M.R. v. Super. Ct. CA1/4 filed
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Filed 2/16/11 M.R. v. Super. Ct. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR M.R., A130531 Petitioner and Appellant, v. (Sonoma County Super. Ct. No. DEP-3431) SUPERIOR COURT OF SONOMA COUNTY, Defendant and Respondent; SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Real Party in Interest. C.R., Petitioner and Appellant, v. A130544 SUPERIOR COURT OF SONOMA COUNTY, (Sonoma County Super. Ct. No. DEP-3431) Defendant and Respondent; SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Real Party in Interest. I. INTRODUCTION M.R. (Father) and C.R. (Mother), the parents of a male infant (Minor), have each filed a petition for an extraordinary writ pursuant to Welfare and Institutions Code 1 section 366.26, subdivision (l), and California Rules of Court, rules 8.452 and 8.456, seeking review of a juvenile court order setting this dependency matter for a hearing under Welfare and Institutions Code section 366.26 for the termination of their parental rights.1 After the infant Minor was declared a dependent child of the juvenile court (§ 300), the court bypassed reunification services (§ 361.5, subd. (b)), because parental rights to the Minor s four older siblings had been permanently severed approximately a year earlier and the parents had not subsequently made a reasonable effort to treat the problems that led to the siblings removal. Both parents claim the dependency petition filed on behalf of Minor should not have been sustained because there was no present risk of harm to the infant. Both parents further claim they should have been offered reunification services because they made reasonable efforts to address the reasons their older children had been removed from their care. Father also argues he should have been allowed to represent himself, which request was denied by the court. We deny each of their petitions. II. FACTS AND PROCEDURAL HISTORY A. Dependency Proceedings Involving the Minor s Older Siblings2 Father and Mother are the parents of four children, besides Minor.3 On March 14, 2008, before Minor was born, the Sonoma County Human Services Department (the Department) filed a section 300 petition on behalf of then six-year-old I.R., four-year-old C.R., two-year-old E.R., and eleven-month-old R.R., alleging, among other things, that the parents had failed to provide their children with adequate care, supervision, and a safe 1 All further section references are to the Welfare and Institutions Code, and all rule references are to the California Rules of Court. 2 We take judicial notice of this division s unpublished opinion (In re I.R., A127295, Dec. 16, 2010) concerning Minor s older siblings and half sibling. (Evid. Code, § 452, subd. (d) [judicial notice may be taken of court records]; Cal. Rules of Court, rule 8.1115(b)(1); Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171, 1173 [court may take judicial notice of prior unpublished opinion in related appeal].) 3 Mother has an older child, T.T., who is living with family members. 2 living environment. The petition alleged the parents had a history of substance abuse and domestic violence, and that Father used inappropriate physical discipline with the children and had engaged in physical altercations with Mother in the presence of their children, putting them at substantial risk of harm. The Department s social worker prepared a report and submitted it to the court in advance of the initial jurisdictional/dispositional hearing. The report provides a detailed history of this case, including that Father had a long pattern of intimidating Mother and abusing her physically and sexually, and that he had physically abused the children. It was also reported that Father was involved in drug sales, illegal cockfighting, and marijuana cultivation. The juvenile court declared the four children dependent children of the court under section 300. The case plan provided for supervised visitation with the children and for Mother to attend a domestic violence survivor s support program and parenting classes. The Department s report indicates that after participating in a number of parenting classes, Mother s classes were terminated because of her paranoid and chaotic speech patterns, which indicated it would not be possible to address the problems in Mother s family life. In a report prepared for the 12-month review hearing, the Department recommended reunification services be terminated. Despite the fact that Mother had completed a 16-week domestic abuse survivors group and had obtained a restraining order against Father, there was evidence that they were still living together. Mother s therapist reported that Mother appeared to view Father s assaultive behavior as somehow normal or acceptable. According to an addendum report, the violence within the household continued. In April 2009, Mother said Father was in her home without permission, that he held her against her will, and that she had been the victim of domestic violence and spousal rape. Although he gave conflicting statements, at one point Father admitted he had been living with Mother for eight to twelve months with Mother s consent. 