IN RE: MICHAEL R.

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Court of Appeal, First District, Division 4, California.

IN RE: MICHAEL R., a Minor. NAPA COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. LEROY R., Objector and Appellant.

No. A033465.

Decided: December 29, 1987

Howard J. Specter, San Francisco, for objector and appellant. R. Clifford Lober, County Counsel, David L. Zaltsman, Marguerite Stein, Deputies, Napa, for petitioner and respondent.

Defendant Leroy R. (appellant or Leroy) appeals from the trial court's judgment declaring Michael, his minor son, free from parental custody and control pursuant to Civil Code section 238.1   The relevant facts leading to the appeal may be summarized as follows:

Michael was born on November 20, 1981, in Napa, California.   At the time of his birth, Leroy, his natural father, and Doris Ogden, his natural mother (Doris) were unmarried, living together.   Approximately two weeks following the child's birth, Doris left Leroy and moved back to her father's home, taking Michael with her.

Michael was repeatedly abused in his grandfather's house.   After two severe physical beatings (one inflicted with a household instrument, the other with a dog leash chain), he was taken into protective police custody on September 29, 1983.   Shortly thereafter, a petition was filed by the Napa County Probation Department under Welfare and Institutions Code section 300, subdivision (d), alleging that the home of Michael was an unfit place by reason of neglect, cruelty and physical abuse.   On October 26, 1983, a jurisdictional hearing was held at the conclusion of which the allegations of the petition were sustained.   Appellant was represented by court-appointed counsel in the proceeding.   On December 29, 1983, a dispositional hearing followed at which appellant was again present with counsel.   The probation report submitted at the dispositional hearing underlined that due to the history of prior abuse, Michael was developmentally delayed and in need of specialized care and that the implementation of a reunification program was necessary before the custody of Michael could be turned over to appellant, his natural father.   Despite appellant's objection denying the need for either special care or a reunification plan, the juvenile court accepted the probation department's recommendation and ordered both Doris and appellant to participate in the reunification plan which, inter alia, included counseling for appellant, continuing special education classes for the minor and both natural parents' cooperation in the reunification effort of the social worker.   Appellant failed to obey the court order.   He not only refused to sign the reunification agreement and to cooperate with the social worker, but also showed continuous lack of interest for the child.2  As a consequence, following a review hearing and a permanent plan hearing, the juvenile court found that all reasonable efforts to prevent or eliminate the need for removal of Michael from his home had been made and failed.   Accordingly, the court ordered appellant be removed from the reunification plan and instructed the county counsel to initiate a section 232 proceeding in order to clear the way for the adoption of the child.

Thereupon, petitioner, the Director of Human Services Delivery System of the Napa County Department of Social Services (respondent) filed a petition in the superior court to declare the minor free from parental custody and control pursuant to section 232, subdivision (a)(1) and (7).   Prior to trial, appellant waived his right to counsel and decided to proceed pro se.  (See discussion, infra.)   Doris, the natural mother, who was represented by court-appointed counsel, declined to oppose the petition and was dismissed from the case.

At trial extensive evidence was introduced to show both sides of the case.   The evidence presented by respondent revealed that despite the progress already made, Michael was still in need of specialized education to help him adjust to his environment.   The testimony given at trial likewise disclosed that Michael was happy with his new parents whom he considered his father and mother, and that his removal from his new home would be extremely traumatic and detrimental to him.   Simultaneously, the evidence was overwhelming that appellant showed no real concern for the child:  he had seen Michael only twice since his birth and also failed to seek contact with him in some other way (i.e., by using the mail or telephone or sending him gifts, etc.).   Moreover, appellant steadfastly refused to obey the court orders relative to the reunification plan which the court deemed essential both for himself and the child.   In rebuttal, appellant purported to show that he had a suitable apartment in Grass Valley where he lived with his father and his 14–year–old son, Leroy, and that he had sufficient disability benefits to support himself and his family.   Although appellant (who took the witness stand on his behalf) admitted that he had only two contacts with Michael since his birth, he claimed that a lack of more frequent visits was due to his being crippled, confined to the wheelchair, and unable to travel.   However, he did not (and could not) explain why he did not contact the child through telephone, mail or other way of telecommunication.   Appellant likewise failed to justify why he refused to participate in physical therapy which could have restored his moving ability (and, thus, his earning capacity) within two to two and one-half years.   Finally, appellant (even at trial) adamantly refused to participate in any reunification program both in the present and the future on the pretense that he was not at fault, and that he did not like to be dictated to by the court.   (See details, infra.)

