Opinion
B299321
01-29-2020
In re HAFSA L., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES; Petitioner, v. FAISAL L., Objector and Appellant; AIDA L., Respondent.
John L. Dodd & Associates and John L. Dodd, under appointment by the Court of Appeal, for Objector and Appellant. Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Respondent. No appearance for Petitioner.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP03991A-B) APPEAL from orders of the Superior Court of Los Angeles County. Julie Fox Blackshaw, Judge. Affirmed. John L. Dodd & Associates and John L. Dodd, under appointment by the Court of Appeal, for Objector and Appellant. Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Respondent. No appearance for Petitioner.
____________________
Faisal L. (father) appeals from a dispositional order removing his children Hafsa (born Aug. 2015) and Aida (born Feb. 2018) from his custody and placing them with his wife Aida L. (mother) under a home-of-parent order with continued jurisdiction over the children. Father argues that the juvenile court erred by: (1) denying his motion to represent himself (Faretta motion), (2) including the children as protected persons in a restraining order against him, and (3) failing to specify a visitation schedule for father and the children.
In Faretta v. California (1975) 422 U.S. 806, the United States Supreme Court held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Parents in dependency proceedings do not have a constitutional right to self-representation. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1082-1083 (Angel W.).) However, they do have a statutory right to self-representation, which must be balanced against other parties' rights. (In re A.M. (2008) 164 Cal.App.4th 914, 925 (A.M.).) Despite the different rights involved, we refer to father's motion as a Faretta motion, as the parties do, for ease of reference.
We find no error and affirm the orders.
FACTUAL AND PROCEDURAL HISTORY
Family background
Father and mother married five years ago. They are the parents of the two children who are the subjects of this appeal, Hafsa and Aida. Mother has an older child, Ivo, from a prior relationship.
Ivo is not a subject of this appeal, but is a protected person in mother's restraining order. Ivo resided with the family during much of the relevant time period. At the time of the initial investigation, Ivo was living with mother's family in Mexico. Ivo is now a legal permanent resident. Ivo's biological father has never had contact with Ivo and mother does not know his whereabouts.
When this proceeding commenced the family had one prior child welfare incident. On March 11, 2018, it was alleged that mother emotionally abused Hafsa and Aida by violent acts with father. The police had been called when an argument between mother and father got out of hand. Mother was arrested and spent three days in jail. In an interview with a social worker, mother denied attempting to stab father. Mother reported that thereafter she and father received therapy and counseling. The matter was closed as inconclusive.
Referral and initial petition
On May 1, 2018, mother called law enforcement claiming that father hit her as they argued about divorce. Father would not admit to violence against mother, but mother had redness on her shoulder. Father was arrested. Mother has another child in Mexico that she wanted to bring to the United States, but father did not want the child to come into this family situation. Mother stated that father pushed her to the ground during the argument, causing pain to her neck and back. When law enforcement arrived mother was standing outside holding the child Aida. Father told police that mother was lying, and she just wanted to take money from him after he was arrested.
Beginning on May 2, 2018, a social worker from the Department of Children and Family Services (DCFS) began attempts to contact the family. On May 18, 2018, the social worker interviewed mother, who stated that she just returned from Mexico. She and father owned an air conditioning business, and father worked a lot while mother cared for the children. Mother denied that father hit her or pushed her. She admitted they argued about money. She acknowledged having bruises on her shoulder but denied knowing how they got there.
Regarding the incident in March 2018, mother denied domestic violence. She stated that a neighbor had called police when the couple was arguing. Mother was arrested because father had a cut or scratch on his arm. Mother denied having touched or cut father. She admitted however, to a prior incident of violence between them in 2014, when father hit her and father was arrested. Mother denied any physical altercation between the couple since the 2014 incident.
Mother claimed that she and father had not had an argument since May 1, 2018. Mother sees a therapist frequently. In addition, she and father had been receiving spiritual counseling from a "spiritual brother" at the mosque they attend in South Los Angeles. The children appeared healthy and well cared-for.
The social worker made telephone contact with father on June 7, 2018, who stated that he did not have time to meet with the social worker. The social worker again made telephone contact with father on June 11, 2018. Father said he did not put his hands on mother and he did not know how she obtained the redness on her shoulder. Father did not recall what they were arguing about. He appeared preoccupied during the phone call and was not engaged in the conversation. Father stated that the children were asleep during the May 1, 2018 argument. When the social worker inquired about counseling, father indicated that he would look into it after the summer.