3 On May 19, 2009, the juvenile court terminated both parents reunification services and set a section 366.26 hearing for Minor s older siblings. In anticipation of the hearing, a bonding assessment was prepared which concluded that none of the children had a substantial positive emotional attachment to Mother such that they would be greatly harmed if the parent-child relationship were terminated. The court subsequently terminated both parents parental rights and freed all four of Minor s older siblings for adoption. Only Mother appealed the termination of her parental rights. On December 16, 2010, in a nonpublished opinion, this court affirmed the juvenile court s orders. (In re I.R., supra, A127295.) B. The Minor s Detention Mother gave birth to Minor nine months after termination of Mother and Father s parental rights to their other four children. The Department immediately placed a hospital hold on Minor and filed a petition alleging Minor was a person within the meaning of section 300, subdivisions (a), (b) and (j). The petition alleged, among other things, that Minor was at risk of suffering serious physical harm because Father and Mother had a history of domestic violence which would put Minor at risk if he were to be released to his parents custody. The petition also alleged that Minor s four older siblings had been removed from the parents care due to domestic violence, physical abuse by Father, and being subjected to an unsafe living environment. After receiving approximately a year s worth of reunification services in the earlier case, parental rights to these children were terminated on or about December 14, 2009.4 The Department s social worker filed a jurisdiction/disposition report. The social worker recommended that Minor be declared a dependent of the court and that Mother and Father be denied reunification services, since they had both previously received appropriate services by the Department to address the domestic violence, substance 4 On October 12, 2010, the Department asked the court to take judicial notice of Minor s siblings case files. The record indicates judicial notice was taken and the court reviewed those files in conjunction with this proceeding. 4 abuse and unsafe environment in their home; and nevertheless, their parental rights to their other children had been terminated. The social worker reported that neither Mother nor Father had subsequently made a reasonable effort to treat the problems that led to the removal of Minor s siblings. The report states: Currently, both parents continue to deny any personal responsibility for their past behaviors that directly caused them to lose their parental rights to their children. Furthermore, neither parent has made substantive changes in their thinking or behaviors, and the pattern of domestic violence is still evident in their relationship. The social worker s reference to continuing domestic violence in the parents relationship refers to Mother s response when the social worker noted that, due to the timing of Minor s birth, Mother must have had a sexual relationship with Father sometime in December 2009, around the time their parental rights to their other children were being terminated by the court. Mother replied, There was a situation that happened, that was not in my control. When asked for clarification as to whether or not Father forced her to have sex with him, Mother said, It was not in my control, that s all I m saying. 5 Father claimed that this sexual encounter was consensual. After a contested jurisdictional hearing held on November 10, 2010, the court sustained the section 300 petition filed on behalf of Minor and ordered a bypass of reunification services for both parents pursuant to section 361.5, subdivision (b). The court found that the extent of progress made by the parents toward alleviating or mitigating the causes necessitating placement had been nonexistent. The court then set the section 366.26 hearing for March 2, 2011. Father and Mother have each filed a petition in this court for an extraordinary writ pursuant to section 366.26, subdivision (l) 5 Mother also reported that sometime in December 2009, around the time her parental rights were being terminated, she had a casual sexual encounter with a man she had just met on the street that could have resulted in Minor s conception. When Father testified at the jurisdictional hearing, he stated he was waiting for the results of a paternity test. 5 and rules 8.452 and 8.456, seeking review of the juvenile court order setting this matter for a hearing under section 366.26 for the termination of their parental rights.6 III. DISCUSSION A. Substantial Evidence Supports the Court s Jurisdictional Finding Mother and Father each claim that there was no substantial evidence to support the court s jurisdictional finding that Minor was a child described by section 300, subdivisions (a) [physical abuse]; (b) [neglect]; and (j) [sibling abuse]. All of the allegations related to the parents past conduct with regard to Minor s older siblings and the risk of harm that is posed to Minor. The parents now argue there was insufficient evidence that the newborn Minor was at risk as a result of the parents past conduct. On appeal, we may not reweigh or express an independent judgment on the evidence, but must decide only whether sufficient evidence supports the findings of the juvenile court. (In re Amy M. (1991) 232 Cal.App.3d 849, 859.) The juvenile court can establish jurisdiction by finding only one of several allegations true. (See § 300 [ Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court. (Italics added.)].) When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court s jurisdiction, a reviewing court can affirm the juvenile court s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.] (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; accord, In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6.) 6 Both petitions were consolidated for purposes of argument and decision on the court s own motion. (Order, Dec. 30, 2010, Ruvolo, P. J.) 6 Regardless of the other bases for jurisdiction, the parents contention fails on the merits as there is substantial evidence supporting the court s finding that Minor was a child described by section 300, subdivision (j). That section provides: The child s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. Thus, section 300, subdivision (j), requires sufficient evidence to support findings of past abuse of a sibling, as well as substantial risk that the child before the court has been or will be abused in the future. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 566567 (Ricardo L.).) The first prong is met in this case by the fact that Minor s siblings were all made dependents of the court as a result of the physical abuse of one or more of the siblings, the domestic violence between the parents, and the fact that the house was found to be an unsafe environment for the children. However, Mother and Father each assert there was insufficient evidence to support the juvenile court s finding of a substantial risk of harm to Minor. Each parent claims there was not a sufficient nexus between the harm inflicted on the siblings and the risk of harm posed to Minor at the time of the adjudication hearing in the dependency proceeding. While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citation.] (Ricardo L., supra, 109 Cal.App.4th at p. 565.) Thus, past conduct, standing alone, does not establish a substantial risk of harm, there must be some reason beyond mere speculation to believe they will reoccur. [Citations.] (Ibid.; In re James B. (1986) 184 Cal.App.3d 524, 529-530 [jurisdiction is necessary if parent is unwilling or unlikely to protect children against threat of similar harm in the future].) In sustaining the section 300, subdivision (j) allegations in the instant proceeding, the court had before it overwhelming evidence that the parents had failed to address the problems that led to the removal of Minor s older siblings which put Minor at risk of serious harm. The juvenile court has always been concerned with the violence in this 7 family, as evidenced by the numerous allegations of spousal and child abuse in this record. Significantly, this is not a case in which the past incidents of domestic violence are remote in time. The petitions on behalf of Minor s siblings in the earlier dependency case were filed in March 2008 and jurisdiction was assumed in April 2008. Both parents received family reunification services from the Department from April 2008 until May 2009, when reunification services were terminated because they were determined to be ineffective to remedy the risk to Minor s siblings. Subsequently, in December 2009, the court terminated their parental rights and ordered adoption as the appropriate permanent plan for all four of their children. Minor was born approximately nine months later. Mother made statements to the Department s social worker that led him to believe that Minor s conception might have been the result of spousal rape in December 2009. However, she was inconsistent in her account of these events and less than honest or forthcoming in her dealings with the Department, which continues a pattern of evasive behavior established in the previous dependency case. Most importantly, in assessing the risk of harm to the newborn Minor, Mother testified she had allowed the restraining order she had obtained against Father to expire because she felt safe around him. This was consistent with her tendency to minimize the risk of domestic violence which the social worker testified raised grave concerns about her ability to protect herself and [Minor]. With respect to Father, according to the Department, he blamed the workers, attorneys and judges for the outcome of his Dependency case with his other children. As the Department stated, [I]f [Father] cannot acknowledge what happened to his family in the past and his responsibility for those events, he clearly has not made a reasonable effort to address those issues. Consequently, the record established more than a sufficient basis for the court s findings that the parents past conduct put Minor at risk of serious physical and emotional harm. (In re S.O. (2002) 103 Cal.App.4th 453, 461-462 [mother s failure to address factors that led to her failure to protect children from domestic violence created risk harm would continue].) 8 B. Substantial Evidence Supports Denial of Reunification Services Each parent contends the court erred in denying them reunification services under section 361.5, subdivisions (b)(10) and (b)(11), because substantial evidence does not support the finding that, subsequent to failing to reunify with Minor s siblings, they did not make a reasonable effort to treat the problems that led to the siblings removal.7 We disagree. As Division Five of this District recently explained in In re Allison J. (2010) 190 Cal.App.4th 1106: Section 361.5, subdivision (b) reflects the Legislature s desire to provide services to parents only where those services will facilitate the return of children to parental custody. [Citations.] (Id. at p. 1112.) In section 361.5, subdivision (b), the Legislature recognize[d] that it may be fruitless to provide reunification services under certain circumstances . . . . When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be an unwise use of governmental resources. [Citations.] (In re Allison J., supra, at p. 1112.) An appellate court reviews an order bypassing reunification services for substantial evidence. (See Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 (Cheryl P.).) The issue before us turns on the second prong of section 361.5, subdivisions (b)(10) and (b)(11) whether the parents have subsequently made a reasonable effort to 7 Among the two bases the juvenile court cited for denying Mother and Father services were section 361.5, subdivisions (b)(10) and (b)(11). In the first of two prongs, subdivision (b)(10) authorizes the juvenile court to deny services when the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . pursuant to Section 361 . . . . The first prong of subdivision (b)(11) allows the juvenile court to deny services when the parental rights of a parent over any sibling or half sibling of the child had been permanently severed . . . . Both subdivisions contain the same second prong, namely that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent . . . . (361.5, subds. (b)(10), (b)(11).) 9 treat the problems that led to removal of the sibling . . . . The inclusion of the noreasonable effort clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems. (In re Harmony B. (2005) 125 Cal.App.4th 831, 842.) In applying that part of the statute, case law instructs, the reasonable effort to treat standard contained in the statute is not synonymous with cure. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) Thus, for example, the mere fact that [the mother] had not entirely abolished her drug problem would not preclude the court from determining that she had made reasonable efforts to treat it. (Ibid.) Nevertheless, the provision is meant to ensure that lackadaisical or half-hearted efforts would not be deemed adequate . . . . (Cheryl P., supra, 139 Cal.App.4th at p. 99.) Testifying at the November 2010 jurisdictional hearing, the Department s social worker indicated that the issues that brought Minor s older siblings into the system were domestic violence, substance abuse and unsafe home environment. These issues had remained largely unresolved. He testified, I was hoping to see that . . . the parents had really come to terms with why their children had been taken from them in the past, why reunification services failed and why their rights had been terminated. I wanted to know if . . . they had done anything since then that would help with those issues. He testified that neither parent had presented any evidence or information to him indicating that they had made efforts to address the reasons their other children had been removed from their custody.8 8 Since Mother s parental rights to her older children had been terminated, she indicated she had continued in individual therapy. However, she did not tell the social worker what issues she was dealing with nor did she give him any other details about her therapy. Additionally, she would not sign a release allowing the Department s social worker to talk with her therapist. 10 On this record, we find substantial evidence to support the juvenile court s decision to deny the parents reunification services based on section 361.5, subdivisions (b)(10) and (b)(11). (See In re Allison J., supra, 190 Cal.App.4th at p. 1117 [ father s prior convictions and his history of domestic violence with mother, coupled with his violation of the restraining order and his refusal to accept responsibility for his actions, create a possibility of harm to [the child] that provides the basis for the denial of services ].) C. Denial of Father s Request to Represent Himself Father claims that the juvenile court erroneously denied his request to represent himself. On September 20, 2010, the court denied Father s request for new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court additionally denied a request for self-representation by Father, without prejudice. On October 12, 2010, in open court, Father once again requested that he be given the opportunity to represent himself. The court denied the request for self-representation, without prejudice, indicating that given the significant complexities of juvenile law, Father would be placed at an unimaginable disadvantage. 9 The statutory right to appointed counsel (§ 317, subd. (b)), has been interpreted to give a parent in a juvenile dependency case a statutory right to self-representation. [Citation.] (In re A.M. (2008) 164 Cal.App.4th 914, 923 (A.M.).) The parent s right to self-representation, however, is statutory only; the United States Constitution and the California Constitution do not give a parent the right to self-representation. (Ibid.; In re Angel W. (2001) 93 Cal.App.4th 1074, 1082-1083 (Angel W.).) [A] parent s request for self-representation in a juvenile dependency proceeding differs from the same request by a criminal defendant in two significant respects. First, as explained, the parent s right of self-representation is statutory, not constitutional, and therefore must be balanced against other parties rights. Second, the parent s exercise of 9 Father was represented throughout these proceedings by counsel, who did an admirable job under extremely difficult circumstances. 11 the statutory right of self-representation could affect the child, who also has rights requiring protection. (A.M., supra, 164 Cal.App.4th at pp. 924-925.) Nonetheless, the court must respect the right of the parent to represent him- or herself as a matter of individual autonomy and avoid forcing the mentally competent parent to proceed with appointed counsel in the guise of protecting a person who is unskilled in the law and courtroom procedure. [Citations.] (Angel W., supra, 93 Cal.App.4th at p. 1084; accord, A.M., supra, at p. 924.) Any error in denying the right of self-representation should be analyzed under ordinary principles of harmless error as set forth in People v. Watson (1956) 46 Cal.2d 818, 837. (Angel W., supra, 93 Cal.App.4th at p. 1082.) Under those principles, even if the court erred, it does not appear reasonably probable that a result more favorable to Father would have been reached had he represented himself. (People v. Watson, supra, 46 Cal.2d at p. 837.) Father s argument for prejudice is that if he had been given the opportunity to represent himself, he might have been able to establish further evidence about bias of the department . . . . Given Father s violent history, his continued denial of responsibility for the current situation, and his utter failure to address the problems leading to Minor s detention, it is extremely unlikely pursuing this line of argument would have enabled him to overcome the evidence before the juvenile court.10 Therefore, even if Father had been allowed to represent himself, there is nothing to indicate that he could have brought about a different result. Accordingly, any conceivable error is harmless. 10 The court was well aware that Father believed the Department was biased against him, indicating at one point, that Father has had a kind of a theme of bias on one part or the other of all of the players in this proceeding. 12 III. DISPOSITION The petition for extraordinary writ review is denied on the merits. (§ 366.26, subds. (l)(1)(C), (l)(4)(B).) Our decision is final immediately. (Rules 8.452(i), 8.490(b)(3).) _________________________ RUVOLO, P. J. We concur: _________________________ REARDON, J. _________________________ SEPULVEDA, J. 13
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