Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Marguerite Downing, Judge. Affirmed.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Senior Deputy County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
In this consolidated appeal Christina I., the mother of 10-year-old J.I., appeals from the February 14, 2008 order of the juvenile court refusing to allow her to represent herself in an ongoing dependency proceeding and the court’s May 1, 2008 order terminating her parental rights (Welf. & Inst. Code, § 366.26). We affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Factual and procedural background
1. The Initial Dependency Proceedings and Christina’s First Appeal
A more complete description of these proceedings is contained in our earlier opinion affirming orders made at the six-month review hearing (§ 366.21, subd. (e)) following the court’s declaration J.I. was a dependent child of the court. (See In re J[.]H. (Jan. 10, 2007, B191000) [nonpub. opn.].)
J.I., born in January 1999, was declared a dependent child of the court in November 2005 due to his mother’s periodic use of drugs (§ 300, subd. (b)). After the disposition hearing J.I. was placed in the home of his maternal aunt in Montana. Christina was ordered to participate in a drug rehabilitation program with random testing, to obtain individual counseling for drug and mental health issues and to attend conjoint counseling with J.I. when appropriate. Christina was granted monitored visitation with discretion given to the Los Angeles County Department of Children and Family Services (Department) to liberalize her visitation as appropriate.
A six-month review hearing was scheduled for May 9, 2006. In the status review report prepared for that hearing, the Department detailed Christina’s partial compliance with drug testing and described Christina’s erratic behavior. The Department requested continued reunification services, including monitored visitation, and orders that Christina undergo random drug testing, an outpatient drug treatment program, individual counseling, parenting and anger management instruction and a psychological evaluation “to assist the department in case planning issues.”
At the hearing Christina’s counsel informed the court Christina disagreed with the Department’s recommendations, believed the petition and its sustained allegations were incorrect, refused to undergo a psychological evaluation and wanted the case transferred to Montana.
With respect to the residency issue, Christina told the court, as of the following day, she would be living in Montana. Both J.I.’s counsel and counsel for the Department opposed transfer of the case. J.I.’s counsel told the court, “She’s had plans to move there, from the information from the report, for some time. I have at this time grave concerns about her stability. I have information that, from speaking with the Department and other parties, that she might even be interested in moving to Northern California.”
J.I.’s counsel also requested a protective order in the event Christina did move to Montana. She explained, “I think that this court and counsel need to make sure that J.I. is safe, which is why I would be asking for some protective orders for J.I. and asking that, if Miss I[.] does go to Montana, that she’s to stay at least 100 yards away from where he lives . . . and away from his school.”
With respect to reunification services, Christina’s counsel represented Christina “does not believe she needs any of this counseling that’s being urged by the Department.” He said, “I can just express my client’s belief that no counseling, no [Evidence Code section] 730 evaluation would be warranted in this case, and that the case should be transferred to Montana.” When J.I.’s counsel urged a psychological evaluation as “exactly what the family needs to try to understand what Ms. I[.] is experiencing and, also, my client,” Christina interjected, “These people are in violation of my civil rights.”
The court asked, given that Christina was “completely resistant to any services offered, why should they be continued to be offered?” After some disagreement about Christina’s willingness to participate, the court said, “I’m going to ask at this point in time through you [Christina’s counsel] whether or not at this time the mother is desirous of availing herself to these programs or services that are offered by the Department. I’ll name them specifically: random drug testing, enroll in individual counseling, parenting education and counseling, anger management, and outpatient drug treatment program, and the psychological evaluation. Is she willing to avail herself of those services? If not, the court is not offering them.”
Counsel replied Christina would accept services in Montana. The court responded, “Is she willing or unwilling to participate in these services offered by the Department in Los Angeles County?” Counsel said Christina was willing to participate in those services, except for the psychological evaluation, in Montana. The court asked again, “You’re saying she’s willing to participate in all the services here in Los Angeles County, offered by the County of Los Angeles, except the [Evidence Code section] 730 [evaluation]?” Counsel reiterated Christina was willing to participate in “the recommended counseling regimen” in Montana, but not the evaluation. The court considered this a refusal of offered services.
