IN RE: SEBASTIAN C. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Roberto C. (Father) is the father of Sebastian C., age 5, determined to be under dependency jurisdiction due to domestic violence between Father and Sebastian's mother, Edith B. (Mother).¹  Father contends the juvenile court erred in denying his request to represent himself at the jurisdictional/dispositional hearing.   We conclude that the court had sufficient ground to deny Father's last-minute request for self-representation, and that to the extent any error occurred, it was harmless.

FACTUAL AND PROCEDURAL BACKGROUND

A. Detention and Petition

On April 23, 2010, the Department of Children and Family Services (DCFS) received a report that Father had engaged in the following acts of domestic violence:  (1) on April 13, during an argument, Father choked Mother and, when she attempted to leave with Angel in her car, jumped on the hood and kicked in the windshield;  (2) on April 14, during another argument, Father threatened to kill Mother and Sebastian if Mother left him.   The person reporting stated that there had been prior acts of domestic violence and that Mother was afraid to leave or file a police report.

The caseworker interviewed Mother.   Mother confirmed that on April 13, after an argument during which Father choked her, he kicked in the windshield of her car.   She stated that with the assistance of police officers and a neighbor, she moved out that night.²  The next day, after Father apologized and offered to pay for the windshield, Mother moved back in.   Later that evening, she went out with a friend.   Father “freaked out” and when Mother returned, threatened to kill her if she left him.   This altercation took place inside his vehicle.   When Mother tried to get out, Father grabbed her arm, leaving bruises on it.³  Mother also reported a prior incident of abuse.   Mother stated that two or three months earlier, shortly before the couple began living together, Father went to Mother's home and physically forced her into his car.   He then drove around “erratically,” threatening to kill her if she left him.   The caseworker also interviewed Sebastian.   He confirmed hearing that Father had jumped on the car and smashed its windshield and that Father had threatened to kill him (Sebastian), Mother and Angel.   He did not claim to be present when these incidents occurred.   Sebastian said he did not feel safe with Father.

DCFS detained Angel and Sebastian and filed a petition under section 300 of the Welfare and Institutions Code.⁴ The petition alleged that Father “placed [Angel] in a detrimental and endangering situation” by “kick[ing] in the windshield of a vehicle in which [Mother] and [Angel] were present” and that Father and Mother had a history of engaging in violent altercations in the presence of the children, specifically:  “[o]n 04/14/2010, [Father] grabbed [Mother] by her arm, inflicting bruises to [Mother's] arm”;  “[o]n prior occasions, [Father] threatened to kill [Mother] and the children”;  [o]n 04/13/2010, [Father] grabbed [Mother] by the neck and choked [Mother]”;  “[Father] kicked in the windshield of a vehicle in which [Mother] and [Angel] were present”;  “[o]n a prior occasion, [Father] forced [Mother] into a vehicle.”   The petition alleged that jurisdiction was appropriate under section 300, subdivision (a) (serious physical harm), subdivision (b) (failure to protect) and subdivision (j) (abuse of sibling).

On April 27, Mother filed an application for a temporary restraining order stating:  “On 4-13-10[,] [Father] kicked in [the] windshield on my car.   Angel was in the car.   On 4-14-10[,] [Father] grabbed me and I did have a bruise on my arm.   He threatened to kill me and himself.” ⁵

B. Jurisdictional/Dispositional Report

The caseworker interviewed the family again in May 2010, prior to the jurisdictional/dispositional hearing.   Sebastian recalled an occasion when Father hit Mother in the stomach when the three of them were in Father's truck.   He stated he was afraid of Father.   Mother reiterated that on April 13, Father had tried to stop her from leaving by kicking in the windshield of her car.   She stated that Father had not choked her on that date, but on a prior date.   She said that although Father had threatened to kill her, she was not afraid of him and that “[h]e never really did anything to make [her] believe he would hurt [her].”   Mother said that there was never “really” a history of violence until they moved in together.   She said that the children were present on only one occasion when she and Father were fighting.   On that occasion, which occurred while Father was driving, he pushed Mother and threatened to crash the vehicle into a wall.

C. Jurisdictional/Dispositional Hearing

At the April 27 detention hearing, the court set a May 25 date for the trial of the jurisdictional and dispositional issues.   On May 25, Father requested, through counsel, that the matter be put over for a contested hearing.⁶  The court asked whether there would be witnesses called.   Counsel for DCFS and the children said there would be none.   Counsel for Father stated “possibly Mother.”   The court set June 24 for the contest.