The trial court found that while the facts were insufficient to sustain the petition by reason of abandonment (§ 232, subd. (a)(1)), the record presented clear and convincing evidence to sustain the allegations under section 232, subdivision (a)(7) 3 inasmuch as (1) Michael has been a dependent of the juvenile court and has been in out-of-home placement for more than a year;  (2) he has established a psychological parent-child relationship with his foster parents;  (3) removal from the new home would be detrimental to the child; 4  and (4) appellant failed to maintain an adequate parental relationship with the minor in the past and the evidence is clear that he will not be able to form an adequate relationship with the child in the future either.   The latter finding was specifically based on the facts that respondent had made reasonable efforts to offer services to appellant to overcome the problems leading to the out-of-home placement and that, despite respondent's repeated efforts, appellant refused to recognize the special needs of the boy arising from the earlier neglect and abuse, and similarly defied court orders mandating his participation in the reunification plan.   Consistent therewith, judgment was entered freeing Michael from the custody and control of both natural parents and appointing respondent as a guardian to facilitate Michael's adoption.

Appellant raises two principal questions on appeal.   He contends that the judgment below should be reversed because there is no substantial evidence in support of the trial court's finding that he was likely to fail in the future to maintain an adequate parental relationship with Michael.   Furthermore, appellant claims that the judgment of the lower court should be set aside because he did not waive his right to counsel knowingly and intelligently as required by section 237.5.   We disagree with appellant on both counts and affirm the judgment.

I. Sufficiency of Evidence

 The legal principles pertaining to the appellate review of the judgment in proceedings to free minors from parental custody and control are well settled.   As stated in Adoption of R.R.R. (1971) 18 Cal.App.3d 973, 983, 96 Cal.Rptr. 308:  “ ‘It is neither the duty nor the right of this court to resolve conflicts in the evidence, pass on the credibility of the witnesses, or determine where the preponderance of the evidence lies.   These are all matters to be decided by the trier of fact in the court below.   The power of any appellate court commences and terminates with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.   All conflicts must be resolved in favor of respondent on appeal and all legitimate and reasonable inferences indulged in to uphold the verdict if possible.   Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.   All evidence favorable to respondent is assumed true and the unfavorable is discarded.   If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.’ ”  (Accord In re Marcos S. (1977) 73 Cal.App.3d 768, 781, 140 Cal.Rptr. 912.)   It is likewise established that while the standard of proof for the trial court is clear and convincing evidence (In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198;  In re Sarah H. (1980) 106 Cal.App.3d 326, 329, fn. 4, 165 Cal.Rptr. 61;  In re Cynthia K. (1977) 75 Cal.App.3d 81, 84–85, 141 Cal.Rptr. 875), the appellate court need only determine whether there was substantial evidence to support the trial court's findings.  (In re Lynna B. (1979) 92 Cal.App.3d 682, 701, 155 Cal.Rptr. 256.)   Finally, it has been repeatedly stated that in proceedings brought for severance of parental-child relationship the primary attention is focused on the welfare of the child, not the unfitness of the parent.   As emphasized in In re D.L.C. (1976) 54 Cal.App.3d 840, 851, 126 Cal.Rptr. 863:  “ ‘․ The interest sought to be protected [under section 232] is that of the welfare of a child.   Its need to be raised with love, emotional security and physical safety is paramount to any right of a neglectful parent to have the custody and physical proximity of its child․’ ”  (Accord In re Lynna B., supra, 92 Cal.App.3d at p. 699, 155 Cal.Rptr. 256.)