The initial petition was filed on June 25, 2018, alleging that mother and father had a history of domestic violence, and that the children were at substantial risk of harm under Welfare and Institutions Code section 300, subdivisions (a) and (b). The petition alleged that father had a history of criminal convictions which included battery and the infliction of corporal injury on a spouse. The history included the 2014 incident in which father struck mother, the altercation in March 2018 in which mother cut father, and the incident in May 2018 during which father hit or pushed mother to the ground.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
In a last-minute information for the court, the social worker informed the court that mother had left a voice mail on June 22, 2018, letting her know that the family had to go to Texas for a family emergency, and did not expect to be back for the June 26, 2018 scheduled hearing.
Detention, arraignment and adjudication
On June 26, 2018, the juvenile court held a detention hearing without the parents present. DCFS recommended that the children not be detained but that family preservation services be instituted. The court found that the children were those described by section 300, subdivisions (a) and (b), but there were services available to prevent detention. The children were released to the parents.
On July 25, 2018, the court conducted an arraignment hearing. Mother and father were present and were appointed separate counsel. Both mother and father entered denials. The children remained released to the parents.
The adjudication hearing was held on September 11, 2018. Mother and father were both present with counsel. Mother submitted a form JV-140 notifying the court of a new mailing address.
The juvenile court found count (b)(1) (failure to protect) to be true. It dismissed count (a)(1) (physical harm). The minors were declared to be persons described by section 300, subdivision (b), and declared dependents of the court. However, since there existed reasonable services available to prevent removal, the children were released to the custody of the parents. DCFS was ordered to provide family maintenance services and to facilitate custody shared by the parents.
Six-month review
On March 12, 2019, DCFS submitted a status review report. Mother was in compliance with the court's orders to participate in parenting classes, individual counseling, and family preservation services. Father was not in compliance with the court's orders. He was not participating in family preservation services and had not been in touch with DCFS. Father claimed not to have time in his busy schedule to attend counseling or parenting classes. Father stated he was the sole provider for his family and had to work extended hours to pay the bills for his family.
On March 12, 2019, the court conducted a section 364 review hearing. Neither mother nor father was personally present, but appeared though their attorneys, who were present. After having read and considered the status review report, the juvenile court found continuing jurisdiction necessary.
Supplemental petition and removal
On May 7, 2019, DCFS filed a supplemental petition pursuant to section 387, with a new allegation against the parents. It alleged that on April 14, 2019, father pulled mother's hair and pulled her shirt off. Further, it alleged that mother jumped in the back seat of father's vehicle, and father drove off while mother was in the back seat, causing mother to scream, kick father's head and break the window of the vehicle. Father repeatedly struck mother while she was in the back seat. Because he had driven away with mother in the car, the children were left unattended in the home. On April 14, 2019, mother was arrested for domestic violence.
In a detention report filed on May 8, 2019, DCFS reported that mother had contacted a social worker on April 22, 2019 to report that she and her three children (Hafsa, Aida and Ivo) were living in a domestic violence shelter. Mother reported that she had been arrested for domestic violence on April 14, 2019.
Mother attended her parenting class on April 17, 2019, where she disclosed to the instructor the recent incident, and explained that she wanted to be safe from father. The instructor assisted mother in getting into a domestic violence shelter.
On April 23, 2019, a DCFS social worker met with mother who reported that father started a fight with her on April 13, 2019, about her weight. The argument continued the following day. While arguing, father grabbed his backpack to leave, and mother realized she needed to get the car seat out of the car before he left. Mother followed father downstairs and tried to get the car keys. Father started pulling mother's hair and pulled off her shirt. Mother got in the back seat to retrieve the car seat, and father drove away. Mother told father that the children were home alone, and he needed to bring her back home, but he continued driving onto the freeway. Mother screamed and kicked at him. She was afraid for her life, so she broke the window. Father drove off the freeway and mother jumped in the front seat and attempted to drive away. The police arrived and witnessed mother's injuries. She was arrested and taken to jail.
When mother was released three days later, she found that father had changed the locks on the apartment and would not allow her entry. Mother's son Ivo opened the door for her when father went to a different room. When father saw her, they argued and he threatened to call the police. The following day, after her son came home from school, mother called a taxi to take her and the three children to her parenting class. There her instructor and staff assisted in getting her into a shelter. Mother informed the social worker that she was in the process of filing for a restraining order against father.