On June 24, counsel for DCFS submitted its exhibits-the caseworker's reports-and announced there would be no witnesses called.   Counsel for Father stated that she would be presenting no evidence.   Father asked for a Marsden ⁷ hearing to consider appointment of a new attorney, but before that could occur, Father requested that he be permitted to represent himself.   The court had Father fill out the forms required for self-representation by a parent.   In them, Father stated he did not know what had to be proven for a child to be found a dependent under section 300 and did not know or understand the legal defenses to the allegations of the petition.   Father further stated he would need a continuance to undertake legal research and funds to obtain a private investigator and expert witness.   Based on its “discretion to deny a request for self-representation, when it is reasonably probable that granting the request would impair the child's right to a permanent resolution of custody status” and noting that the governing statutes require adjudication and disposition to take place within 60 days of detention, the court denied the self-representation request.⁸

The court then held a Marsden hearing.   At the hearing, Father contended that he had asked his attorney to contact certain witnesses.   He did not deny that the witnesses had been contacted, but said that counsel's investigator “cut[ ] them off” without “let[ting] them finish their statements.”   Father wanted the witnesses subpoenaed, as well as the officers who had prepared the April 13 and 14 reports.   Father's counsel stated that her investigator had spoken with Father's witnesses, but that she had concluded none had relevant information.   Nor, after due consideration, did she deem it necessary to subpoena the officers whose reports were in the file.   The court denied the request for a new attorney.   However, the court permitted counsel to re-open to cross-examine Mother.

Called to testify and questioned by Father's counsel, Mother denied that Father had choked her on April 13 or 14.   She said that many things stated in the police reports and caseworker's reports were not true representations of what she had told the interviewers.   Mother further testified that these incidents-presumably referring to the incidents of April 13 and 14-were the first time anything similar had happened.   She denied telling members of Father's family that she had devised a plan to tell lies about Father in order to put him in jail for life.   When questioned by DCFS's attorney, Mother conceded that there had been one prior incident of domestic violence, when Father forced her into his vehicle and threatened to smash it into a wall.   She further testified that before they began living together, he choked her.   In addition, she said that in an incident which occurred a day or two after Father broke the windshield, he grabbed her and left a bruise on her arm.

After counsel for DCFS examined Mother, counsel for Father stated she had no follow-up questions.   At Father's request, the court allowed him to ask questions of his own.   Father asked if Mother had stated in a conversation with Father, recorded during his incarceration, that she could not tell the truth because if she did, the children would be kept from her.   She denied making such a statement.   Father asked if, while he was on the hood of her car, she drove forward, causing him to lose his balance.   She said she had driven forward, but that her recollection was that he kicked in the windshield before she started to drive.   In response to further questions from Father, she explained that he had never literally threatened her life, but had driven recklessly with her in the car and threatened to crash it, which she interpreted as a threat.   She stated that the reports were wrong in suggesting otherwise, and that she had tried to clarify.

After examining Mother, Father took the stand against the advice of his counsel, who declined to ask him any questions.   Father made a statement in which he said he had never attacked Mother or threatened her or the children.   He stated that Mother had once attacked him, ripping his shirt and scratching his arm, and that there were witnesses to that attack as was stated “in [his] Marsden hearing [about] ineffective counsel.”   Cross-examined by counsel for DCFS, Father admitting getting on the hood of Mother's car, but stated that he did so because she was intoxicated and he was attempting to stop her from driving away with Angel.   He denied kicking the windshield intentionally, claiming that he had lost his balance.   He admitted being arrested multiple times in the past, but claimed he did not remember why.

The court found true the allegation that Father “placed [Angel] in a detrimental and endangering situation” by “kick[ing] in the windshield of a vehicle in which [Mother] and [Angel] were present.”   The court found true the allegation that Father and Mother had a history of engaging in violent altercations in the presence of the children, and that Father had kicked in the windshield of a vehicle in which Mother and Angel were present and, on a prior occasion, forced Mother into a vehicle.   The court struck the allegations that Father grabbed Mother by her arm and bruised her;  that he threatened to kill Mother and the children;  and that he grabbed Mother by the neck and choked her.   The court found jurisdiction appropriate under section 300, subdivisions (a) and (b).  The court ordered the following reunification services for Father:  a batterer's intervention program and parent education.   Father appealed.

DISCUSSION

Father contends that he had a right to represent himself at the jurisdictional/dispositional hearing and that the court erred in refusing to grant his request for self-representation.   Numerous cases hold that parents whose children are subject to dependency proceedings have the right to waive counsel and represent themselves.  (See, e.g., In re A.M. (2008) 164 Cal.App.4th 914, 923;  In re Angel W. (2001) 93 Cal.App.4th 1074, 1083;  In re Justin L. (1987) 188 Cal.App.3d 1068, 1072-1076.)   The right derives not from the Constitution, but from judicial interpretation of section 317, which provides that the court shall appoint counsel for a parent when it appears that the parent “is presently financially unable to afford and cannot for that reason employ counsel,” unless “the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel ․“ (§ 317, subd. (b);  see Janet O. v. Superior Court (1996) 42 Cal.App.4th 1058, 1064 [“purpose of [section 317]” is to “provide counsel only to those parents who desire representation and are financially unable to afford counsel”].)