 When viewed under these principles, the evidence at bench overwhelmingly supports the termination of parental relationship under section 232, subdivision (a)(7).   First of all, the record is undisputed that Michael was declared a dependent child and placed in a foster home since December 29, 1983 (i.e., well longer than the one year required by the statute).   Second, the evidence irrefutably demonstrates that the child's best interest required leaving him with his foster parents whom he considered his natural parents, and that removal from the foster home would have been highly detrimental to the minor.   Thus, one of Michael's former special education teachers testified that the boy's emotional attachment to the foster parents was very strong;  that he considered them his natural parents and referred to them as “his mom or dad” and that to remove him from their home would be extremely detrimental to Michael.   Another teacher described the relationship between the minor and his foster parents as a healthy and loving one and unequivocally stated that the child's best interest would be best served by leaving Michael with his foster parents.   A social worker testifying at trial confirmed that any adjustment moving Michael outside his current home would be very traumatic and detrimental to him.   Lastly, Mrs. Shah, a state adoption case worker, expressed her opinion as follows:  “[Counsel for respondent:]  Q․  Do you have an opinion as to whether or not it is in his best interest to remain in that home?  [¶] A. Yes, I do have an opinion.  [¶] Q. What is that opinion?  [¶] A. I think it would be Michael['s] best interest to remain where he is for the main reason how much he has progressed from all the emotional trauma that he suffered due to several separations and loss.   He has made a strong attachment and bonding with the foster parents who I would consider they are the psychological parents and at this point I feel that Michael needs continuity and stability to continue his development and progress and if he's removed from the current home, he may suffer tremendous behavior problems and attachment problems which would be very hard to treat.  [¶] Q. Do you feel ma'am that it would be actively to the detriment of Michael if he were to be removed from his present placement and placed in the home of the natural father, [Mr. R.] ?  [¶] A. Yes, I do say so.   Any removal to any home would be very detrimental for Michael.”  (Emphasis added.)

The record also firmly supports the additional finding that appellant failed to maintain an adequate parental relationship with the child in the past and that he was likely to fail to do so in the future.   As pointed out earlier, the evidence is undisputed that appellant had neglected the child in the past.   He saw Michael only twice since his birth and made no efforts to communicate with him or give some sign of his care and attention.   In addition, he rejected the necessary adjustment to become a suitable parent by accepting and implementing the reunification plan which would have insured a smooth transition in their relationship and would have helped the child to adjust to his new environment.

Appellant's contention that the finding of future neglect is not supported by substantial evidence because at the time of the trial he had an acceptable home and adequate income and was willing to receive the child and care for him, is untenable.

 The finding of future neglect may be based on a likelihood that a parent will fail to provide an adequate environment for the child and to prove such possibility the past treatment of the minor may be taken into consideration.   As stated in In re Norma M. (1978) 77 Cal.App.3d 110, 116, 143 Cal.Rptr. 412:  “The statute requires a finding that the parents have failed and are likely to fail in the future to provide such a home and family relationship.   Of course, no one can predict the future with absolute certainty.   The trial judge is called upon, in these cases, to simply determine the likelihood of whether the parent will in the future make a marked change in his or her behavior pattern in relation to the child.   Unquestionably the parents' ‘track record’ prior to the hearing is the best indication of such a likelihood.” (Accord In re Lynna B., supra, 92 Cal.App.3d at p. 700, 155 Cal.Rptr. 256, original emphasis.)

Moreover, there was concrete evidence indicating that appellant refused to recognize the special need of the child and the necessity of the reunification plan not only in the past, but also in the future.   Thus, the record reflects that when asked at trial whether he would obey prospective reunification or reedification orders, appellant gave a definite “no” answer.5

 Appellant's contention that no special education for the child was needed and that all the problems would be solved if Michael was removed from his mother's house and put into his care, requires only brief reply.   The record affirmatively shows that all the experts involved in the case unanimously concluded that Michael needed special attention and care if the impact of past mistreatment and abuse was to be eliminated.6

