D. R., Petitioner, v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES

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Court of Appeal, Second District, California.

D. R., Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.

B220603

Decided: February 24, 2010

Law Office of Timothy Martella, Eliot Lee Grossman and Amanda Sanchez for Petitioner. No appearance for Respondent. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Deputy County Counsel, for Real Party in Interest.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Petitioner D.R. (mother) seeks writ review of orders of the juvenile court terminating family reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26 on March 5, 2010, as to mother's children, Briana R. and Mariah R.1 We issued an order to show cause.  (Cal. Rules of Court, rule 8.452(d).)

Mother contends the Department of Children and Family Services (the Department) failed to provide reasonable services with respect to housing, the juvenile court abused its discretion in failing to extend mother's family reunification services beyond the statutory limit, the children should have been placed with mother or their adult sibling and the juvenile court violated mother's right to represent herself.

We reject these contentions and deny mother's petition.

FACTUAL AND PROCEDURAL SUMMARY2

1. The detention of the children.

The children came to the attention of the Department after mother enrolled

nine-year-old Mariah R. in elementary school in January of 2008 to avoid losing a motel voucher provided to mother by Ocean Park Community Center (OPCC).   When school staff asked about Mariah R.'s previous school, mother became loud and argumentative.   Mother stated Mariah R. stopped attending an elementary school in Los Angeles in September of 2005, after a teacher grabbed Mariah R. by the arm and the police did nothing.   An assessment of Mariah R.'s educational development indicated she functioned at a kindergarten level.   The school referred mother to another elementary school which reported Mariah R. was anxious in class and unable to comprehend third grade work.   A police officer attempted to interview Mariah R. but had difficulty understanding her, even with the help of a vice principal.   Mother's OPCC case manager, who wished to remain anonymous, indicated concern about mother's erratic behavior and hostile demeanor.   The police officer investigating the matter learned mother was the subject of a psychiatric hold in January of 2005.   Further, mother is bipolar and is not receiving psychiatric services.

On the morning of January 30, 2008, police officers went to mother's motel room and found Mariah R. home alone.   Mariah R. did not know mother's whereabouts.   When mother returned, she became agitated and was arrested for child endangerment and resisting arrest.   Mariah R. and her sister, 15-year-old Briana R., were taken into protective custody.   Briana R. stated she formerly lived with maternal aunts or with a friend who had since moved.

The detention report indicated mother twice previously had been referred to the Department.   In February of 2004, a school reported Mariah R. behaves poorly in class, has poor socialization skills and poor school attendance.   Mother told the reporting party Mariah R. was abused at the age of two years at a day care center.   The reporting party offered mother mental health services but mother refused.   Mariah R. did not return to school and attempts to contact mother were unsuccessful.   In September of 2005, Mariah R.'s school reported mother was hostile toward school staff and mother stated Mariah R. was abused in four prior preschools.   Mother refused to provide a contact phone number or address.

2. Placement with maternal uncle.

In February of 2008, the children were placed in the home of maternal uncle.   The Department reported mother and the children lived with maternal uncle from 1999 until 2003 or 2004, maternal uncle has been involved with the children since their birth and he is interested in assuming responsibility for their care.   Maternal uncle told a dependency investigator that, after mother and the children moved from his home, the children would stay with him two or three days a week.   However, mother did not spend the night and maternal uncle did not know where mother stayed.   The children also stayed at their maternal aunts' home two to three days per week.

The jurisdictional report concluded “four different schools, OPCC, and the Santa Monica Police Department describe ․ mother's behavior as erratic, hostile, resistant, paranoid and aggressive.   Further, two prior hotline referrals from mandated reporters indicate that the mother acted ․ aggressive [ly] and refused to provide information to the schools.”   Mother had not provided the Department any school or employment information.   The Department noted Mariah R. demonstrates developmental delays and significant speech delay and suggested referral to the Regional Center.

The Department requested a psychological evaluation of mother because she appears to have mental health issues that interfere with her ability to make appropriate parental decisions.