“A parent may waive counsel at any point.”  (In re Angel W., supra, 93 Cal.App.4th at p. 1083.)   However, “a parent's statutory rights, including the right to self-representation, must always be weighed against the child's right to a prompt resolution of the dependency proceeding.”  (In re A.M., supra, 164 Cal.App.4th at p. 925, italics omitted.)  “Thus, the juvenile court has discretion to deny the request for self-representation when it is reasonably probable that granting the request would impair the child's right to a prompt resolution of custody status or unduly disrupt the proceedings.”  (Id. at pp. 925-926, italics omitted.)   The factors the court should consider when the request is made in the midst of a hearing are similar to those reviewed when a criminal defendant requests self-representation midtrial:  “ ‘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. 926, italics omitted, quoting People v. Windham (1977) 19 Cal.3d 121, 128-129.)  “Because a parent's right to self-representation in a juvenile dependency proceeding is statutory, rather than constitutional, our review of the assertion of the right to self-representation is evaluated under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836.”  (In re A.M., supra, at p. 928;  accord, In re Angel W., supra, 93 Cal.App.4th at p. 1082;  In re Justin L., supra, 188 Cal.App.3d at p. 1077.)

Here, the court found that permitting Father to represent himself would impair or delay the children's right to prompt resolution of their custody status.   The court's finding was supported.   Father stated he could not represent himself unless the court granted a continuance.   But the matter had already been put over to a date only two days before the statutory 60-day deadline.   (See § 352, subd. (b) [forbidding continuance of dispositional hearing to a date more than 60 days after detention hearing “unless the court finds that there are exceptional circumstances requiring such a continuance”];  cf. § 352, subd. (a) [“[N]o continuance shall be granted that is contrary to the interest of the minor.   In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.”];  In re Karla C. (2003) 113 Cal.App.4th 166, 180 [continuances in dependency proceedings are discouraged;  court's ruling denying a continuance is reviewed for abuse of discretion and will not be overturned unless the decision is arbitrary, capricious or patently absurd, resulting in a manifest miscarriage of justice].) ⁹  Moreover, it is not clear why Father did not make the request earlier.   In his brief, Father states that he made the request as soon as he realized his counsel was not going to call any witnesses.   That is incorrect.   Father was present on May 25, when the jurisdictional/dispositional hearing was put over to June 24 for contest.   At that time, his counsel stated she did not contemplate calling any witnesses other than “possibly” Mother.   Father said nothing at that time.

Moreover, assuming arguendo that denial of the request was error, it was harmless under the Watson standard.   Our review of the record persuades us it was not reasonably probable that a result more favorable to Father would have been achieved had he been permitted to represent himself.   The court permitted Father to cross-examine Mother and to make his own statement concerning the facts.   The primary factual finding made by the court-that Father committed domestic violence by jumping on the hood of Mother's car and kicking in the windshield when she tried to drive away-was supported by overwhelming evidence.   The incident was observed by a third party, who reported it to DCFS and the police.   Mother consistently stated that it had occurred in every report she made to the caseworker, to police officers, and in her testimony at the hearing.   Father himself confirmed that the windshield incident occurred, although he tried to place a more innocent spin on the events.   Although Father stated there were witnesses he wished to subpoena, he did not suggest that any of them would cast doubt on the windshield incident or on the other incident found true by the court-that on a separate occasion and in the presence of the children, Father physically forced Mother into his car.¹⁰

Pointing out that Mother frequently changed her story and contradicted herself, Father contends his strategy would have been to show that Mother had become angry at him for spending time with his wife and had devised a plan to get him into trouble.   Father did not need to represent himself or change trial strategy to prove that Mother was not entirely credible.   The discrepancies in her version of events were well documented.   In addition, she testified at the hearing that some of the statements attributed to her in the reports were not true.   As a result, the court struck the uncorroborated allegations that Father bruised her arm, choked her, and threatened to kill her and the children.

Father contends that had he represented himself, he would have called Sebastian and cross-examined him concerning his reported statement that Father had hit Mother in the stomach when they were all in Father's truck.   Father contends that the court relied on this statement in making its jurisdictional findings.   After making factual findings as indicated, the court referenced Sebastian's statements that Father had hit Mother and that he was afraid of Father as further support for its findings that jurisdiction over the boy was appropriate under section 300, subdivisions (a) and (b).  It made no finding that Father hit Mother.   Had Sebastian been called and retracted his statements to the caseworker, there is no reasonable probability that the court would have changed its jurisdictional findings.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Sebastian's mother, Edith B. (Mother), is also the mother of Angel O., age 3. Neither Mother, nor Angel's father, Luis O., are parties to this appeal..  FN1. Sebastian's mother, Edith B. (Mother), is also the mother of Angel O., age 3. Neither Mother, nor Angel's father, Luis O., are parties to this appeal.