Ivo was interviewed and stated that he was at the family home playing video games when he heard mother and father arguing. Later he noticed that mother and father had been gone for about two hours. Ivo texted his grandparents in Mexico. When father returned and Ivo asked him where mother was, father said mother had broken his car window and was in jail. Father saw that Ivo was texting and took his phone. Ivo stated that father is always yelling at mother and calling her a bitch. Hafsa also reported, "My dad is really mean. He yells a lot and fights a lot at my house."
In a telephone interview, father admitted that he and mother argued on April 13 and April 14, 2019. He stated that he was pulling the car out of the driveway when mother jumped in the back seat. He told her she could not drive the car because it belonged to his friend. He drove away so that the children would not see them fighting. As father drove he noticed that she had broken the window and was yelling "help, help." He pulled over and jumped out and as mother drove away with the car, he called police. Father stated that mother's friend Anna was with the children during this time, but would not provide the social worker with Anna's last name. Father stated that the social worker was violating his rights and abruptly hung up on the social worker.
On April 24, 2019, a form DV-110 temporary restraining order was filed in superior court. The protected party was mother, with Ivo being an additional protected person. Father was the restrained person. Mother informed the social worker that she attempted to add Hafsa and Aida but was told that she could not add them due to the open dependency case. A hearing was set for May 17, 2019.
On April 25, 2019, the social worker spoke with staff at the domestic violence shelter where mother was staying, who confirmed that mother was participating in parenting classes, domestic violence and individual counseling.
On May 1, 2019, father appeared at the social worker's office unannounced. He was angry and upset and insisted that he had a right to know the location of his children. The social worker informed father that the location was confidential. Father insisted that the social worker was violating his rights and he wanted to see his children immediately. Father stated that mother was arrested, not him, and he chose not to press charges against her. Father referred to the juvenile court orders showing that he had custody at that time. When asked whether he was participating in services, father informed the social worker that he had started taking parenting classes, but he did not have the contact information for the institution. After receiving some information on individual counseling, father left to return to work.
On May 3, 2019, the social worker had a telephone conversation with father in which father was angry and used profanity. Father stated that the social worker and her department were keeping his children from him. The social worker terminated the conversation when father refused to calm down and stop using profanity. Thereafter the social worker received a voice mail from father indicating that DCFS was keeping the children "illegally" and asking for his rights as a parent to be preserved. Father stated that he was suffering emotional distress due to the actions of DCFS.
On May 8, 2019, with both parents present with counsel, the juvenile court conducted a hearing on the section 387 supplemental petition. Mother and father both entered denial pleas. The court found a prima facie case for detaining the children, and that father had made no effort to address the issue of domestic violence through programs or services. The court noted that while both parents engaged in violence, father's actions were more serious. The court detained the children from father.
By way of a corrected order, on May 24, 2019, the court released the children to the home of mother. DCFS requested a stay of the release, which the court denied. The children were released to mother's care with a safety plan that she reside in a shelter or approved DCFS housing and that she obtain a restraining order. The court ordered monitored visitation for father.
Temporary restraining orders
On May 8, 2019, father filed a request for temporary restraining order against mother. Father asserted that mother had repeatedly kicked him in the head while he was driving, and that she had taken his car and driven it without his permission. Father's request was granted on May 8, 2019. Father was named as the protected person, and mother was the restrained person. Mother's request for temporary restraining order against father was also granted. Both orders were to expire on July 16, 2019.
On July 16, 2019, the juvenile court granted a restraining order protecting mother and all three children from father. The order remains in effect until July 16, 2022. Father left the courtroom before the juvenile court ruled on the restraining orders, and father's counsel did not request a permanent restraining order against mother, resulting in the expiration of father's temporary order.
Father's motion to represent himself
On July 9, 2019, the juvenile court commenced an adjudication hearing on the section 387 petition. Mother and father were present and represented by separate counsel.
At the beginning of the hearing, father interrupted and spoke over the court. Before reaching any substantive issues, the court had reprimanded father that there are rules and protocols in the courtroom that must be followed or the court would "ask the deputy to take you out of the courtroom."