II. Waiver of Right to Counsel

As mentioned earlier, appellant decided to waive his statutory right to counsel under section 237.5 7 and to proceed pro se in the parental termination action.   Following a formal pretrial hearing and admonishments, the trial court acceded to appellant's request for self-representation.   Appellant now alleges the trial court committed prejudicial error by failing to make adequate inquiry into whether his right to counsel was knowingly and intelligently being waived.   He claims that since an action involving severance of the parental-child relationship effects fundamental rights (In re David B. (1970) 91 Cal.App.3d 184, 192, 154 Cal.Rptr. 63;  In re T.M.R. (1974) 41 Cal.App.3d 694, 703, 116 Cal.Rptr. 292) and is, in essence, accusatory in nature (In re Richard E. (1978) 21 Cal.3d 349, 354, 146 Cal.Rptr. 604, 579 P.2d 495;  In re Rodriguez (1973) 34 Cal.App.3d 510, 514–515, 110 Cal.Rptr. 56;  Adoption of Hinman (1971) 17 Cal.App.3d 211, 216, 94 Cal.Rptr. 487), the prerequisites for waiver of counsel must be the same as in criminal proceedings, i.e., the party must be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open (Faretta v. California (1975) 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562;  People v. McKenzie (1983) 34 Cal.3d 616, 628, 194 Cal.Rptr. 462, 668 P.2d 769;  People v. Lopez (1977) 71 Cal.App.3d 568, 571, 138 Cal.Rptr. 36).   Appellant insists that the trial court's inadequate inquiry precluded him from effectively waiving his right to counsel and that the resulting procedural defect compels the vacation of judgment as a matter of law.  (People v. Spencer (1984) 153 Cal.App.3d 931, 942, 200 Cal.Rptr. 693;  People v. Lopez, supra, 71 Cal.App.3d at p. 571, 138 Cal.Rptr. 36.)   We disagree.

 While the issue raised by appellant is a novel one inasmuch as there is no direct California authority explaining what constitutes a knowing and intelligent waiver under section 237.5, analogous cases, legal rationale and policy considerations all lead to the conclusion that parental termination actions are civil in nature and that the stringent requirements prescribed for criminal cases are not required to waive counsel under section 237.5.

To begin with, the right to effective assistance of counsel and the waiver of counsel which is corollary thereto are primarily predicated upon the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution.   However, it bears emphasis that both federal and state Constitutions explicitly provide that the provisions relative to assistance of counsel apply only to criminal prosecutions.8  It is true that the right to counsel may also be premised on the due process clause of the Fourteenth Amendment.  (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978, 164 Cal.Rptr. 118.)   However, the United States Supreme Court held that the Constitution does not require the appointment of counsel in every parental termination case, and that whether the due process clause of the Fourteenth Amendment calls for such appointment in a particular instance, is a question of fact for the trial court which must be determined in light of all the circumstances of the case.  (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31–32, 101 S.Ct. 2153, 2161–2162, 68 L.Ed.2d 640;  see also 6 Witkin, Summary of Cal.Law (Supp.1984) Parent and Child, § 113A, p. 252.)   The apparent rationale of this holding is that as a matter of general rule, an indigent litigant has a right to appointed counsel only if his or her personal freedom or physical liberty is at stake.  (Lassiter v. Department of Social Services, supra, at p. 27, 101 S.Ct. at p. 2159.)   In the case at bench appellant does not contend that he was entitled to appointed counsel on the ground of due process.   Rather, he asserts his right to counsel under section 237.5.   Since the strict requirements for waiver of counsel have been established in order to safeguard the constitutional right of a defendant, it is reasonable to conclude that this lesser right premised on statute may be waived without employing the full panoply of protective measures required for the preservation of constitutional rights.

Furthermore, there is considerable case authority to the effect that the delinquency proceedings and the parental termination actions brought under section 232 are fundamentally civil in nature and, thus, fall outside the scope of the right to counsel provisions of the Constitution.   This is so because such proceedings do not threaten the parent's liberty interest from unjust confinement, and because the purpose of the initiation of such actions is to protect the welfare of the child rather than to punish the parent.   The cases especially in point are In re Angelia P., supra, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198 and In re Sherman M. (1974) 39 Cal.App.3d 40, 113 Cal.Rptr. 847.   In In re Angelia P., appellants argued that since a section 232 proceeding involved a significant deprivation of liberty, due process required proof beyond a reasonable doubt just as in criminal cases;  the California Supreme Court rejected this contention and held that only proof of clear and convincing evidence was needed (i.e., evidence required in civil cases).   Even more significantly, the Supreme Court pointed out that a section 232 proceeding does not entail the liberty interest of the parent which would call for the application of the rigid criminal standard by stating:  “In criminal proceedings, where the conflicting interests involve an individual's freedom and the state's enforcement of its criminal laws, courts have traditionally been particularly sensitive to the citizen's liberty․  Moreover, we have not refused to extend the ‘beyond reasonable doubt’ test to those noncriminal situations in which a personal freedom similarly collides with the state's interest in confinement for the protection of both the public and the individual.  [Citation.]  Such a liberty interest is not herein presented.”  (In re Angelia P., supra, 28 Cal.3d at p. 918, 171 Cal.Rptr. 637, 623 P.2d 198, emphasis added.)   In In re Sherman M., supra, 39 Cal.App.3d 40, 113 Cal.Rptr. 847, the court also dealt with the nature of the parental termination suit and concluded that the proceeding brought under section 232 is a civil action because the statute itself is civil, the parent is not a criminal defendant and “The purpose of the statute is to protect children, not to punish a criminal offender․”  (At p. 44, 113 Cal.Rptr. 847.)

