. 1446] ["Because peremptory challenges are
within the States' province to grant or withhold, the mistaken denial of a state-provided
peremptory challenge does not, without more, violate the Federal Constitution"].) Thus,
the procedural requirements established by court rules for dependency proceedings do not
necessarily constitute due process protections to which a parent is entitled.
14
Courts "examine procedural due process questions in two steps: the first asks
whether there exists a liberty or property interest which has been interfered with by the
State [citation]; the second examines whether the procedures attendant upon that
deprivation were constitutionally sufficient [citation]." (Kentucky Dept. of Corrections v.
Thompson (1989) 490 U.S. 454, 460 [109 S. Ct. 1904]; see Swarthout v. Cooke, supra,
131 S.Ct. at p. 861.) We assume that mother has a fundamental liberty interest in the
care, custody, and management of her daughter (see Santosky v. Kramer, supra,455 U.S.
at p. 753) protected by procedural due process. (See Troxel v. Granville, supra, 530 U.S.
at p. 66.)
Fundamental fairness is the touchstone of the right to procedural due process.
(Gagnon v. Scarpelli (1973) 411 U.S. 778, 790 [93 S. Ct. 1756]; see Santosky v. Kramer,
supra, 455 U.S. at pp. 753-754; Lassiter v. Department of Social Services of Durham
County, N.C. (1981) 452 U.S. 18, 33 [101 S. Ct. 2153].) "A wise public policy, however,
may require that higher standards be adopted than those minimally tolerable under the
Constitution." (Lassiter v. Department of Social Services of Durham County, N. C.,
supra, 452 U.S. at p. 33.) In deciding the constitutional sufficiency of procedures as a
matter of due process, the judiciary's role is limited to determining whether the
procedures afforded meet the essential standard of fairness and the specific procedures
required to satisfy the minimum requirements of due process. (See Landon v. Plasencia
(1982) 459 U.S. 21, 35 [103 S. Ct. 321].)
"In procedural due process claims, the deprivation by state action of a
constitutionally protected interest in 'life, liberty, or property' is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without
due process of law. [Citations.]" (Zinermon v. Burch (1990) 494 U.S. 113, 125-126 [110
S. Ct. 975], fn. omitted.) The procedural due process demands fundamental fairness,
15
especially with respect to the fact-finding procedures. (See McKeiver v. Pennsylvania
(1971) 403 U.S. 528, 543 [91 S. Ct. 1976] (plur. opn. of Blackmun, J.).) "[T]he quantum
and quality of the process due in a particular situation depend upon the need to serve the
purpose of minimizing the risk of error. Mathews v. Eldridge, 424 U.S. 319, 335, 96
S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976)." (Greenholtz v. Inmates of Nebraska Penal and
Correctional Complex (1979) 442 U.S. 1, 13 [99 S. Ct. 2100].)
"Once it is determined that due process applies, the question remains what process
is due." (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [92 S. Ct. 2593].)
"[I]dentification of the specific dictates of due process generally requires consideration of
three distinct factors: First, the private interest that will be affected by the official action;
second, 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; and
finally, the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail. [Citation.]"5 (Mathews v. Eldridge (1976) 424 U.S. 319, 335 [96 S. Ct. 893].)
"At least to the extent protected by the Due Process Clause, the interest of a person
subject to governmental action is in the accurate determination of the matters before the
court, not in a result more favorable to him." (Heller v. Doe by Doe (1993) 509 U.S. 312,
332 [113 S. Ct. 2637].) In addition, "procedural due process rules are shaped by the risk
of error inherent in the truthfinding process as applied to the generality of cases, not the
rare exceptions." (Mathews v. Eldridge, supra, 424 U.S. at p. 344.)
5
When analyzing procedural due process claims under this state's Constitution,
California courts consider a fourth factor, " ' "the dignitary 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 government official." ' [Citations.]"
(Today's Fresh Start, Inc. v. Los Angeles County Office of Educ. (2013) 57 Cal. 4th 197,
213; see In re Malinda S., supra, 51 Cal.3d at p. 383.)
16
Where a dependency petition is filed on behalf of a child and the parent is
represented by counsel, we assume, in absence of evidence to the contrary, that counsel is
competent and advises the parent of his or her hearing rights and the potential
consequences of submitting a petition for decision upon a social worker's report. (See
People v. Barrett (2012) 54 Cal. 4th 1081, 1105 ["Counsel is presumed competent and
informed as to applicable constitutional and statutory law"]; Conservatorship of John L.