The court proceeded to address father's request to represent himself. The court addressed the standard for self-representation in juvenile court, which is that a parent "does have the right to represent [himself] at a dependency hearing as long as the court can ensure that the waiver of the right is knowing and voluntary and as long as it won't disrupt the proceedings such that the child's rights . . . [to] a prompt resolution of the custody status is not prolonged or disrupted." The court proceeded to question father as to his understanding of the rights father was waiving. As the court questioned father, father stated, "give me a copy of the form and I'll tell you if I understand it or not." Father also inquired whether he was being criminally charged. During the colloquy that followed, simultaneous speaking by the court and father, was interrupted by the court reporter. Father claimed to have a video that would prove his "innocence." The court again attempted to explain that "we do not deal with innocence in this courtroom. We do not deal with criminal liability in this courtroom." Following another series of interruptions by father when the court was speaking, the court stated: "This is very irrelevant to the issues that I need to decide right now. You have done this more than once in this conversation. I find that very disruptive and I find that it will unduly prolong these proceedings if you do represent yourself and you continue to go off on tangents, such as your criminal liability, such as whether or not your lawyer is prepared for this hearing." The court found father's constant interruptions to be "inconsistent with [his] children's rights to have an expeditious resolution of this custody proceeding." The court further found that father did not make a knowing waiver of his rights, as father did not appear to know what rights he had given up except for the right to counsel. The court denied father's motion to represent himself.
Father had filled out an advisement and waiver of counsel form.
Following the court's denial, father requested to "change venue" and accused the court of having "a hearing problem." Father continued verbalizing despite the court's repeated efforts to respond. The court reporter again interrupted the simultaneous speaking as it was impossible to keep the record. Father then accused the court of bias. When the court indicated that it was going to leave the courtroom, father responded, "I'm going to walk out."
The adjudication was continued to July 16, 2019.
Adjudication on section 387 petition
At the continued adjudication on the section 387 petition on July 16, 2019, mother and father were present with separate counsel. Both parents testified as to the domestic violence of April 14, 2019. Following argument by counsel the court found that while both parties participated in the violence, father was "more of a perpetrator than the mother." The court found that father put mother's life at risk when he backed up the car when she was "halfway in and halfway out." While mother may have provoked the incident, father "took it to very extreme violent levels." The court sustained the supplemental allegation, and found the prior dispositional order inadequate to protect the children. Over the objection of DCFS, the court permitted the children to remain in mother's custody. The children were detained from father. The court explained its disposition as follows: "I believe that he was the perpetrator in the domestic violence events. Also, he has taken no responsibility whatsoever for the actions."
Mother was granted family maintenance services and father was granted family enhancement services. Father was granted monitored visitation, with a minimum of three visits per week, and mother was not to act as monitor. The visits were not to be held in the family home. Father was permitted additional visits if the monitor was available, and DCFS had discretion to liberalize the visits.
Restraining orders
Following disposition, the court addressed the restraining orders, beginning with father's restraining order against mother, although father had already left the courtroom. Father's counsel stated, "Your Honor, based on my client's statements during his testimony, it is not clear that he wishes to pursue the permanent restraining order, so I will not [request a permanent restraining order]."
Mother's counsel indicated that mother sought a permanent restraining order, and that father had been served with the request. Over father's counsel's objection, the court signed the permanent restraining order, with father as the restrained person, and mother and the children as protected persons. The court inquired, "Does it have an appropriate carve-out for visitation consistent with the court's order?" Mother's counsel indicated, "I did attach a JV-205." The court signed the permanent restraining order.
Father's counsel objected that father had not had any visits with his children in a couple of months, and asked DCFS to continue to make efforts to create a written visitation schedule. The court pointed out that it was unfortunate that father had left the courtroom, stating "Without an approved monitor, he does have to work with [DCFS] for visits. And if he is not being cooperative with [DCFS], the visits are not going to take place."
DCFS again requested a stay of the order releasing the children to mother, which the juvenile court denied.
Father's appeal
On July 16, 2019, father filed his notice of appeal from the jurisdictional and dispositional orders of that date.
DISCUSSION
Father argues that the juvenile court's order denying his Faretta motion was reversible error. He further argues that the trial court erred by including the children in mother's restraining order and by omitting a specified visitation schedule in that order. We address each contention separately below, and conclude that no reversible error occurred.
Following the filing of father's opening brief, DCFS submitted a letter indicating it was not the proper respondent in this appeal. The Los Angeles County Superior Court also filed a brief indicating it did not believe it had standing to file a brief in this matter. Thus, mother is the respondent on appeal.