3. Adjudication of the dependency petition.

One week before the contested adjudication, the juvenile court granted mother's request for self representation.3  At the start of the second day of the contested hearing, the juvenile court indicated its tentative ruling was to sustain the count that alleged mother left Mariah R. home alone in a motel room for an extended period of time without adult supervision but it would not sustain the count alleging mother had mental health problems.   After the social worker testified, the juvenile court sustained the petition as indicated and continued the matter for a contested disposition.

4. Disposition.

The disposition report indicated mother had not shown any willingness to cooperate in the case plan and had not provided proof of enrollment in parenting class or individual counseling.   Further, on September 3, 2008, the principal of Mariah R.'s school reported mother attempted to disenroll Mariah R. because Mariah R. had not been placed in the fourth grade.   Mother was “confrontational and challenging.”

Before the contested hearing, the juvenile court reappointed counsel to represent mother.   The juvenile court ordered mother to attend parenting class and individual counseling to address case issues.   The juvenile court ordered the children removed from mother's care and indicated, “I do not know where the mother resides.   All we have for the mother is a P.O. Box, which I cannot send a social worker out to assess.”   The juvenile court also indicated concern about mother's conduct with respect to Mariah R.'s education but denied the Department's request to limit mother's educational rights.   The juvenile court ordered the Department to assist mother to obtain appropriate housing and an educational assessment of Mariah R.

5. Limitation of mother's educational rights.

On October 28, 2008, the juvenile court granted the Department's request to limit mother's educational rights and appointed maternal uncle the educational representative of the children.   The juvenile court denied the Department's request for a psychological evaluation of mother but ordered mother to participate in a mental health assessment.   The juvenile court acknowledged it had not sustained the count alleging mother had mental health issues but indicated, “I do believe that there is something going on here.”

6. The first appeal.

7. The six-month review hearing.

A status report indicated the social worker had left voicemails for mother several times a week in an attempt to speak to mother regarding her current living situation, employment and whether she is participating in therapy.   However, mother had not responded.   Maternal uncle reported he does not know where mother lives or whether she is participating in counseling.   Maternal uncle indicated mother visits regularly, about five hours per week during the week and approximately 12 hours a day on the weekend.   Maternal uncle and the girls report the visits go well.   Mariah R. is now a client of the Regional Center, having been diagnosed with mild mental retardation.

At a hearing on March 24, 2009, mother's counsel asserted mother was in counseling and had completed parenting class.   The juvenile court asked whether mother had been in contact with the social worker.   Mother indicated she has attempted to call the social worker but her calls go unreturned.   The juvenile court directed the Department to provide mother current telephone information to permit mother to contact the social worker.   The juvenile court rescinded its earlier order directing mother to participate in a mental health assessment because the Department of Mental Health would not assess patients who indicate they do not need an assessment.

8. The 12-month review hearing.

A social report prepared for the 12-month review hearing indicated the social worker continued to try to contact mother without success.   However, mother had provided proof of enrollment in a 12-week parent education and an anger management course, and proof that she began participating in weekly 50-minute counseling sessions with Noelle Lee, a psychology intern, on October 10, 2008.   On March 30, 2009, the social worker contacted the psychology intern who indicated mother's counseling sessions focused on parenting issues but did not address mental health issues.   The intern indicated that, because mother had not signed a release of information, no further details of mother's therapy could be provided.

The report indicated mother's refusal to contact the social worker to discuss the case plan or to provide information about her living situation prevented a determination of whether mother was in compliance with court orders.   The Department indicated it could not safely allow unmonitored visits without first knowing where mother lives.   Further, the Department does not know what is being covered in mother's therapy sessions or if the therapist had concerns regarding mother's mental health.   The Department indicated mother left a phone message disagreeing with Mariah R.'s diagnosis of mild mental retardation.   Maternal uncle reported mother continued to visit regularly and the visits went well.