(2010) 48 Cal. 4th 131, 156 ["in the absence of any contrary indication, the superior court
may assume that an attorney is competent and fully communicates with the proposed
conservatee about the entire proceeding"]; Strickland v. Washington (1984) 466 U.S. 668,
689 [104 S. Ct. 2052] ["a court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance"].) "Like all lawyers,
the court-appointed attorney is obligated to keep her client fully informed about the
proceedings at hand, to advise the client of his rights, and to vigorously advocate on his
behalf. [Citations.] The attorney must also refrain from any act or representation that
misleads the court. (Bus. & Prof. Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5-
200(B).)" (Conservatorship of John L., supra, 48 Cal.4th at pp. 151-152.)
To ensure the fundamental fairness or the accuracy or reliability of a jurisdiction
hearing in a dependency case, the minimal "dictates of due process" do not additionally
demand that parents who are being represented by counsel receive a judicial advisement
of their due process hearing rights and expressly and personally waive those rights before
submission.
c. Voluntary, Knowing, and Intelligent Submission
Both Patricia T. and Monique T. recognized that "the essential ingredients of due
process" in dependency proceedings include the right to a contested hearing on the issues
raised by the petition, the right to confront and cross-examine witnesses, and to compel
the attendance of witnesses. (Patricia T., supra, 91 Cal.App.4th at p. 404; Monique T.,
17
supra, 2 Cal.App.4th at p. 1377.) We assume that a parent's submission of the
jurisdiction determination, which waives those procedural rights, must be voluntary,
knowing, and intelligent to comport with due process. (See Johnson v. Zerbst (1938) 304
U.S. 458, 464 [58 S. Ct. 1019] ["waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege" and whether there has been "an intelligent
waiver" of a constitutional right depends "upon the particular facts and circumstances" of
the case]; see also Patricia T., supra, 91 Cal.App.4th at p. 406.) Our review of the record
indicates that mother's submission satisfied that standard.
Before the jurisdiction hearing, mother admitted to the social worker that she had
tried to slap L.P. and she had scratched L.P. She admitted that L.P. was not injured
before the incident. Mother indicated she did not want minor returned to her care without
services.
Before mother's submission at the jurisdictional hearing on April 17, 2013 in Yuba
County, mother's counsel stated: "Your Honor, my client has no objection to the report
coming into evidence. She's prepared to submit on the report. She denies the allegations
as set forth in the report. But at this point in time, she's not requesting placement of the
child with her. She does believe that her daughter needs some help. . . . And so, because
of that, she's not requesting placement. She's prepared to submit this afternoon." These
representations indicate mother and her counsel had discussed the choice of submission
prior to the hearing.
In the Department's Acceptance of Transfer Report, the social worker reported that
she had spoken with mother on May 7, 2013. Although mother denied causing minor's
black eye and swollen lip, mother again admitted that she had attempted to slap L.P. and
she had scratched L.P.'s arms. As to minor's other injuries, mother believed minor might
have been "jumped into" a gang and beaten up. "[M]other stated she did not want to have
the case . . . continued or request a trial to contest the petition because she is more
18
interested in getting help for [her daughter] to address her substance abuse and receive
therapy to address previous suicide concerns."
At the disposition hearing on June 7, 2013 in Santa Clara County, mother's
recently appointed counsel stated: "I [have] reviewed the disposition report with the
mother. We are in agreement with it. I appreciate the Department working with the
mother in striking the domestic violence support group. She is fully intending to do the
case plan. She understands there's dysfunction. She does hope that her child will come
home. [¶] She didn't necessarily agree with the way jurisdiction was taken in Yuba
County; however, she understands why her daughter is not coming home today."
We conclude that the totality of circumstances reflect that mother's submission at
the jurisdiction hearing represents a voluntary and intelligent choice among the
alternative courses of action open to her. Mother was represented by counsel, who we
presume was competent and fully advised her of her rights and likely consequences of
submitting on the social worker's report. (Cf. People v. Barrett, supra, 54 Cal.4th at p.
1105; Conservatorship of John L., supra, 48 Cal.4th at pp. 151-152, 156-157; Strickland
v. Washington, supra, 466 U.S. at p. 689.) Mother's statements and the statements of her
counsel indicate that mother understood she had a right to contest the dependency
petition but elected not to because she wanted her daughter to receive needed help and
she did not want minor to return to her care at that time.