I. Disentitlement doctrine
Mother urges that we apply the disentitlement doctrine to bar father from seeking relief. The disentitlement doctrine allows an appellate court to "stay or dismiss an appeal by a party who has refused to obey the trial court's legal orders." (In re A.K. (2016) 246 Cal.App.4th 281, 284 (A.K.).)
"'Appellate disentitlement "is not a jurisdictional doctrine, but a discretionary tool that may be applied when the balance of the equitable concerns make it a proper sanction . . . ." [Citation.]'" (In re A.K., supra, 246 Cal.App.4th at p. 285.) "'"The disentitlement doctrine is based on the equitable notion that a party to an action cannot seek the assistance of a court while the party 'stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]' [Citation.] A formal judgment of contempt, however, is not a prerequisite to exercising [an appellate court's] power to dismiss; rather, we may dismiss an appeal where there has been willful disobedience or obstructive tactics. [Citation.]"'" (Id. at pp. 285-286.) "'In dependency cases, the doctrine has been applied only in cases of the most egregious conduct by the appellant, which frustrates the purpose of dependency law and makes it impossible to protect the child or act in the child's best interests. [Citations.]'" (Id. at p. 285.)
In A.K., the father threatened social workers with physical harm, refused to answer questions, told a social worker that he would not do anything the social worker requested of him, and left the court without notifying his lawyers in advance. In addition, he failed to drug test, thereby preventing the juvenile court from determining if the drug-related allegations of the petition were true. (A.K., supra, 246 Cal.App.4th at p. 284.) Based on the father's actions, neither his attorney nor the court could determine whether father was an offending parent or what services, if any, could enable him to reunify with his daughter. (Id. at p. 286.) The A.K. court noted that while it is not unusual for a parent to fail to cooperate fully with DCFS and the juvenile court, the father in that case showed "a pervasive indifference to the child's safety and to the amelioration of the conditions giving rise to the dependency." (Ibid.) In his appeal, the father challenged the sufficiency of the evidence regarding the claim that he suffered from substance abuse such that removal was the only means of protecting his child. Based on the father's refusal to drug test and refusal to participate in services, he "frustrated, if not paralyzed, the ability of [DCFS], the court, and his own attorney to obtain the information necessary" to proceed with the case. (Ibid.)
Father's actions here have shown disregard for the court and its orders. In addition, father has displayed anger and used profanity with the social workers. Although father's actions have been egregious, he has not entirely undermined the ability of this court to determine the issues before us. Under the circumstances, we decline to impose the discretionary doctrine of disentitlement. II. Faretta motion
A. Whether the denial of father's Faretta motion is reviewable
Mother argues that father failed to appeal from the order denying his Faretta motion, therefore the issue is not properly before this court. Father's notice of appeal specifies that father appeals from the jurisdictional and dispositional orders of July 16, 2019. Father's notice of appeal does not mention any order made on July 9, 2019, the date of the court's denial of father's Faretta motion.
1. The denial of father's Faretta motion was independently appealable
Under section 395, a dispositional order is an appealable judgment, and all subsequent orders are directly appealable without limitation except orders setting a section 366.26 hearing. (§ 395; In re Jesse W. (2001) 93 Cal.App.4th 349, 355 (Jesse W.).) Thus, "an unappealed . . . postdisposition order is final and binding and may not be attacked on appeal from a later appealable order. [Citations.]" (Jesse W., at p. 355.) In other words, "'[a] challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.' [Citation.]" (Ibid.)
The initial dispositional order in this matter was made on September 11, 2018. Father did not appeal from the juvenile court's July 9, 2019 order denying his Faretta motion. Thus, under the authority set forth above, that order is final and binding.
Father argues that the order denying the Faretta motion was "part and parcel" of the adjudication on the supplemental petition. Father argues that until the juvenile court ruled on the supplemental petition, father did not know whether he would need to appeal from the order denying the Faretta motion, because he was not yet aggrieved. Father cites In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1560 (Nachelle S.) for the proposition that a party not aggrieved by an order has no standing to appeal.
We find Nachelle S. to be distinguishable, as it involved a mother attempting to appeal the minor's right to a court order concerning visitation with her sibling. (Nachelle S., supra, 41 Cal.App.4th at p. 1560.) In this matter, father was the only party aggrieved by the court's denial of his Faretta motion. Father cites no case law suggesting that the denial of a postdisposition Faretta motion is not an appealable order. Nor did he have to wait for the ruling on the supplemental petition in order to determine if he was aggrieved. His children were already under the jurisdiction of the juvenile court, and he was already subject to dispositional orders.