At the April 10, 2009 hearing, mother's counsel indicated mother had found a transitional housing agency that would help mother obtain housing if she had custody of the children.   Counsel asked the juvenile court to let the minute order reflect mother would have custody of the children if she obtained housing through the agency.   In the alternative, mother's counsel requested unmonitored visitation.   Counsel indicated mother would not sign a release but would ask her therapist to submit a letter regarding mother's progress in counseling.

The juvenile court found it was appropriate to continue the current placement with maternal uncle and set the matter for further review.   The juvenile court denied mother's request for unmonitored visitation.   The juvenile court stated:  “I don't know what the status is of the mother's counseling.   I need her to sign the release.   She was ordered to sign such a release at the disposition hearing.”   The juvenile court also denied mother's request for a conditional home-of-parent-mother order and noted its concern about “mother's position with regards to [Mariah R.'s] Regional Center needs․”

9. The second appeal.

In case No. B216313, we affirmed the juvenile court's order denying mother unmonitored visitation and the finding the children would be at substantial risk of detriment if they were conditionally returned to mother.

10. The 18-month review hearing.

a. Social reports.

A social report dated September 24, 2009, indicated Mariah R. was functioning below grade level both academically and socially.   Mariah R.'s educational assessment recommended a special day class program that would provide specialized instruction.   Regarding mother's individual counseling, the social worker received an e-mail from Noelle Lee, mother's psychology intern.   The e-mail stated mother attended 18 sessions of therapy ending June 22, 2009, but did not specify how mother responded to therapy, whether any goals were met or whether mother explored the reasons why her children are in the system.   The social worker spoke with mother regarding housing and sent mother information regarding various shelters and the Veterans Administration (VA).   Mother told the social worker she did not need assistance from the VA and she knew how to find housing.   The Department concluded it was not in the children's best interest to return to mother at this time due to mother's continuous instability with regards to housing.   Additionally, mother appears to have mental health issues that have not yet been addressed.   The Department recommended termination of family reunification services.

b. Mother's request to proceed in propria persona.

At the start of the hearing on September 24, 2009, the juvenile court heard and denied mother's motion to relieve appointed counsel and mother's request to proceed in propria persona.   At the hearing, mother stated she wished to represent herself because she was frustrated by the lies advanced by the Department and the failure to provide social reports 10 days in advance of the hearings.   Mother stated she believed she could do a better job than court appointed counsel, she was going to lose regardless of the presentation made on her behalf and she had “a better shot at representing myself and getting out the truth․”

The juvenile court indicated it had to balance mother's right to represent herself against the children's right to a timely resolution of their custody status.   The juvenile court noted mother had “a history of having one attorney after another;  you representing yourself;  having attorneys back on the case.”   The juvenile court noted the dependency petition was filed on February 4, 2008, but was not adjudicated until July 23, 2008, “because I had to remove two attorneys because of whatever conflict they had with you.”  “I was not able to order disposition on the case until September 24, 2008․  [¶] And even after that, on January 12, 2009, I had to relieve another attorney ․ and appoint [current counsel].”   The juvenile court indicated these substitutions had delayed the goal of permanency for the children and “I do not want to have to delay this hearing any further.”

Mother reminded the juvenile court she was successful in having one of the counts dismissed when she represented herself at the adjudication.   Mother argued she was competent to represent herself regardless of the mental health issues raised by the Department and denied she was making the request a delaying tactic.

The juvenile court, citing In re A.M. (2008) 164 Cal.App.4th 914, noted mother had only a statutory right to self representation in a juvenile dependency proceedings.   Thus, the juvenile court had discretion to deny the request if it was reasonably probable self representation would unduly delay the proceedings and impair the children's right to a prompt resolution.   The juvenile court noted mother did not request pro per status when she asked for a contested review hearing.   Further, the social worker was present in court and ready to proceed.   When the juvenile court asked if mother were ready to proceed, mother responded she was not but would be ready in a week.

The juvenile court found it would not be in the children's best interest to delay the proceedings and denied mother's request.   Although the juvenile court did not believe mother's previous requests to represent herself were delay tactics, “I do believe that it has delayed the court being able to adjudicate the petition and to be able to order disposition in this matter, and as a result, I am not inclined to relieve [counsel] at this time.”

c. The contested hearing.