Another relevant consideration is that, at the jurisdiction hearing, mother was
faced with her daughter's report of physical abuse and photographs of the reported
injuries and her own prior admissions. Given the evidence, it is unlikely that mother
would have avoided dependency jurisdiction by contesting the petition. Under the
circumstances, mother may have wanted to avoid testifying under penalty of perjury and
being subjected to cross-examination.
19
We conclude that mother's voluntary and intelligent waiver of known procedural
due process rights surrendered by submission of the jurisdictional determination may be
properly inferred from the record without any showing of specific advisements and
waivers. (Cf. Conservatorship of John L., supra, 48 Cal.4th at p. 153 ["In a passage that
speaks to the situation here, Moore emphasized the significance of a conservatee's
representation by counsel in determining the validity of the conservatee's waiver of a
hearing or trial: ' "When counsel is present [in a conservatorship proceeding], a
[conservatee's] voluntary and intelligent waiver of known rights may properly be inferred
from the record, without a specific on-the-record showing as to each right." '
[Citation.]"]; Conservatorship of Chambers (1977) 71 Cal. App. 3d 277, 287 ["When
counsel is present, a voluntary and intelligent waiver of known rights may properly be
inferred from the record, without a specific on-the-record showing as to each right"].)
d. No Structural Error
Mother asserts that the lack of advisements and waivers constituted
unconstitutional structural error not subject to review for harmlessness.
In James F., supra, 42 Cal. 4th 901, the Supreme Court accepted the parties'
concession that "the procedures used in this case for appointment of the guardian ad litem
did not comport with due process." (Id. at p. 911.) The court framed the issue as
"whether a juvenile court's error in the procedure used to appoint a guardian ad litem
always requires reversal or instead is subject to harmless error analysis." (Ibid., fn.
omitted.) Unlike James F., we have not found that the procedural irregularity in the
mother's submission violated due process.
Moreover, few federal constitutional errors trigger automatic reversal. "[The
United States Supreme Court has] repeatedly recognized that the commission of a
constitutional error at trial alone does not entitle a defendant to automatic reversal.
Instead, ' "most constitutional errors can be harmless." ' Neder v. United States, 527 U.S.
20
1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S.
279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). ' "[I]f the defendant had counsel and
was tried by an impartial adjudicator, there is a strong presumption that any other
[constitutional] errors that may have occurred are subject to harmless-error analysis." '
527 U.S., at 8, 119 S. Ct. 1827 (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 3101,
92 L. Ed. 2d 460 (1986)). Only in rare cases has [the] Court held that an error is structural,
and thus requires automatic reversal. In such cases, the error 'necessarily render[s] a
criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or
innocence.' Neder, supra, at 9, 119 S. Ct. 1827 (emphasis deleted)." (Washington v.
Recuenco (2006) 548 U.S. 212, 218-219 [126 S. Ct. 2546].)
As the California Supreme Court explained in James F., "Structural defects
requiring automatic reversal of a criminal conviction typically involve basic protections
without which ' "a criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence, and no criminal punishment may be regarded as
fundamentally fair." ' [Citations.] These include total deprivation of the right to counsel,
denial of the right of self-representation, trial before a judge who is not impartial,
unlawful exclusion of members of the defendant's race from a grand jury, and denial of
the right to a public trial. (Arizona v. Fulminante, supra, at p. 310, 111 S. Ct. 1246.)" (Id.
at p. 914.) As the court observed, denial of a criminal defendant's Sixth Amendment
right to choice of counsel also qualifies as a "structural error" not subject to harmless-
error analysis. (See ibid.; see also U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140, 148-152
[126 S. Ct. 2557].) Federal constitutional errors that are per se reversible "are 'structural
defect[s] affecting the framework within which the trial proceeds' so that they 'defy
analysis by "harmless-error" standards' and can never be harmless (id. at pp. 309–310,
111 S. Ct. 1246)." (James F., supra, 42 Cal.4th at p. 914.)
21
In James F., the California Supreme Court questioned "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.
(See In re Celine R., supra, 31 Cal.4th at pp. 58–59 [rejecting analogy to criminal cases
and applying harmless error analysis to improper joint representation of children in
dependency case]; In re Sade C. (1996) 13 Cal. 4th 952, 991 [stating that criminal
defendants and parents in dependency proceedings 'are not similarly situated'].)" (James
F., supra, 42 Cal.4th at pp. 915-916.) The court ultimately held that "a juvenile court's
error in the process used for appointment of a guardian ad litem for a parent in a
dependency proceeding is a form of trial error that is amenable to harmless error
analysis." (Id. at pp. 918-919.)