Notwithstanding Christina’s position, at the request of the other parties, the trial court ordered reunification services continue. The court also ordered Christina to undergo a psychological evaluation with a Los Angeles-based expert. The expert was to address the likelihood Christina would physically or emotionally abuse J.I., to offer his recommendations as to the appropriate placement and visitation arrangements for J.I., to discuss the prospects for reunification “based upon mother’s mental & emotional condition/issues,” and to make recommendations as to therapy, if any. The court also ordered, at the Department’s request, that Christina stay at least 100 yards away from J.I.’s residence and school in Montana and that any visits be monitored by a neutral, non-relative monitor. We affirmed the orders entered at the May 9, 2006 hearing. (See In re J[.] H. (Jan. 10, 2007, B191000) [nonpub. opn].)
2. Subsequent Proceedings
After the May 2006 hearing Christina moved to Montana and began monitored visits with J.I. Christina’s conduct during these visits so disturbed the monitor (a Montana social worker) the worker requested future visits be conducted in a therapeutic setting. The Department filed a section 388 petition to require Christina’s visits be monitored by a professional in a therapeutic setting and to restrict such visits until she enrolled in drug rehabilitation, parenting and individual counseling and completed the court-ordered psychological evaluation. In a hearing on September 29, 2006 the court ordered Christina’s visits be monitored by a licensed therapist.
Subsequent visits between Christina and J.I. were conducted in the presence of a licensed clinical social worker, who reported inappropriate, sexually-tinged conduct by Christina toward J.I. and Christina’s failure to accommodate her conduct to the needs of her son, then seven years old. In a report prepared for the 12-month review hearing scheduled for November 2006 (§ 366.21, subd. (f)), the Department recommended Christina’s reunification services be terminated and a permanent plan selected for J.I. Christina requested a continuance of the hearing to allow her to obtain the required services and psychiatric evaluation, which she claimed she had been unable to schedule in Montana. In an addendum report submitted December 14, 2006, the Department reported Christina had been ordered by a Montana court to submit to random alcohol and drug tests following her arrest for driving under the influence. Christina was unable to attend the hearing, and on December 14, 2006 the court terminated reunification services and set a section 366.26 selection and implementation hearing (the .26 hearing) for June 14, 2007.
Christina disputed she had been drinking and contended she had purposely tried to get arrested in order to force the State of Montana to pay for the substance abuse program ordered by the juvenile court. Throughout these proceedings, Christina has consistently denied she has a substance abuse problem.
Having been told by Christina’s sister her family could not keep J.I. past June 2007 in light of Christina’s continuing harassment, the Department began searching for an adoptive placement for J.I. In April 2007 the Department filed a new section 388 petition requesting Christina’s visits be discontinued in light of the licensed therapist’s reports the visits were damaging to J.I. Christina, who was now enrolled in a parenting program, also filed a section 388 petition seeking to reinstate reunification services with the goal of reuniting with J.I. In a report prepared for the hearing on the petitions, the Department disclosed J.I. had been diagnosed with a number of developmental and psychiatric disorders, including a reactive attachment disorder arising from his relationship with Christina, and was receiving individual therapy as well as therapeutic family services to assist him with resulting socialization and academic issues. The Department also attached a copy of the court-ordered psychiatric evaluation, which Christina had finally obtained from a psychiatrist in Los Angeles, and a treatment plan submitted by a Montana mental health services provider some months earlier. Both documents referred to the possibility of bipolar and borderline personality disorders, complicated by chronic pain. At a May 25, 2007 hearing on the petitions, the court denied Christina’s petition and suspended her visits with J.I. pending further order.
The psychologist, Dr. Alfredo E. Crespo, reported Christina “approached the psychological tests administered to her so defensively that her actual diagnoses remain somewhat of a mystery.” He declined to exclude the possibility of diagnosing bipolar or borderline personality disorders, but postulated an alternative diagnosis of histrionic personality disorder, “the essential features of which are excessive emotionality and attention-seeking.” He also noted Christina’s behavior might have been influenced by chronic pain associated with fibromyalgia and arthritis, diagnoses that had led to her becoming permanently disabled in 1989. He concluded, “Without a better understanding of her experience in this regard, her current therapy plan will likely fall short of helping her.”