We reject father's argument that the denial of the Faretta motion was not independently appealable because the juvenile court had not yet ruled on the disposition issues in the supplemental petition. The initial disposition order in this case had previously been entered, and most subsequent orders were appealable pursuant to section 395 as "order[s] after judgment." (§ 395, subd. (a)(1).) Father cites no authority for his position that a supplemental petition negates the appealability of postdisposition orders.
2. Father's notice of appeal was deficient
Father's notice of appeal was filed on July 16, 2019, and specified that it was an appeal from orders made on that date. The time to appeal the July 9, 2019 order had not yet passed, thus father could have included the July 9, 2019 order in his notice of appeal. He did not do so. "Generally, we must liberally construe a notice of appeal in favor of its sufficiency." (Cal. Rules of Court, rules 8.100(a)(2), 8.405(a)(3); In re J.F. (2019) 39 Cal.App.5th 70, 75 (J.F.).) A notice of appeal is sufficient "if it identifies the particular judgment or order being appealed." (Rule 8.405(a)(3).) However, "there are limits to our ability to liberally construe a notice of appeal." (J.F., at p. 76.) A notice of appeal will not be considered adequate "'if it completely omits any reference to the judgment being appealed.'" (Ibid.) Because father's notice of appeal omits any reference to the court's orders of July 9, 2019, it appears to be insufficient to raise the order denying father's Faretta motion.
However, in certain cases we are permitted to liberally construe a notice of appeal to include orders that would have been timely appealed at the time the parent's notice of appeal was filed. (See In re Madison W. (2006) 141 Cal.App.4th 1447, 1450 [notice of appeal citing termination order liberally construed to include denial of section 388 petition where notice of appeal would have been timely as to the denial of the parent's section 388 petition].) We find that we need not decide whether the exercise of such discretion is appropriate in this matter. Even if we exercised our discretion to review it, the order is not reversible as the juvenile court did not abuse its discretion in denying the motion.
B. The juvenile court did not abuse its discretion
Section 317, subdivision (b) requires that the court appoint counsel for a parent when the parent is financially unable to afford counsel and the child may be placed out of the parent's home. The statute makes an exception where "the parent or guardian has made a knowing and intelligent waiver of counsel." (§ 317, subd. (b).) Thus, in certain circumstances, a parent has a statutory right to self-representation.
However, unlike in criminal cases, a parent in a juvenile dependency case does not have a constitutional right to self-representation. (Angel W., supra, 93 Cal.App.4th at pp. 1082-1083.) Thus, the parent's right to self-representation must be "balanced against other parties' rights." (A.M., supra, 164 Cal.App.4th at p. 925.) In particular, "the parent's exercise of the statutory right of self-representation could affect the child, who also has rights requiring protection." (Ibid.) Due to the underlying purpose of the dependency law, "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." (Ibid.) "A parent's disruptive behavior may be sufficient to deny a request for self-representation." (Id. at p. 926.)
An order denying a parent's request to represent himself is reviewed for abuse of discretion. (A.M., supra, 164 Cal.App.4th at p. 924.)
Here, the court properly articulated the standard for such a motion in a dependency matter, stating that a parent "does have the right to represent [himself] at a dependency hearing as long as the court can ensure that the waiver of the right is knowing and voluntary and as long as it won't disrupt the proceedings such that the child's rights . . . [to] a prompt resolution of the custody status is not prolonged or disrupted." Following a lengthy and contentious exchange between father and the court, the court found father's demeanor to be "inconsistent with [his] children's rights to have an expeditious resolution of this custody proceeding."
The court's determination that father was argumentative and disruptive is supported by the record. Father repeatedly and contentiously interrupted the court to the point where the court reporter could not record the proceedings. In addition, father became so heated that he walked out of the courtroom before the proceedings had been completed for the day. These actions are not conducive to an expeditious resolution of the matter. Under the circumstances, if we were to review this decision, we would not undermine the juvenile court's discretion to deny father's Faretta motion.
In light of the conclusions we have reached in this section, we do not address the parties' arguments as to whether any error by the juvenile court would have been prejudicial.
III. Restraining order
Father contends that the juvenile court erred in issuing the restraining order in favor of mother and the children. First, he argues that the juvenile court erred in including the children as protected persons. Further, he argues that the visitation attachment to the restraining order erroneously omitted a visitation schedule, instead simply ordering "monitored visits." We address each contention below, and conclude that no error occurred.
