Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego CountySuper. Ct. No. J509547B, Cynthia Bashant, Judge. Affirmed.
Juan Z. appeals a finding and order of the juvenile court at a post-permanency review hearing under Welfare and Institutions Code section 366.3. We affirm the order.
BENKE, Acting P. J.
FACTUAL AND PROCEDURAL BACKGROUND
Juan Z. and Christina M. are the parents of Fabian Z., born December 1995. Fabian was a dependent of the juvenile court from 1998 to 2000, when he was returned to Christina's custody, and again from 2002 to the present. Juan was in prison throughout the proceedings, where he remains. Juan has consistently opposed any decision by the court that might lead to Fabian's return to Christina's care.
The early history of this case is set forth in our unpublished opinions issued upon Juan's appeals from proceedings in the two dependency cases. (In re Fabian Z. (Sept. 15, 2003, D041661) [nonpub. opn.]; In re Fabian Z. (Sept. 14, 2000, D035109) [nonpub. opn.]; In re Fabian Z. (May 3, 2000, D033887) [nonpub. opn.]; In re Fabian Z. (Feb. 3, 1999, D031026) [nonpub. opn.].) In those opinions, which are part of the record in this case, we noted Juan's penchant for delaying the proceedings and misbehaving in court, making the "disingenuous" claim he had to "struggle to represent himself," and his hostility and disinclination to cooperate with Christina and the social worker.
On February 20, 2003, the court granted Juan's motion to represent himself. The court consistently issued orders to the California Department of Corrections and Rehabilitation (CDCR) to produce Juan for dependency hearings. At many hearings, but not all, Juan refused to be transported and refused to sign the waiver for his appearance. On December 2, 2003, after finding that Juan was intentionally delaying the proceedings, the court revoked Juan's status as a pro se litigant and reappointed counsel to represent him. Juan refused to cooperate with counsel and continued to act in pro per. The court later relieved appointed counsel at her request.
On May 26, 2004, at an oft-delayed 12-month review hearing, the court terminated reunification services and identified long-term foster care as the preferred permanency plan for Fabian. At a post-permanency review hearing on February 27, 2007, the court changed Fabian's permanency plan from long-term foster care to "return home." The court ordered Juan's appearance at the next permanency review hearing on May 9, 2007 (May 9 hearing).
At the hearing, the court reviewed its order to produce and the form returned by the CDCR. The returned form allows the prisoner to sign a waiver of his or her right to appear at the proceeding at which the prisoner's appearance was ordered by the court. It also allows a CDCR employee to declare under penalty of perjury the prisoner has stated that he or she does not wish to appear at the proceeding.
Here, form CDC 1750 (8/92) was used. It no longer complies with Penal Code section 2625. (See Discussion, post, at pp. 4-6.) The Judicial Council has adopted form JV-450 [Rev. July 1, 2006] for mandatory use.
The word "WAIVER" is written on the order for Juan's appearance. The attached page, entitled "WAIVER OF COURT APPEARANCE," contains a notation, signed by a CDCR employee, that Juan refused to sign a waiver of his right to appear. The CDCR employee did not complete the section of the form entitled "ACKNOWLEDGMENT OF REFUSAL TO APPEAR."
The court found that Juan refused to sign a waiver of his appearance and refused to be produced at the hearing. The court reinstated Christina's educational rights for Fabian, confirmed its prior orders and ordered the San Diego County Health and Human Services Agency (Agency) to file an order to produce Juan for the next permanency planning review, scheduled on November 6, 2007.
DISCUSSION
A
Juan contends the court relied on impermissible hearsay evidence when it determined Juan chose not to be present at the post-permanency review hearing. Juan asserts the court violated his due process right to represent himself as a pro se litigant and disregarded his constitutional right to be heard on matters concerning his child. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412; Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.) Juan argues this is a structural error requiring reversal. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.) Alternatively, he argues the error was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
The Agency contends Juan did not have a due process right to be present at the post-permanency review hearing. Alternatively, the Agency argues the returned form was in substantial compliance with the requirements of Penal Code section 2625, and the juvenile court acted within its discretion when it determined Juan waived his appearance at the May 9 hearing. The Agency asserts any error was harmless under the standard expressed in People v. Watson (1956) 46 Cal.2d 818, 836.