Prepared by a licensed therapist, the treatment plan made a provisional diagnosis of bipolar and borderline personality disorders and recommended a combined course of treatment, therapy and monitoring. In early May 2007 Christina entered a month-long recovery program to meet the requirements imposed by the dependency court. The program’s discharge summary acknowledged her developing insight into her destructive behaviors but recommended she pursue mental health intervention based on her diagnoses of bipolar and borderline personality disorders.
Prior to the June 14, 2007 hearing, the Department requested the matter be continued for 120 days to allow identification of an adoptive placement for J.I. and completion of a home study. The Department also submitted a letter received from the licensed therapist monitoring Christina’s visits with J.I. stating, “Since Christina returned from California, on April 18, 2007, the [five] visits between her and [J.I.] have been appropriate.” In subsequent emails, however, the monitor questioned the extent to which the improvement in Christina’s behavior reflected real change and restated her concerns that Christina manifested psychiatric disorders, a concern exacerbated by the report from Christina’s therapist she had failed to keep her appointments and had not made progress in confronting the issues that led to J.I.’s detention. Nonetheless, the Department acknowledged J.I. had been upset by the termination of Christina’s visits and “has been quick to tear up and . . . become agitated.”
On the eve of the June 14, 2007 .26 hearing the Department disclosed that two potential adoptive families had been identified. J.I. The court ordered a supplemental report to address any changes in recommendations and continued the matter to June 26, 2007.
The prospect of an adoptive placement prompted Christina to file yet another section 388 petition seeking increased visitation with J.I. and reinstatement of reunification services. In support of her petition Christina cited the positive visits with J.I., her negative drug tests and her completion of the recovery program. In a review report for the continued .26 hearing, however, the Department stressed the length of time J.I. had been in foster placement and recommended pursuit of an adoptive placement. On June 26, 2007 the court reinstated monitored visits in a therapeutic setting but directed the Department to initiate investigations of the two families identified by the social workers in Montana. A month later, on July 30, 2007, the court denied Christina’s third section 388 petition.
The .26 hearing was continued until August 22, 2007. In its interim review report for the hearing, the Department submitted a due diligence packet certifying J.I.’s alleged father could not be located and advised that one of the two prospective adoptive placements had been approved and the other was pending. Shortly before the hearing, J.I. had been placed with the second couple, a family he had known while living with his maternal aunt. At the hearing J.I.’s counsel urged the court to allow him to stay in his new placement pending further hearings, in part because J.I. knew the family and had stated he wanted to live with them. The court agreed and continued the hearing to allow publication of notice to J.I.’s alleged father and to allow completion of the required home study. At the request of Christina’s counsel, the court also directed the Department to try to have the case transferred to Montana.
According to the Department, the State of Montana had originally refused to accept transfer of the case under the Interstate Compact on the Placement of Children (Fam. Code, § 7900 et seq.), but had agreed to facilitate and monitor J.I.’s foster and adoptive placements.
On the day of the hearing Christina filed a lengthy motion to remove her court-appointed counsel and to return J.I. to her home. The motion alleged her constitutional rights had been violated by the court and by the Department and attached numerous exhibits purporting to support her claims. The court elected to construe Christina’s motion as a petition under section 388 and set it for hearing on September 12, 2007, in conjunction with the continued .26 hearing.
In particular, Christina alleged the Department had fabricated evidence she used drugs and alcohol, had interfered with her efforts to comply with the court-ordered reunification services and had suppressed positive evidence demonstrating her ability to parent J.I.
At the commencement of the September 12, 2007 hearing, however, the court had not yet reviewed Christina’s motion, in part because no one had submitted the required section 388 scheduling memorandum. Christina handed a copy of her motion to the court but, due to its length, the hearing on the motion had to be rescheduled. Christina, understandably frustrated by the scheduling error and delay, exacerbated by the substantial cost of traveling from Montana to Los Angeles for court hearings, tried to explain the grounds for her motion and her need for the case to be transferred. When the court stated the case could not be transferred, Christina became confrontational, prompting the court to threaten to terminate the hearing. The parties then agreed to continue the hearing for 90 days and to allow one monitored visit between Christina and J.I., subject to the approval of the Montana therapist, as well as monitored telephone conversations, subject to J.I.’s wishes.