 Based upon the foregoing authorities, we conclude that the action at bench is a civil proceeding to which the criminal law requirements for waiver of counsel are not inapplicable.   Therefore, the validity of waiver under section 237.5 must be determined by general civil law standards.   By general definition “Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences.”  (In re Marriage of Moore (1980) 113 Cal.App.3d 22, 27, 169 Cal.Rptr. 619;  see also Roberts v. Superior Court (1973) 9 Cal.3d 330, 343, 107 Cal.Rptr. 309, 508 P.2d 309.)   Judged by the above standard, appellant's waiver of right to counsel must be held valid.   The record reveals that at a pretrial hearing the court appointed an attorney for Doris and inquired if appellant, too, wished to have a court-appointed attorney.   Appellant, who had been represented by appointed counsel throughout the previous proceedings leading to the present termination action, replied in the negative and expressed his desire to represent himself.   Thereupon, the trial court further explained to him the nature and the potentially serious consequences of the action (i.e., that appellant could lose Michael and that the child could be adopted by third persons).   Appellant nonetheless stood firm and insisted on proceeding pro. per. in the matter.9  This record, of course, betrays beyond any doubt that appellant waived his right to counsel voluntarily and with sufficient awareness of the likely consequences of his act.   As a result, that waiver must be sustained on appeal.  (Matter of Baby Boy Myers (1982) 58 Or.App. 622, 650 P.2d 113, 116.)

In light of our conclusion it need not be decided whether appellant's claim should be rejected on the additional ground that, considering the evidence as a whole (see discussion, supra ), the error should be deemed harmless even if the validity of the waiver should be adjudicated according to the standard applied in criminal cases.  (People v. Sharp (1972) 7 Cal.3d 448, 461–463, 103 Cal.Rptr. 233, 499 P.2d 489 [disapproved on other grounds in Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562];  In re Justin L. (1987) 188 Cal.App.3d 1068, 1078, 233 Cal.Rptr. 632.)

The judgment is affirmed.

I respectfully dissent.

In this case of first impression we are required to give meaning to the statutory requirement that in proceedings to terminate the relationship of parent and child an indigent parent must be afforded counsel “unless such representation is knowingly and intelligently waived.”  (Civ.Code, § 237.5, subd. (b).) 1

The majority is quite right:  this is not a criminal proceeding.   The government does not seek to brand appellant as a criminal;  it desires only to mark him forever as an unfit parent without any rights as the father of the child in question.   Nor does the government seek the penalties that attach to criminal proceedings—loss of liberty by imprisonment or a fine.   Instead what is sought is a final, irrevocable severance and legal erasure of the relationship between appellant and his son Michael so that Michael can be placed for adoption.

Undeniably and regrettably the majority is also correct that under the current state of constitutional jurisprudence, there is no obligation to provide counsel to parents in such proceedings.   The fact that the Legislature has seen fit to do so by statute is, as the majority correctly explains, a “lesser right premised on statute” (majority opn., ante, p. 821) and therefore the rules attending the manner of waiving such a right are not demanded by either the United States (6th and 14th Amends.) or the California Constitutions (art. I, § 15).

As scholarly correct as the answers the majority gives are, they are not responsive to appellant's position.   He does not claim that there is a constitutional mandate to give a certain meaning to the statute.   He claims only that as a matter of simple statutory construction the words “knowing and intelligent waiver” should be construed to mean the same as they do in the criminal law.   I agree.

What we can and must take notice of is the unique aspect of the statute:  the Legislature wrapped the right to free counsel in exactly the same protective language employed by the United States Supreme Court in Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, to guarantee the right to counsel in criminal proceedings.   That language—“․ unless such representation is knowingly and intelligently waived” (§ 237.5, subd. (b)—does not appear in any other statute in California, so far as I am aware.