Unless otherwise specified, further statutory references are to the Penal Code.
Minor's counsel joins Juan's arguments. He contends there is no factual basis to support the court's finding that Juan refused to be produced for the hearing. Minor's counsel asserts that, as a practical matter, there is effectively no practical benefit which Juan can achieve from this appeal, and suggests the proper remedy is to reverse the court's finding that Juan refused to be produced for the hearing.
We review applicable legal principles de novo, and apply a deferential standard of review to the court's exercise of discretion and resolution of disputed fact. (Ghirardo v. Antonioli (1994)8 Cal.4th 791, 800-801.)
B
Prisoners have a constitutional right of access to the courts and " 'absent a countervailing . . . interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' " (In re Jesusa V. (2004) 32 Cal.4th 588, 601 (Jesusa V.) quoting Boddie v. Connecticut (1971) 401 U.S. 371, 377.) Prisoners do not have a constitutional right to be personally present at every type of hearing. Due process guarantees notice and an opportunity for a hearing "appropriate to the nature of the case." (Boddie v. Connecticut, supra, at p. 378 (italics added).)
Further, the right of a prisoner to be present in court is not absolute, even in the context of a criminal proceeding. "[T]he court has discretion to deny any request which would unjustifiably delay a trial, or obstruct the orderly administration of justice." (In re Gary U. (1982) 136 Cal.App.3d 494, 499.)
Section 2625 establishes a procedure through which state prisoners incarcerated in California are able to attend dependency hearings held in California. (In re Maria S. (1997) 60 Cal.App.4th 1309, 1312.) Section 2625 identifies the proceedings at which an incarcerated parent has a right to be present. It provides that "[n]o proceeding may be held" to terminate the parental rights of any prisoner or to adjudge the child of a prisoner a dependent of the juvenile court under Welfare and Institutions section 300, "without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by [a representative of the correctional institution] stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding." (§ 2625, subd. (d).)
In Jesusa V., the California Supreme Court held that section 2625, subdivision (d) requires the presence of both the prisoner and his or her attorney at a hearing to terminate parental rights or an adjudication under Welfare and Institutions Code section 300. (Jesusa V., supra, 32 Cal.4th at pp. 621-623.)
In any other action or proceeding in which a prisoner's parental or marital rights are subject to adjudication, the court may order the institution to produce the prisoner. (§ 2625, subd. (e) (italics added).) "Because the trial court has discretion whether to order the prisoner's removal in this category of cases, 'it follows that such a case may proceed without attendance by the prisoner-parent.' " (Jesusa V., supra, 32 Cal.4th at p. 599 quoting In re Barry W. (1993) 21 Cal.App.4th 358, 370.) Under subdivision (e) of section 2625, unlike subdivision (d), the court can proceed without a waiver by the prisoner or an affidavit from the correctional institution that the prisoner indicated an intent not to appear at the hearing before.
We do not believe an unsigned and unsworn notation on the order for Juan's appearance meets the statutory requirement of "an affidavit" signed by a representative of the correctional institution. (§ 2625, subd. (d).) However, Juan's parental or marital rights were not subject to adjudication at the May 9 post-permanency review hearing, and procedures required under subdivision (d) of section 2625 do not apply. The court's review of the order for Juan's appearance was not necessary under section 2625, subdivision (e), and the sufficiency of the waiver is not relevant to the constitutional issues raised on appeal.
An affidavit is a written declaration under oath, made without notice to the adverse party. (Code Civ. Proc. § 2003; see also Code Civ. Proc. § 2515.5.)