According to the Department’s report submitted for the December 13, 2007 hearing, Christina, claiming she had been sick, did not contact Montana social workers to schedule her visit until late October, almost six weeks after the hearing authorizing the visit. The Department also reported its counterparts in Montana had discovered Christina was arrested a second time for driving under the influence on October 10, 2007 and had been incarcerated for two weeks. Until she was arrested, Christina had been calling J.I. once a week; but, when she attempted to resume the calls after her release from jail, J.I. refused to speak with her. Finally, the Department reported J.I. was adapting well to his new family and the adoptive home study had been completed and approved. As all notice requirements had been satisfied, the Department recommended the court identify adoption as J.I.’s permanent plan and terminate all parental rights.
At the December 13, 2007 hearing, Christina’s counsel requested setting a date for a contested hearing and stated Christina would be attempting to establish an exception to termination of parental rights under former section 366.26(c)(1)(A). He also requested additional visits and telephone calls on her behalf, which led to a heated exchange between J.I.’s counsel and Christina, who disputed the assertion J.I. did not want to see or talk to his mother. Because no order had previously been entered finding visits would be detrimental to J.I., the bench officer (a referee who had not presided at prior hearings in this matter) ordered two additional visits and weekly monitored telephone calls and continued the hearing until February 7, 2008.
Effective January 1, 2008 the six statutory exceptions to termination of parental rights formerly located in section 366.26, subdivision (c)(1)(A) through (F), were renumbered, without substantive change, and are now found in section 366.26, subdivision (c)(1)(B)(i) through (vi). Current section 366.26, subdivision (c)(1)(B)(i), which is substantially the same as former section 366.26, subdivision (c)(1)(A), provides the juvenile court may decline to terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
The additional visits occurred in January 2008. According to J.I.’s therapist, who monitored the visits, Christina conducted herself appropriately but J.I. did not reciprocate the exuberant affection shown by Christina. The therapist also reported the visits had a detrimental effect on J.I.’s behavior at school, a result she attributed to his continuing confusion about his future.
The therapist also criticized Christina for hugging J.I. too intensely and physically at the conclusion of the second visit, as if she wanted to “soak” him up. Accepting as accurate the therapist’s description of Christina’s embrace of her son, we are disinclined to conclude her behavior, in this regard, was inappropriate. Christina knew this was likely her last visit. Her love for, and commitment to, J.I. is evident throughout the record, even if she proved unable to overcome the issues that created the need for court intervention and ultimately resulted in termination of her parental rights.
The February 7, 2008 hearing proceeded before a different bench officer. At the start of the hearing Christina’s counsel advised the court his client wished to proceed in pro per. Following a series of inquiries, it appeared Christina’s waiver of her right to counsel was knowing and voluntary. However, the referee presiding at the hearing declined to rule on the request after Christina asserted her right to have a judge, rather than a referee, decide the issue. The referee stopped the hearing, declined to relieve Christina’s counsel and set a continued hearing date for one week later.
At the continued hearing on February 14, 2008, Christina first sought to replace her appointed counsel via a “Marsden motion” “because he’s guilty of due diligence like with the prior attorneys I’ve had.” After the court denied the motion, Christina’s counsel moved on his own behalf to be relieved as counsel because Christina had filed a complaint against him alleging he had not acted in her best interest and had refused to submit evidence on her behalf. He also stated Christina had sued him personally, along with other attorneys who had represented her, as well as the judge originally assigned to hear J.I.’s dependency petition. The court granted the motion and then inquired about Christina’s wish to represent herself, which would include signing a Faretta waiver.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden) addresses the circumstances under which a criminal defendant has a right to have his or her appointed counsel replaced and the procedures to be used by the trial court in determining whether those circumstances exist. Because parents have a right to competent counsel in dependency proceedings, a comparable mechanism for challenging the adequacy of their representation by appointed counsel has been recognized by the courts. (See, e.g., In re James S. (1991) 227 Cal.App.3d 930, 935-936 & fns. 12, 13.) Although the juvenile court “must make some inquiry into the nature of the complaints against the attorney,” an exhaustive hearing is not required. (Id. at p. 935, fn. 13.)
See Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta). In Faretta the Supreme Court held a criminal defendant not only has the right to the assistance of counsel, but also “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Id. at p. 807.)