After conducting the contested hearing, the juvenile court urged mother to sign a release to permit the social worker to obtain a report from mother's therapist.   The juvenile court again indicated it needed to know where mother lived before the children could be placed in her care.   The juvenile court indicated it understood mother's situation might change in the next week.   I need to have [a street] address ․ where the social worker can go out and assess the place․”

The minute order of the proceeding indicates mother signed a release of her medical records held by her counselor, Noelle Lee, and submitted it to the juvenile court.   The matter was continued for receipt of further information from mother's therapist and an update on mother's housing.

d. Further reports;  termination of family reunification services.

A social report submitted October 7, 2009, included a letter from Noelle Lee's supervisor, Dr. Rhonda Brinkley-Kennedy, which states:  “Although [mother] completed approximately 18 counseling sessions, she was not able to understand her responsibility in the protection of her youngest child.   She spent most of her sessions complaining about the social worker and the system that took her children․  [¶] ․ [¶] Most of the sessions were about her incessant talking about her anger at the courts, social workers and organized institutions and systems.   For example, on one occasion, she spoke of preferring sleeping on a bench instead of shelters because she didn't trust them.   She had paranoid tendencies, not trusting most people.   She felt that the social worker was evil, and reported being victimized most of her life by others on several occasions.  [¶] It is recommended that [mother] continue psychological assessment to determine possible need for medication and/or possible SSI qualification.   Although she loves her children and desires to have them back, more [in depth] monitoring and treatment and increased life skills are recommended if family reunification is being considered.”

The social worker was unable to communicate with mother's therapist at the VA because mother would not sign a release of VA information.   However, on October 1, 2009, mother provided the social worker with a letter from Bing Hsu, M.D., mother's psychiatrist at the VA, dated March 2, 2009.   In the letter, Dr. Hsu states he treated mother for approximately one year in 2005 and again starting this year.   Dr. Hsu indicated mother has been diagnosed with “a chronic psychiatric condition for which she is receiving treatment.”   Dr. Hsu noted mother has been treated by others since 2002 but there has never been any report of potential harm to mother's children based on her action or lack of action.

The Department complained that, notwithstanding Dr. Hsu's letter, it remained unaware of the nature of mother's psychiatric condition, whether mother is required to take medication and whether mother is compliant.   Dr. Hsu's statement mother had never been the cause of potential harm to the children based on her lack of action suggests the doctor is unaware of the basis for the current dependency proceeding.

Regarding housing, the social worker learned mother has a case manager with the VA Section 8 housing division and that mother was issued a Section 8 housing voucher on October 2, 2009.

The report noted that, at the last hearing, mother and Briana R. requested placement of the children with their 21-year-old sibling.   The social worker inspected the sibling's one-bedroom apartment on October 5, 2009.   The sibling indicated she would sleep in the living room until a two-bedroom apartment became available in the building.   The sibling works part time and attends online classes at UCLA. The social worker noted Briana R. is now 16 years old, she plans to attend college and maternal uncle has emphasized Briana R.'s education.   The social worker doubted a 21-year-old with many important responsibilities of her own could devote the time and effort required to care for the children.   Also, 10-year-old Mariah R.'s educational needs require much attention and her caregiver will need to be fully involved to ensure her educational needs are met.   The Department concluded it was not in the best interests of the children to return to mother at this time due to mother's continuous instability regarding housing.

The matter was continued to November 5, 2009, due to illness of mother's counsel.

A last-minute information form indicated the social worker met with mother on November 3, 2009, to provide mother a monthly bus pass.   Mother reported she had leased an apartment and planned to move in on November 6, 2009.   Mother did not provide proof of this information and did not want the social worker to communicate with the landlord.   Mother stated she found this apartment on her own and indicated she receives $1,200 a month in disability income but did not provide proof of income.