I rehearse the obvious to point out that the high court recognized in Faretta v. California that when an accused elects to conduct his own defense he “relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.”  (Id., 422 U.S. at p. 835, 95 S.Ct. at p. 2541.)   For this reason the Supreme Court held that a defendant who chooses to proceed pro se may be allowed to do so only if he “ ‘knowingly and intelligently’ [chooses to] forgo those relinquished benefits.”  (Ibid.)  What that means is that an accused wishing to be tried without counsel “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”  (Ibid., emphasis added.)

Unless we are to believe that legislative draftpersonship in California has become the task of the occasional doodler, the language “knowingly and intelligently waived” must mean something more than what is required to waive normal civil benefits.   The difference between what is required to substantiate a waiver under the traditional test enunciated in the majority opinion and what the Faretta language demands is quite simple and easy to apply:  the person waiving counsel “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”   (Faretta v. California, supra, at p. 835, 95 S.Ct. at p. 2541.)   Because that did not happen here—not one of the dangers of self-representation was even mentioned—I would allow appellant a new trial in which he is either represented by counsel or makes the choice to represent himself “ ‘with eyes open.’ ”

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Civil Code.

2.   The progress report submitted for the April 2, 1984, reunification review hearing read in pertinent part as follows:  “At the dispositional hearing of December 29, 1983, the court ordered that this agency work independently with both natural parents in order to reunify the minor with one of the parents.   At that hearing, [Mr. R.] denied that the minor has special needs and would not follow through with the required services for the boy.   Conversations with [Mr. R.] continue to demonstrate his denial of these needs.   In addition, [Mr. R.] has not cooperated with this social worker in signing the Case Plan/Service Agreement so that we can attempt a reunification.   It is, therefore, the opinion of the undersigned that a reunification plan not be followed with [Mr. R.]   He has not visited with the minor, has had two contacts since the boy's birth, and has not really demonstrated any concerns over the child.”The followup report submitted for the October 3, 1984 permanent plan hearing likewise confirmed that:  “The reunification plan is no longer feasible for either parent.  [Mr. R.] has continuously denied that the minor has special needs and would not follow through with the required services for the boy.  [Mr. R.] has not cooperated with this social worker in signing the Case Plan/Services Agreement so that a reunification could have been attempted.   He has not visited with the minor, has not made any inquiries as to the well-being of his son, and has not demonstrated any concerns over the child.”

3.   Section 232 provides in relevant part:  “(a) An action may be brought for the purpose of having any child under the age of 18 years declared free from the custody and control of either or both of his or her parents when the child comes within any of the following descriptions:  ․ [¶] (7) ․ Who has been in out-of-home placement under the supervision of the juvenile court, the county welfare department, or other public or private licensed child-placing agency for a one-year period, if the court finds that return of the child to the child's parent or parents would be detrimental to the child and that the parent or parents have failed during that period, and are likely to fail in the future, to maintain an adequate parental relationship with the child, which includes providing both a home and care and control for the child․”

4.   As the court stated:  “․ [Michael] has established a psychological parent-child relationship with his foster parents;  removal from them would, in and of itself, be detrimental to him.   He has made remarkable progress in their care from the effects of neglect and abuse.   To deprive him of the benefits of the continuity of this relationship would be a severe detriment․  [¶] It would be detrimental to the boy simply to be removed from his foster home;  and it would be further detrimental to return him to his father's custody because there is substantial doubt that his special needs would be tended to.   His best interests will be served by continued placement with the foster parents.”