At this point Christina stated, “I’m not willing to sign something that says I’m pro. per./pro se because I am not. I am juris, and I am sovereign. That means I go on the constitutional laws. That what my guidelines are is the Constitution, and that’s the constitutional rights I will defend.” The court then proceeded to review orally the Faretta-waiverrequirements with Christina. During this interchange, although Christina acknowledged she was willing to waive her right to an attorney, she also gave several answers the court evidently considered to be non sequiturs and asserted the court lacked jurisdiction to take her son. As the court explained, “[A]fter attempting to go over the Faretta waiver, because of Ms. I[.]’s unwillingness to complete it at this time, [the court] finds that she is not competent to represent herself. Ms. I[.] does not have an understanding of the standard of proof in this matter. She doesn’t understand the issues with respect to representing herself. She doesn’t understand what her responsibilities are, nor does the court feel that she is in a position to effectively present whatever evidence or testimony she needs to in this matter. She has indicated to the court that she does not have any legal background. . . . She appears to not be able to distinguish between the issues that are specific to this .26 hearing versus the issues that were presented originally at the 300 petition to determine the court’s jurisdiction in this matter. So, based on that, the court finds that Ms. I[.] does not have the knowledge to proceed pro. per. in this matter . . . .”
After a recess the court reconvened the hearing and appointed replacement counsel for Christina, even though Christina had refused to speak with him and he was concerned he could not represent her effectively. The court then stated its intent to continue the hearing for one month to allow Christina’s new attorney to become familiar with the case, prompting Christina to assert her right to a “speedy trial” and to demand her attorney and the court sign “an office of oath.” The court, obviously frustrated with Christina’s conduct, set a new .26 hearing date of March 13, 2008 and terminated the hearing.
3. Termination of Christina’s Parental Rights
Two days before the March 13, 2008 hearing, Christina filed what she labeled as a “Counter Claim for Color of Law,” containing 46 counts alleging, among others, the crimes of kidnapping, false arrest, sexual abuse and genocide and challenging the jurisdiction of the court. She sought a total of $5.79 billion in damages payable only in gold or silver. Attached to the complaint were pictures of her playing with and hugging J.I. taken during her recent visits with him. A supplemental report submitted by the Department on March 13, 2008 stated, “According to [J.I.’s therapist], in early February 2008 [J.I.’s] behavior became a major problem, but as of March 5, he began to settle a bit and is now mildly defiant. . . . [A] lot of [J.I.]’s behaviors are attributed to the lack of permanency he has in that he doesn’t know where he is going or where he belongs. . . . [C]ontact with mother in the form of phone calls and visits that [J.I.] doesn’t ask for compromises [his] emotional well being and contributes to [his] behavior problems.”
Because the bench officer presiding on March 13, 2008 was a referee, counsel agreed to continue the matter to May 1, 2008 for the contested .26 hearing. Christina requested an opportunity to speak. After initially objecting to the continuance on the ground she had a right to a speedy trial, she stated in part, “Your honor, this court doesn’t have jurisdiction, never did have jurisdiction. The child in custody is my -- is not the child on the petition. And in order to cover up their fraud, their perjury, their trickery and scheming, they’re trying to fool you today by switching the name on the petition. . . . So they never did have custody of the child in the petition. The child that they have is my son, [J.I.]. And they did this for defrauding the government for block grants. And I have moved this whole case to Montana because that is my son’s home state. . . . My home state is in Montana. And I did a countersuit against these people for frauding [sic], trickery, of kidnapping my son.” After Christina concluded, the referee directed counsel to investigate her allegations and “if they are significant, please bring them up.” The referee then terminated the hearing.
That afternoon, according to a Department report prepared for the May 1, 2008 .26 hearing, Christina was arrested in Los Angeles on felony fraud charges and incarcerated. The court issued an order for Christina to attend the May 1, 2008 hearing.
The record contains no further details about the charges.
At the May 1, 2008 hearing Christina’s counsel requested a further continuance because her incarceration had prevented her from preparing necessary evidence. However, as her counsel explained, Christina had instructed him “not to proceed today even though I’m prepared for today’s hearing.” Asked how long she would be in custody, Christina answered she was to be released that day and had been falsely arrested, under pressure from the Department, “to prevent me to come and testify for my son and I.” She also claimed she had moved the case to federal district court in Montana as of March 24, 2008. Under further questioning, she again claimed she was due to be released on “OR” (own recognizance) that day because the government could not come up with any evidence. She repeated her desire to go to trial, but protested her witnesses were not in the courtroom.