On November 5, 2009, the juvenile court marked for identification the letter from Noelle Lee's supervisor and the letter from Dr. Bing Hsu of the VA. Mother's counsel indicated mother had provided the social worker an address where mother would be living but the social worker refused to evaluate the home for placement of the children.

The juvenile court found the issues that brought the children into the dependency system had not been resolved.   Mother's visits remain monitored because mother refuses to cooperate with the Department.   The juvenile court stated it could not return the children to mother without first assessing mother's home and having mother advance to unmonitored visitation.   The juvenile court set a hearing under section 366.26 on March 5, 2010 to consider a permanent plan of legal guardianship with maternal uncle for Mariah R. The juvenile court directed the Department to interview Briana R. with respect to her preferred permanent plan.   At the close of the hearing, the juvenile court granted mother unmonitored visitation

CONTENTIONS

Mother contends the Department failed to provide reasonable services with respect to housing, the juvenile court abused its discretion in failing to extend family reunification services beyond the 18-month limit, the children should have been placed with mother or their adult sibling and the juvenile court violated mother's right to represent herself.

DISCUSSION

1. The Department provided reasonable family reunification services.

Mother contends the Department failed to provide reasonable services with respect to housing.   Mother claims the social worker assigned to mother's case gave mother only two housing referrals.   The first was a referral to Alcott Center, which provides housing to mentally ill adults, and the second was to the VA. Mother claims the first referral was inappropriate and the second was of no assistance in that mother already had a patient advocate at the VA. Mother further contends the social worker improperly refused to inspect her prospective apartment because mother had not yet moved in.

Mother argues she is being denied custody of her children only because she is homeless.   Mother concludes the matter must be remanded with directions to provide additional family reunification services.  (In re P.C. (2008) 165 Cal.App.4th 98, 106-107.)

“A social services agency is required to make a good faith effort to address the parent's problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult.  [Citation.]”  (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)  “[W]ith regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered․”  (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)  “[I]n reviewing the reasonableness of the reunification services provided by the Department, we must also recognize that in most cases more services might have been provided, and the services which are provided are often imperfect.   The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances.”   (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969;  In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

Here, mother appeared at the Department's office to obtain a monthly bus pass but did not otherwise cooperate with the social worker.   Mother refused to maintain contact with the social worker even though the Department made extraordinary efforts to field mother's telephone calls.   Although mother claims she received referrals for only two housing programs, the referral mother received included upwards of 40 different programs.   Mother complains the Alcott Center was inappropriate because it catered to individuals with mental health issues.   However, the record supports the strong possibility mother has mental health issues.   Thus, the referral was appropriate.

In any event, the record reveals that, in addition to the referrals provided by the Department, mother obtained a Section 8 housing voucher which would have permitted her to obtain housing had she wished to do so.   Thus, the evidence shows the Department gave mother housing referrals but mother failed to take advantage of the services provided.   The Department cannot force an unwilling parent to participate in the case plan.  “ ‘Reunification services are voluntary ․ and an unwilling or indifferent parent cannot be forced to comply with them.  [Citations.]’  “ (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365.)

Finally, the Department properly declined to inspect mother's apartment before mother moved in.   Putting aside the fact mother asked the social worker not to contact her prospective landlord, the apartment could not be assessed for placement of the children until mother had moved her possessions into the apartment.

In sum, the record reflects the Department provided mother reasonable family reunification services.

2. The juvenile court properly refrained from extending family reunification services beyond the statutory limit.

Mother contends the juvenile court abused its discretion in failing to extend family reunification services beyond the 18-month limit.   Mother claims this case presents exceptional circumstances, including mother's devotion to the children, her homelessness and the social worker's refusal to inspect mother's apartment before mother moved into it.   Mother claims she is being denied custody of her children because she is homeless.  (In re P.C., supra, 165 Cal.App.4th at pp. 106-107;  In re G.S.R., supra, 159 Cal.App.4th at p. 1212;  In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.)