The bottom line is that mother has not established that the court's failure to advise
her of her hearing rights and obtain express parental waivers of those rights was federal
constitutional error, much less structural constitutional error. Any failure by the court to
comply with rules 5.534(k)(1) and 5.682 is amenable to harmless error analysis.
4. Violation of Court Rules
While we have found that the court rules requiring judicial advisement and
findings regarding waiver and submission (rules 5.534(k)(1), 5.682) are not
constitutionally compelled, we do not doubt that the requirements effectuate important
judicial policies of ensuring that parents are fully aware of their rights and make informed
decisions and minimizing the potential for error by requiring explicit advisements and
findings. In the absence of any federal constitutional error, however, our review of
noncompliance with those court rules is governed by California's Constitution, which
"prohibits a court from setting aside a judgment unless the error has resulted in a
22
'miscarriage of justice.' (Cal. Const., art. VI, § 13.)"6 (In re Celine R. (2003) 31 Cal. 4th
45, 59-60 (Celine R.).) The California Supreme Court has "interpreted that
[constitutional] language as permitting reversal only if the reviewing court finds it
reasonably probable the result would have been more favorable to the appealing party but
for the error. (People v. Watson (1956) 46 Cal. 2d 818, 836 . . . .)" (Ibid.) Mere
possibility of a more favorable result is not enough. (People v. Watson (1956) 46 Cal.2d
at p. 837.) The Watson standard of review applies to both criminal and civil cases
(Cassim v. Allstate Ins. Co. (2004) 33 Cal. 4th 780, 801) and is applicable in dependency
cases.7 (Celine R., supra, 31 Cal.4th at p. 60.)
As previously discussed, the record reflects that, before the jurisdiction hearing,
mother admitted to the social worker that she had tried to slap her daughter and had
scratched her and that minor had no injuries before they argued. Mother told the social
worker that she could not control minor and she did not want minor returned to her care
under those conditions and without services in place. The record further indicates that,
6
Article VI, section 13 of the California Constitution provides in pertinent part:
"No judgment shall be set aside . . . in any cause . . . for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a miscarriage of
justice."
7
In Celine R., supra, 31 Cal. 4th 45, a single appointed counsel represented three
children, two siblings and a half sister, who had been declared dependents of the juvenile
court. (Id. at pp. 49-50, 55.) On appeal from orders terminating parental rights, the
children argued that the court should have appointed separate counsel for the half-sister
and another counsel for the full siblings when their trial counsel expressed concern about
representing all three at the section 366.26 hearing. (Id. at p. 55.) Citing a dependency
case and criminal cases, "the children argue[d] that harmless error analysis [was]
inappropriate in cases of improper joint representation" in a dependency case. (Id. at p.
58.) The Supreme Court found the analogy to criminal cases inapt. (Ibid.) It held that,
in a dependency proceeding, "[a] court should set aside a judgment due to error in not
appointing separate counsel for a child or relieving conflicted counsel only if it finds a
reasonable probability the outcome would have been different but for the error." (Id. at p.
60.)
23
at the jurisdictional hearing, mother submitted the matter for decision based upon the
social worker's report because she wanted to secure services for minor and she did not
want minor placed in her care at that time. The appellate record does not demonstrate
that mother would have obtained a more favorable result had the court provided
advisements regarding hearing rights and made any requisite findings regarding waiver
and submission after appropriate inquiry.
B. Visitation
Mother contends that the Yuba County juvenile court erred by ordering visitation
dependent upon minor's request or assent. We asked the parties to discuss in
supplemental briefing whether the dispositional order providing for visitation superseded
prior visitation orders and renders them moot. The answer is clearly yes.
As the United States Supreme Court long ago stated, "[t]he duty of this court, as of
every other judicial tribunal, is to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect the matter in issue in the case
before it." (Mills v. Green (1895) 159 U.S. 651, 653 [16 S. Ct. 132]; see Paul v. Milk
Depots, Inc. (1964) 62 Cal. 2d 129, 132-133.) The Santa Clara County juvenile court in
its transfer-in and dispositional orders provided for supervised visitation between minor
and mother and each of those visitation orders superseded prior visitation orders. Thus,
the Santa Clara County juvenile court's visitation orders rendered any relief from past
visitation orders of the Yuba County Superior Court unnecessary or ineffectual. (See
Paul v. Milk Depots, Inc., supra, 62 Cal.2d at p. 133.)