The court ruled no further continuances would be granted. The Department reports were admitted into evidence. Asked whether he intended to proceed with the defense, Christina’s counsel stated, “Mother does not want to proceed with today’s hearing, and she has instructed me not to proceed. That she chooses not to testify, but she does object to this hearing, and she does object to termination of her parental rights. . . . [T]here is evidence in the court file to show that she is well-bonded with her son under [section] 366.26(c)(1)(B)(i) based on her visits and [] relationship prior to detention.” Christina then spoke briefly, repeating her earlier claims she had solid evidence Department workers committed perjury and falsified evidence and that she had filed a federal lawsuit against her counsel, J.I.’s counsel and the judge. The court acknowledged Christina’s right to appeal and, noting the age of the case (the petition had been filed on October 5, 2005) and the stressful effect of the process on J.I., found by clear and convincing evidence J.I. was likely to be adopted and terminated Christina’s parental rights.
Contentions
Christina contends the juvenile court erred in denying her the right to represent herself and improperly restricted her visitation rights, thus preventing her from establishing the beneficial relationship exception to termination of her parental rights. She also contends the court erred in refusing to continue the May 1, 2008 termination hearing.
Discussion
1. The Juvenile Court Did Not Abuse Its Discretion in Refusing To Allow Christina To Represent Herself
a. The standard applicable to a request for self-representation in juvenile court proceedings
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.” “A waiver of counsel is valid if the juvenile court has apprised the parent of the dangers and disadvantages of self-representation and the risks and complexities of his or her particular case.” (In re A.M. (2008) 164 Cal.App.4th 914, 923; accord, In re Brian R. (1991) 2 Cal.App.4th 904, 921.) A parent’s right to self-representation, however, is statutory only; the United States Constitution and the California Constitution do not give a parent the right to self-representation. (In re A.M., at p. 923; In re Angel W. (2001) 93 Cal.App.4th 1074, 1083 (Angel W.).)
Section 317, subdivision (b), states, “When it appears to the court that a parent . . . of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel for the parent . . . unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.”
“A parent’s request for self-representation in a juvenile dependency proceeding differs from the same request by a criminal defendant in two significant respects. First, as explained, the parent’s right of self-representation is statutory, not constitutional, and therefore must be balanced against other parties’ rights. Second, the parent’s exercise of the statutory right of self-representation could affect the child, who also has rights requiring protection.” (In re A.M., supra, 164 Cal.App.4th at p. 925.) Nonetheless, “the court must respect the right of the parent to represent him- or herself as a matter of individual autonomy and avoid forcing the mentally competent parent to proceed with appointed counsel in the guise of protecting a person who is unskilled in the law and courtroom procedure.” (Angel W., supra, 93 Cal.App.4th at p. 1084; see In re A.M., at pp. 923-924.)
In Angel W. the juvenile court had denied the parent’s request to represent herself, citing concerns the parent had disrupted, and might continue to disrupt, courtroom proceedings. (Angel W., supra, 93 Cal.App.4th at p. 1084.) The appellate court acknowledged the validity of this concern, but cautioned “[t]he possibility of disruption or delay . . . exists to some degree with virtually all pro se litigants and the mere possibility alone is not a sufficient ground to deny self-representation.” (Id. at p. 1085.) To guide evaluation of requests for self-representation made by potentially disruptive parents, the court stated, “Only when the pro se litigant ‘is and will remain’ so disruptive as to significantly delay the proceedings or render them meaningless and negatively impact the rights of the minor in a prompt and fair hearing may the court exercise its discretion to deny self-representation.” (Ibid.) Because the record gave no indication the parent could be expected to routinely disrupt the proceedings, the court concluded the parent should have been allowed the right to represent herself. (Ibid.) Nonetheless, the court determined the error was harmless under People v. Watson (1956) 46 Cal.2d 818. (Ibid.)