Mother claims the Elizabeth R. line of cases (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1794-1796) should be applied here because she has a special need for housing.   Mother notes the children consistently have expressed an interest in returning to mother's care.   Mother concludes it was an abuse of discretion not to extend family reunification services beyond the statutory limit.

The Legislature has recognized there must be a limitation on the length of time a child has to wait for a parent to become adequate in order to prevent children from spending their lives in the uncertainty of foster care.  (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)   Mother concedes the 18-month limit of section 361.5, subdivision (a)(3) applies in this case.

A juvenile court may exercise its discretion to extend family reunification services beyond the statutory limit in a special needs case.  (In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1794-1796;  In re Daniel G. (1994) 25 Cal.App.4th 1205, 1213-1214;  In re Dino E. (1992) 6 Cal.App.4th 1768, 1777-1778.)   However, in these cases there were extraordinary circumstances which militated in favor of extension of family reunification services beyond the 18-month limit.   These circumstances uniformly involved some external factor which prevented the parent from participating in the case plan.

Here, the failure of the case plan was not caused by inadequate services or an external force over which mother had no control, but by mother's refusal to cooperate with the Department.   Mother was not denied custody of her children because she was homeless.   The juvenile court reasonably could conclude mother's resistance to the case plan did not constitute extraordinary circumstances or special needs necessary to support an extension of family reunification services beyond the statutory limit.   Accordingly, the juvenile court committed no error in refusing to extend family reunification services in this case.  (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388-1389.)

3. Risk of detriment.

Mother contends the Department failed to prove the children would be at risk of detriment if returned to mother or to the children's 21-year-old sibling until mother obtained suitable housing.   Mother also asserts that, based on the social worker's assessment of the adult sibling's home, the children would not have been at risk in the adult sibling's care.   Mother claims the only risks mentioned by the Department were mother's need for housing and mother's resistance to Mariah R.'s educational diagnosis.   With respect to housing, mother reiterates her prior argument.   Regarding Mariah R.'s educational diagnosis, mother argues it may be the result of racial stereotyping.   She suggests mainstreaming the child with extra tutoring is “entirely reasonable.”

In evaluating whether a child will be at substantial risk of detriment if returned to his or her parent, the juvenile court must consider the extent to which the parent participated in reunification services as well as the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement.  (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)   On review, we determine whether substantial evidence supports the juvenile court's finding.  (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)

Here, the evidence supports the juvenile court's finding the children would be at risk of harm in the care of mother.   A parent must do more than comply with the case plan;  he or she must make progress in eliminating the conditions that led to the intervention of the juvenile court.  (In re Dustin R., supra, 54 Cal.App.4th at p. 1143.)   As previously noted, mother has maintained an adversarial relationship with the Department and she refuses to take advantage of the services offered to her.

Regarding placement of the children with their 21-year-old adult sibling, mother did not request placement with the sibling at the 18-month review hearing.   In any event, the children have been in the care of maternal uncle since February of 2008 and the record reveals he was involved in their care for several years before that time.   An order removing the children from the care of maternal uncle, who has provided excellent care, and placing them with a 21-year-old sibling would not have promoted the best interests of the children.

Finally, mother argues the juvenile court's grant of unmonitored visitation is inconsistent with its statement it could not transition from unmonitored visitation to home of parent without knowing anything about mother's home and without first having mother advance to unmonitored visitation.   Because this order is favorable to mother, there was no prejudice to mother in the order liberalizing her visitation.

4. The juvenile court did not abuse its discretion in denying mother's request to represent herself.

Mother contends the juvenile court's refusal to permit mother to represent herself at the contested 18-month review hearing violated her statutory right to represent herself. (§ 317, subd. (b);  In re A.M., supra, 164 Cal.App.4th at p. 923.) 4  Mother notes she conducted herself appropriately when she represented herself at the jurisdiction hearing and concludes she should have been permitted to represent herself at the 18-month review hearing.

Mother also contends she has a constitutional right to self representation in a juvenile dependency proceeding for the same reasons a criminal defendant has the right to self representation.   She claims the cases that have rejected this view, such as In re A.M., supra, 164 Cal.App.4th at p. 923 and In re Angel W. (2001) 93 Cal.App.4th 1074, 1083, were wrongly decided.