Moreover, it appears from the record that, at the continued detention hearing on
March 27, 2013, mother, through counsel, affirmatively acquiesced to the Yuba County
juvenile court's prior order providing for visitation as arranged by the social worker at
24
L.P.'s request. Mother's counsel said, "That's fine, Judge." Although father requested a
visit with L.P. at the time of the jurisdiction hearing, mother did not.
Mother now argues: "Since for the first three months of this case, the minor was
given the ultimate say over whether she visited her mother, the minor's sense of
entitlement appears to have continued over into the reunification period in Santa Clara
County. Therefore, the Yuba County court's error must not be considered moot."8 Post-
transfer problems with visitation, which necessarily occurred under the superseding
visitation orders issued by the Santa Clara County Superior Court, do not demonstrate
that effectual relief may be afforded to mother with respect to the earlier visitation order
being challenged. If mother was experiencing problems with visitation after the transfer
of the dependency case to Santa Clara County, her recourse was with the juvenile court in
this county.
Mother contends that the visitation order of the Yuba County juvenile court
"impacted [her] ability to reunify with L.P. during the first three months of this
dependency action resulting in prejudice to her." She maintains that this court should
extend the period of reunification by three months to compensate her for the failure of the
Yuba County juvenile court to mandate visitation between minor and her. In support of
this demand, she cites Tracy J. v. Superior Court (2012) 202 Cal. App. 4th 1415 (Tracy J.)
8
In support of this assertion, counsel has asked this court to accept her declaration
concerning post-transfer problems with visitation under Code of Civil Procedure section
909. The authority conferred upon appellate courts to take evidence and make findings
of fact on appeal under Code of Civil Procedure section 909 and rule 8.252 has been
narrowly construed and should be exercised sparingly. (See In re Zeth S. (2003) 31
Cal. 4th 396, 405, 408, fn. 9; In re Elise K. (1982) 33 Cal. 3d 138, 149 (conc. opn. of Bird,
C.J.); Advisory Com. com., 23, Pt. 3 West's Ann. Court Rules (2006 ed.) foll. Rule 8.252,
p. 78.) We discern no exceptional circumstances warranting use of this power and
decline counsel's request.
25
and In re Elizabeth R. (1995) 35 Cal. App. 4th 1774 (Elizabeth R.). Neither case supports
her argument.
In both those cases, unlike this case, the court terminated reunification services
and set the dependency case for a section 366.26 hearing. Under statute, juvenile courts
cannot make such orders at a review hearing absent adequate proof that reasonable
reunification services were provided. (See §§ 361.5, subds. (a)(3) & (a)(4), 366.21,
subds. (e), (f), (g). 366.22, subd. (b); see also In re Alvin R. (2003) 108 Cal. App. 4th 962,
975.)
In Tracy J., the parents sought writ review of juvenile court orders terminating
family reunification services and setting a section 366.26 hearing. (Tracy J., supra, 202
Cal.App.4th at p. 1419.) The mother argued that she was not offered or provided
reasonable family reunification services and the juvenile court abused its discretion in not
extending the reunification period. (Id. at p. 1423.) The reviewing court concluded that
"the parents, who were developmentally disabled, did not receive reasonable family
reunification services" (id. at p. 1419) and granted writ relief. (Id. at pp. 1428-1429.)
In Elizabeth R., the issue was "whether the juvenile court was compelled by law to
terminate reunification services and order a [section] 366.26 hearing [at the 18-month
review hearing] when a parent, although hospitalized for treatment of her mental illness
for most of the reunification period, had substantially complied with the reunification
plan." (Elizabeth R., supra, 35 Cal.App.4th at p. 1787.) The court determined that the
juvenile court had "discretion to accommodate the special needs of the family of the
mentally ill in the unusual circumstances presented by this case." (Ibid.)
The Legislature has established a comprehensive statutory framework governing
provision of reunification services and extension of the reunification period. (See
§ 361.5; see also §§ 366.21, 366.22, 366.25.) Mother has not provided any authority
showing that judicial extension of the reunification period is a proper remedy for an
26
erroneous visitation order issued at an initial, pre-disposition hearing in a dependency
case.
Here, the challenged visitation order has been superseded and the propriety of the
order is now moot. If mother desired relief from it, her remedy was to seek timely review
by writ petition.
Disposition
The June 7, 2013 dispositional orders are affirmed.
_______________________________
ELIA, Acting P. J.
WE CONCUR:
____________________________
MIHARA, J.
____________________________
GROVER, J.
27