The Fourth District recently explained Angel W. considered the scope of a juvenile court’s discretion to deny a parent’s request for self-representation only in the context of a potentially disruptive parent. (In re A.M., supra, 164 Cal.App.4th at p. 924.) Anchoring its analysis on the premise that the “overarching goal” of the juvenile dependency system is the child’s best interests (§ 202), the court observed that expeditious resolution is critical to those best interests. (In re A.M.,at p. 925, citing § 352, subd. (a) [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”]; see In re Celine R. (2003) 31 Cal.4th 45, 59 [“[c]ourts should strive to give the child this stable, permanent placement . . . as promptly as reasonably possible consistent with protecting the parties’ rights and making a reasoned decision”].) Accordingly, the court held a juvenile court has 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 prompt resolution of custody status or unduly disrupt the proceedings.” (In re A.M., at pp. 925-926.) At any point in the proceedings the court must consider the effect of the request for self-representation on the child’s right to a prompt resolution of the dependency proceedings. (Id. at p. 926.)
In In re A.M. the Fourth District was confronted not with a disruptive parent but with a parent who had already sought multiple continuances of a contested jurisdiction/disposition hearing, purportedly because of health problems, when he first sought to represent himself. (In re A.M., supra, 164 Cal.App.4th at p. 920.)
b. The denial of Christina’s request to represent herself is supported by the record
The juvenile court denied Christina’s request to represent herself based on its concern she was not sufficiently knowledgeable to handle the legal issues presented in the case. Although well-motivated, this is not a valid reason to deny a request for self-representation. (See In re A.M., supra, 164 Cal.App.4th at pp. 923-926; Angel W., supra, 93 Cal.App.4th at pp. 1083-1085.) Consequently, we cannot conclude denial of Christina’s request -- based on the reason stated -- fell within the scope of the court’s discretion.
A knowing waiver of the right to counsel presumes the mental competence of the parent. (See Angel W., supra, 93 Cal.App.4th at p. 1084.) Although the record suggests Christina’s mental disorders compromised her ability to understand the proceedings, the juvenile court made no such findings; and we are reluctant to do so on review.
The record contains ample evidence, however, to support findings that would have justified denial of Christina’s request to represent herself. On a number of occasions she interrupted other speakers, challenged the jurisdiction of the court and either demanded dismissal of the case or asserted rights she mistakenly believed she had. This disruptive pattern intensified over the course of the dependency proceedings. Moreover, as the court observed, the initial petition was filed in October 2005, and the proceedings had been pending more than two years when the court denied Christina’s request for self-representation in February 2008. Throughout the summer and fall of 2007 and into early 2008, the Department had reported the delay in establishing a permanent plan for J.I. had adversely affected his behavior. The Department urged the court to expedite an adoptive placement and to terminate Christina’s visits because they were upsetting J.I. and were impeding his adjustment. Christina’s subsequent behavior, including the March 2008 counterclaim and her arrest on fraud charges, indicates her worsening mental problems, well-documented in the record, would have further impeded the prompt resolution of J.I.’s case.
Appellate courts may infer a necessary finding provided the implied finding is supported by substantial evidence. (See In re S.G. (2003) 112 Cal.App.4th 1254, 1260.)
The delay in permancy was, in large part, caused by Christina’s interference with J.I.’s initial placement with his maternal aunt, who concluded she could not adopt J.I. because of Christina’s behavior.
Accordingly, we cannot conclude the court erred in denying Christina the right to represent herself. (See also Angel W., supra, 93 Cal.App.4th at p. 1085 [applying Watson harmless error standard to improper denial of parent’s request for self-representation; “[o]n a review of the entire record, it does not appear reasonably probable that a result more favorable to appellant would have been reached had she represented herself”].)
2. Christina’s Belated Appeal from the Court’s Visitation Orders Is Not Timely
The preferred disposition at a .26 hearing is to “[t]erminate the rights of the parent . . . and order that the child be placed for adoption . . . .” (§ 366.26, subd. (b)(1).) “[A]doption should be ordered unless exceptional circumstances exist.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) An exception to the adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “The parent has the burden of proving that termination would be detrimental to the child” (In re Melvin A.(2000) 82 Cal.App.4th 1243, 1252), and must establish that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Ibid.)
Apparently recognizing she failed to carry her burden under subdivision (c)(1)(B)(i), Christina argues she was denied the opportunity to meet the statutory requirement because the court improperly restricted her visitation with J.I. without making the necessary finding that such visits would be detrimental to him. (See § 366.21, subd. (h).) In particular, Christina identifies the period between September 12, 2007 and May 1, 2008, during which she had only three visits with J.I.