FN2. The caseworker also obtained a copy of a police report of the incident.   According to the report, Mother and a third party witness both stated that Father had jumped on the hood of Mother's vehicle and kicked in the windshield..  FN2. The caseworker also obtained a copy of a police report of the incident.   According to the report, Mother and a third party witness both stated that Father had jumped on the hood of Mother's vehicle and kicked in the windshield.

FN3. According to the police report for April 14, officers were called by Mother's sister, who had received text messages from Mother that she and Sebastian were being held against their will by Father.   Officers went to the location and met with Mother.   Mother reported there had been “several” incidents of domestic abuse in the past, but that she had not reported them due to “fear of retaliation.”   She reported that Father had choked her a day earlier and then left with Sebastian.   On the 14th, Mother met with Father to pick up the child.   She got into his vehicle because “she feared [Father] would harm her or her child.”   Father drove her back to their residence and stated:  “If you ever leave me[,] I'll kill you!   You don't know what I'm capable of.”.  FN3. According to the police report for April 14, officers were called by Mother's sister, who had received text messages from Mother that she and Sebastian were being held against their will by Father.   Officers went to the location and met with Mother.   Mother reported there had been “several” incidents of domestic abuse in the past, but that she had not reported them due to “fear of retaliation.”   She reported that Father had choked her a day earlier and then left with Sebastian.   On the 14th, Mother met with Father to pick up the child.   She got into his vehicle because “she feared [Father] would harm her or her child.”   Father drove her back to their residence and stated:  “If you ever leave me[,] I'll kill you!   You don't know what I'm capable of.”

FN4. After a brief period in a foster home, the court, over the objection of DCFS, placed the boys back with Mother, on condition that she reside with her mother, that she obtain appropriate services for a victim of domestic violence, and that she take steps such as calling the police to prevent Father from being around her or the boys.Statutory references are to the Welfare and Institutions Code..  FN4. After a brief period in a foster home, the court, over the objection of DCFS, placed the boys back with Mother, on condition that she reside with her mother, that she obtain appropriate services for a victim of domestic violence, and that she take steps such as calling the police to prevent Father from being around her or the boys.Statutory references are to the Welfare and Institutions Code.

FN5. The court granted the TRO and later, a permanent injunction..  FN5. The court granted the TRO and later, a permanent injunction.

FN6. Mother and DCFS had entered into an agreement resolving the jurisdictional and dispositional issues as to her..  FN6. Mother and DCFS had entered into an agreement resolving the jurisdictional and dispositional issues as to her.

FN7. People v. Marsden (1970) 2 Cal.3d 118 (Marsden )..  FN7. People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).

FN8. The date on which Father sought to represent himself was June 24, 58 days after the April 27 detention hearing.   At no time did Father suggest he could be ready to proceed in 48 hours..  FN8. The date on which Father sought to represent himself was June 24, 58 days after the April 27 detention hearing.   At no time did Father suggest he could be ready to proceed in 48 hours.

FN9. Father contends there was no need for a prompt hearing because the children were back in Mother's custody.   The family's right to a speedy resolution of dependency proceedings is not dependent on the children's custody status.   Moreover, the custody order, made over the objection of DCFS, was conditional and could have been retracted at any time had Mother not continued to meet the conditions imposed by the court..  FN9. Father contends there was no need for a prompt hearing because the children were back in Mother's custody.   The family's right to a speedy resolution of dependency proceedings is not dependent on the children's custody status.   Moreover, the custody order, made over the objection of DCFS, was conditional and could have been retracted at any time had Mother not continued to meet the conditions imposed by the court.

FN10. Although it is not entirely clear from the record, it appears from statements made by Father that the witnesses he wished to subpoena had knowledge that Mother had inflicted physical abuse on him.   Presentation of such evidence would not have resulted in a more favorable jurisdictional finding.   The record does reflect that after contacting the witnesses Father identified, Father's counsel concluded their testimony was irrelevant, and that the court gave credence to counsel's statement in denying Father's Marsden request..  FN10. Although it is not entirely clear from the record, it appears from statements made by Father that the witnesses he wished to subpoena had knowledge that Mother had inflicted physical abuse on him.   Presentation of such evidence would not have resulted in a more favorable jurisdictional finding.   The record does reflect that after contacting the witnesses Father identified, Father's counsel concluded their testimony was irrelevant, and that the court gave credence to counsel's statement in denying Father's Marsden request.

WILLHITE, Acting P. J. SUZUKAWA, J.