Mother argues there had been no delays occasioned by mother representing herself and the one-week delay requested by mother cannot be considered so prejudicial to the children's interest in prompt resolution as to justify denial of mother's right to self representation.   Mother concludes the juvenile court erroneously cited past delay as a basis for denying her request and the juvenile court's violation of her federal constitutional right to self representation is a structural error which requires a new trial without a showing of prejudice.

We agree with the cases that hold section 317, subdivision (b) gives rise only to a statutory right to self-representation in a juvenile dependency case.   Because the right of self-representation in a dependency proceeding is statutory rather than constitutional, denial of the right is analyzed under the ordinary principles of harmless error.  (In re Angel W., supra, 93 Cal.App.4th at p. 1085.)   Review of the record in this case reveals it is not reasonably probable that a result more favorable to mother would have been reached had mother represented herself.  (People v. Watson (1956) 46 Cal.2d 818, 837.)

Moreover, even assuming for the sake of discussion that mother had a constitutional right to represent herself, her claim of error fails.

In order to exercise the right of self-representation in a criminal matter, the defendant must make an unequivocal, knowing and voluntary assertion of the right within a reasonable time before the trial starts.  (Faretta v. California (1975) 422 U.S. 806, 819 [45 L.Ed.2d 562].)   A defendant's motion for self-representation is timely if it is unequivocally asserted “within a reasonable time prior to the commencement of trial.”  (People v. Windham (1977) 19 Cal.3d 121, 128, fn. omitted.)   If a self-representation request is untimely, a trial court has discretion to grant or deny that request and “shall inquire sua sponte into the specific factors underlying the request,” including:  “the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.”   (Id. at p. 128.)

Here, mother asked to represent herself shortly before the contested hearing began.   This renders the request untimely, giving the juvenile court discretion to grant or deny the request.   Furthermore, mother's motion to represent herself was conditioned on the grant of a one-week continuance of the hearing.   In considering mother's request, the juvenile court noted mother's prior proclivity to substitute counsel, the length and stage of the proceedings and the delay of permanency for the children if mother's request were granted.   The juvenile court also noted the social worker was present in court for the hearing.

Based on this record, it appears the juvenile court implicitly, if not explicitly, considered the Windham factors and denied mother's request, which was conditioned on a continuance of the hearing.  (People v. Marshall (1996) 13 Cal.4th 799, 828 [explicit or implicit consideration of Windham factors is sufficient];  People v. Scott (2001) 91 Cal.App.4th 1197, 1206.)   Consequently, even if mother has a constitutional right to proceed in propria persona in juvenile dependency matters, the juvenile court committed no abuse of its discretion in denying mother's untimely request for self-representation.

DISPOSITION

The petition is denied.   Our decision is final immediately as to this court.   (Cal. Rules of Court, rule 8.490(b)(3).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Subsequent unspecified statutory references are to the Welfare and Institutions Code..  FN1. Subsequent unspecified statutory references are to the Welfare and Institutions Code.

FN2. We have taken judicial notice of the record on appeal in mother's previous appeals in case Nos. B211031 and B216313..  FN2. We have taken judicial notice of the record on appeal in mother's previous appeals in case Nos. B211031 and B216313.

FN3. The first and second attorneys appointed to represent mother successfully moved to withdraw as her counsel.   The third attorney appointed to represent mother was relieved when mother requested pro per status..  FN3. The first and second attorneys appointed to represent mother successfully moved to withdraw as her counsel.   The third attorney appointed to represent mother was relieved when mother requested pro per status.

FN4. Section 317, subdivision (b) requires appointment of counsel for an indigent parent or guardian in a juvenile dependency case “unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.”.  FN4. Section 317, subdivision (b) requires appointment of counsel for an indigent parent or guardian in a juvenile dependency case “unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.”

CROSKEY, J. KITCHING, J.

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