We are not persuaded by Juan's contention he was denied the opportunity to attend the May 9 hearing and to be heard on issues concerning his interest in Fabian's care. Juan was served with the court's order of February 27, 2007, and received notice of the May 9 hearing. An order to produce Juan at the May 9 hearing was filed on February 28. The Agency mailed Juan a copy of its status review report on April 10, 2007, and notified him that it was not seeking a change in the custody, status or any existing court-ordered permanent plan for the child. Thus Juan was afforded fundamental due process protections of notice and the opportunity to be heard. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.)
Juan did not exercise his opportunity to be heard. He did not contact the social worker or otherwise provide information to the court concerning his interests in Fabian's welfare, nor did he request appointment of counsel. The record shows that Juan was capable of communicating his concerns to the court, and the court was well aware of his position against Fabian's anticipated 60-day visit with Christina and any other action that would allow Christina to regain custody of the child.
In Jesusa V., the Supreme Court held that a prisoner was not denied any statutory or constitutional rights when the juvenile court proceeded with a hearing not involving termination of parental rights or the child's adjudication as a dependent of the court while the prisoner's attorney was present but the prisoner was absent. (Jesusa V., supra, 32 Cal.4th at p. 602.) Here, Juan was not represented at the hearing. We therefore consider Juan's assertions he had a due process right to represent himself at the May 9 hearing, and the court violated his rights when it proceeded in his absence.
Although criminal defendants have a right to self-representation guaranteed by the Sixth Amendment to the United States Constitution (Faretta v. California (1975) 422 U.S. 806, 819-834), there is no due process right of self-representation in juvenile dependency proceedings under the state or federal Constitutions. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1082; In re Justin L. (1987) 188 Cal.App.3d 1068, 1072-1073; see In re Conservatorship of Joel E. (2005) 132 Cal.App.4th 429, 439.) Thus Juan's claim the court violated his due process right to self-representation when it conducted a post-permanency review hearing in his absence must fail.
We note that "[i]n California, indigent parents in dependency and termination of parental rights proceedings have long had a statutory right to court-appointed counsel, at public expense, in the trial courts and on appeal." (In re Benjamin E. (1996) 44 Cal.App.4th 71, 75; Welf. & Inst. Code, §§ 317, 366.26, subd. (f); Cal. Rules of Court, rules 5.534(g) [at each hearing the court must advise a self-represented parent of the right to be represented by counsel], 5.534(h) [a parent may waive right to counsel].) Error in denying a parent the exercise of the statutory right to self-representation is analyzed under ordinary principles of harmless error, as set forth in People v. Watson (1956) 46 Cal.2d 818. (In re Angel W., supra, at p. 1082; In re Justin L., supra, 188 Cal.App.3d at p. 1068.)
Assuming, without deciding, that Juan has not forfeited his right to self-representation, we apply "our familiar harmless-error test." (Jesusa V., supra, 32 Cal.4th at p. 625.) Juan does not explain how he was prejudiced by the court's order. He does not identify any evidence he would have offered had he been present at the hearing. The court was fully aware of Juan's position against Christina's visitation and goal of returning Fabian to her care. The record shows Christina continued to make slow but steady progress toward her goal to reunify with Fabian. Juan was incarcerated when Fabian's first dependency proceeding was initiated in 1998, when Fabian was two years old and remains incarcerated. The record shows that Fabian is bonded to his mother, enjoys his weekend visits in her home and looks forward to returning to her care. On this record, we conclude it is not "reasonably probable that a result more favorable to the appealing party would have been reached" had Juan been present to represent himself at the May 9 post-permanency review hearing. (People v. Watson, supra, 46 Cal.2d at p. 837.) Error, if any, is harmless.
"' When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations].' " (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444; see Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) Pro se litigants do not have the right to intentionally disrupt or significantly delay the proceedings. (In re Angel W., supra, 93 Cal.App.4th at p. 1084.) A parent may not use the right of self-representation to impinge the rights of the child to a judicial determination as important, if not more so, to the child's interest as to the parent's. (Cf. In re Gary U., supra, 136 Cal.App.3d at p. 500.)
DISPOSITION
The order is affirmed.
WE CONCUR: NARES, J., McDONALD, J.