This burden is not easily met. No matter how loving and frequent the contact, and notwithstanding the existence of an “emotional bond” with the child, “the parents must show they occupy ‘a parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The relationship that gives rise to this exception to the statutory preference for adoption “characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
However, it is now too late to challenge the orders limiting Christina’s visits during that period. “‘“Juvenile dependency law does not abide by the normal prohibition against interlocutory appeals. [Citation.] . . . [P]ostdispositional orders in juvenile dependency matters are directly appealable without limitation, except for post-1994 orders setting a section 366.26 hearing.”’” (In re Melvin A., supra, 82 Cal.App.4th at p. 1251.) To be timely, a written notice of appeal from a juvenile dependency order must be filed within 60 days after the order appealed from is made. (Cal. Rules of Court, rule 8.400(d)(1).)
Since Christina’s previous appeal, in which this court affirmed an order requiring all visits between Christina and J.I. be monitored by a neutral non-relative, the juvenile court issued several additional orders affecting Christina’s visitation with J.I. On September 29, 2006 the court ordered all future visits be monitored by a licensed therapist. Christina did not appeal from that ruling. After the Department and Christina filed opposing section 388 petitions in early 2007 -- the one seeking to halt all visitation and the other asking for increased visitation and renewed reunification services -- the court, having stayed all visitation pending further investigation, ultimately allowed visitation to continue under the previously set conditions. Again, Christina did not appeal. On September 12, 2007 the court issued an order allowing Christina to have a single monitored visit with J.I. in a therapeutic setting. On December 13, 2007 a referee ordered two additional monitored visits between December 17, 2007 and the following court date of February 7, 2008. Christina failed to appeal from either of these orders.
The time to appeal from this ruling was automatically extended by California Rules of Court, rule 8.400(d)(2), but that extension similarly expired well before this appeal was filed. (See Cal. Rules of Court, rule 5.540(c).)
Christina’s effort to revive the issue of visitation at this late date, as part of her appeal from the order terminating parental rights, is precluded. (See In re Melvin A., supra, 82 Cal.App.4th at p. 1251.)
3. The Court Did Not Abuse Its Discretion in Refusing To Continue the May 1, 2008 Hearing
Finally, Christina challenges the court’s refusal to continue the .26 hearing, originally scheduled for June 14, 2007, for yet another month to allow her to develop evidence in support of the parental bond exception under section 366.26, subdivision (c)(1)(B)(i). Christina argues her incarceration on fraud charges prevented her from preparing for the May 1, 2008 hearing.
Even if Christina’s efforts to prepare for the May 1, 2008 hearing were hampered to some extent by her incarceration in mid-March 2008, the court did not abuse its discretion in proceeding with the hearing. The petition, filed in October 2005, had been adjudicated in November 2005, leaving J.I. in an uncertain status for nearly three years. As Christina acknowledges, her reunification services were terminated on December 14, 2006, at which time the court set the .26 hearing for June 14, 2007. The hearing was subsequently continued eight times before it was concluded on May 1, 2008. Christina correctly points out the court erroneously attributed the bulk of those continuances to her, but her increasingly irrational conduct certainly impeded the expeditious resolution of the case.
The record depicts a woman whose worsening mental illness rendered her unable or unwilling to seek recommended treatment and compromised her ability to understand the needs of J.I. While we agree that mental illness, standing alone, is not a basis for termination of parental rights, Christina’s behavior highlights the difficulty of serving a parent whose judgment is seriously impaired.
Although we adamantly support the right of parents in dependency court proceedings to assert their procedural and substantive rights, Christina’s failure to cooperate with her counsel and her misunderstanding of the relevant procedures, coupled with what can be described as a contrarian personality, at best, and an ill-timed incarceration, necessarily contributed to the juvenile court’s unwillingness to continue the hearing yet again and thereby prolong J.I.’s temporary and unstable status. As we stated above, the best interests of the child remain the central purpose of dependency proceedings; and a court must consider whether a particular delay will impede the prompt resolution of the case and interfere with the child’s need for a stable living situation. (See In re A.M., supra, 164 Cal.App.4th at p. 925.) The court properly did so, and the resulting order denying a further continuance was well within its discretion. (See § 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 custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.”].)
Disposition
The orders of the juvenile court are affirmed.
We concur: WOODS, J., ZELON, J.