5.   The pertinent part of the record reads as follows:  “Mr. Guadagni [Counsel for the minor]:  If I understood your testimony, [Mr. R.], you didn't feel you needed to do all the things in the reedification plan ?  [¶] [Mr. R.]:  That's right.  [¶] Mr. Guadagni:  Is that still true?   Do you still feel you don't need to do all those things ?  [¶] [Mr. R.]:  That's true.  [¶] Mr. Guadagni:  Is the basis for that attitude that you don't need to do that, is it because you feel you were not at fault for the abuse?  [¶] [Mr. R.]:  Well, that is true, but also that I—orders I don't take too well.   You know, I mean, in other words, I can understand an order but I mean if I don't follow it, that's fine, my own choice.   I don't like being dictated to.  [¶] Mr. Guadagni:  And that's still your feeling?  [¶] [Mr. R.]:  That's still my feelings.   I wouldn't be here if it wasn't.  [¶] Mr. Guadagni:  Okay.   So if orders are made, if orders were to be made prospectively [sic] in the future you may understand them but you may not agree to them and if you didn't, you wouldn't follow them ?  [¶] [Mr. R.]:  That's true.  [¶] Mr. Guadagni:  And if orders were made as to the reedification similar along with the lines of the original reedification plan, would you still—at this time, still be opposed to following these orders ?  [¶] [Mr. R.]:  Yes, I would.”  (Emphasis added.)

6.   For example, Mr. Nigro, a social worker of the county, testified as follows:  “[Counsel for respondent:] Q. And I'll ask you whether in that conversation you discussed a question with him of whether or not Michael needed any specialized attention or training?  [¶] A.   Yes, we did.  [¶] Q.   And what was [Mr. R.'s] response to that question or inquiry on your part?  [¶] A.   At that particular time, his response was that he felt the minor did not have any special needs nor was he willing to participate in any services provided by our Department or by anybody else.  [¶] Q.   And at that time, had you, in studying the case, made a determination whether Michael did, in fact, need to have any specialized attention ?  [¶] A.   It was not just my opinion, but also my professional—other professional people felt that, yes, he did have special needs.”  (Emphasis added.)

7.   Section 237.5 provides in relevant part:  “At the beginning of the proceeding on a petition filed pursuant to this chapter counsel shall be appointed as follows:  ․ [¶] (b) If a parent appears without counsel and is unable to afford counsel, the court shall appoint counsel for the parent, unless such representation is knowingly and intelligently waived.   The same counsel shall not be appointed to represent both the minor and his or her parent.”  (Emphasis added.)

8.   The Sixth Amendment provides in pertinent part that “In all criminal prosecutions, the accused shall enjoy the right ․ to have the assistance of counsel for his defense.”  (Emphasis added.)California Constitution, article I, section 15, likewise underlines that “The defendant in a criminal cause has the right ․ to have the assistance of counsel for the defendant's defense․” (Emphasis added.)

9.   The pertinent parts of the record read as follows:  “THE COURT:  ․ All right.   Let me appoint the firm of—I'll appoint Mr. Wagner's firm to represent Mrs. Ogden.  [¶] Sir, do you wish to have an attorney represent you in this matter?  [¶] [MR. R.]:  I'm going to represent myself.  [¶] THE COURT:  Do you understand that in a—do you understand the nature of this proceeding, what this proceeding is all about?  [¶] [MR. R.]:  Yes, I do.  [¶] THE COURT:  If the petition is sustained, meaning that if the allegations are upheld—[¶] [MR. R.]:  Yes.  [¶] THE COURT:—then the Court would make an order that the child is free from your parental control as well as your wife's parental control.   I assume it's possible that the Court could make a determination that the child would be free from one parent, but not the other, or from both parents, or from neither.   That's the possibilities.  [¶] [MR. R.]:  Yes.  [¶] THE COURT:  Now, you understand the law and then if the Court found that the child was free from parental control then the child would be free to be adopted by some other person.   Do you understand that that's the essence of the proceedings?  [¶] [MR. R.]:  Yes, I do․  [¶] THE COURT:  Now, my question to you, sir, is do you wish to have an attorney in this proceeding?  [¶] [MR. R.]:  No, I don't.  [¶] THE COURT:  You understand that if you don't have funds to have an attorney on these proceedings of abandonment the Court will appoint one for you much as I've appointed one for your wife?   Do you understand that?  [¶] [MR. R.]:  I understand that, yes, I do.  [¶] THE COURT:  All right.   And is it your decision then not to have an attorney?  [¶] [MR. R.]:  To represent myself, yes, right.  [¶] THE COURT:  On this matter?  [¶] [MR. R.]:  Right.  [¶] THE COURT:  All right.   Do you have any question about your rights to have an attorney, sir?  [¶] [MR. R.]:  No, I don't.”

1.   All statutory references are to the Civil Code.

ANDERSON, Presiding Justice.

SABRAW, J., concurs.