A. Applicable law and standard of review
Under section 213.5, a juvenile court has the authority to issue an order "enjoining any person" from "contacting, either directly or indirectly, . . . coming within a specified distance of, or disturbing the peace of" a child or parent. (§ 213.5, subd. (a).) Issuance of a restraining order does not require "evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child." (In re B.S. (2009) 172 Cal.App.4th 183, 193.) Nor does it require a reasonable apprehension of future abuse. (Ibid.) Instead, "the better analogy is to Family Code section 6340, which permits the issuance of a protective order under . . . if 'failure to make [the order] may jeopardize the safety of the petitioner . . . .' [Citations.]" (Id. at p. 194.)
In reviewing a restraining order, "'we view the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the juvenile court's determination. If there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed.' [Citations.]" (In re C.Q. (2013) 219 Cal.App.4th 355, 364.) Other courts have held that an order granting a restraining order is reviewed for abuse of discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.)
B. Inclusion of the children
Father argues that inclusion of the children in the restraining order was overbroad because there was no substantial evidence that father had harmed the children. However, such evidence is not necessary in order for a juvenile court to grant a restraining order. Instead, the relevant inquiry is whether failure to issue such an order may jeopardize the safety of the petitioner. (In re B.S., supra, 172 Cal.App.4th at p. 194.)
Here, there was sufficient evidence that failure to issue the restraining order in favor of the children might jeopardize their safety and the safety of mother. The juvenile court sustained allegations that the parents had engaged in domestic violence in the children's home. This initially included incidents in which father struck mother and pushed her to the ground. When family maintenance services were ordered, father did not comply with the court-ordered service plan. Both Hafsa and Ivo stated that father was "mean" to mother and fought with her. In rendering its decision on the supplemental petition, the juvenile court found that father's actions put mother's life at risk when he backed up the car while she was "halfway in and halfway out." The court found that father exhibited "very extreme violent levels." The court believed father to be the perpetrator in the domestic violence events.
Throughout the proceedings father accepted no responsibility for the domestic violence in the home. He also engaged in verbally abusive interactions with the social workers in which he used obscenities. Further, he was unable to maintain proper decorum in the courtroom. The record amply demonstrates father's inability to control his anger. The juvenile court could reasonably conclude, based on father's inability to control himself, that he might be a threat to the children's safety. Thus, there was sufficient evidence to support the inclusion of the children as protected persons under the restraining order.
C. Failure to include a visitation schedule
The restraining order form had boxes 5(a)(2) and 5(c) checked, indicating that there was a relevant visitation order. The visitation order attached to the restraining order notes that there is a requirement of monitored visits. However, while the form allows the preparer to check boxes indicating specific weekends or days to be reserved for such visits, the boxes on the form are blank. Father argues that it was prejudicial error for the juvenile court to fail to include a specific visitation schedule. Father argues that as it stands, mother may prevent father from visiting his children. Father asks that the visitation portion of the restraining order be vacated with direction to the trial court to order reasonable visitation.
"The juvenile court has the sole power to determine whether visitation will occur." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009). However, the juvenile court "may . . . delegate discretion to determine the time, place and manner of the visits." (Id. at p. 1009.) Under these standards, the juvenile court's visitation order was sufficient. The court granted father monitored visitation, with a minimum of three visits per week. Mother was not to act as monitor, and the visits were not to be held in the family home. Father was permitted additional visits if the monitor was available, and DCFS had discretion to liberalize the visits. Thus, the trial court granted father reasonable visitation. Mother could not prevent the visits from taking place.
The juvenile court's order implicitly delegated to DCFS the authority to determine the time, place, and manner of the visits. Father was obligated to work with DCFS to determine the time and place and to agree upon an appropriate monitor for the visits.
As mother points out, father was not cooperating with DCFS in furtherance of his visitation rights. In addition, after the adjudication on the section 387 petition, father voluntarily left the courtroom before the court was able to address issues concerning the restraining order and visitation. When father's counsel objected that father had not had any visits with his children in a couple of months, the court pointed out that it was unfortunate that father had left the courtroom. The court explained that "[w]ithout an approved monitor, he does have to work with [DCFS] for visits. And if he is not being cooperative with [DCFS], the visits are not going to take place." Because father was not present, the court could not set up a visitation schedule, or discuss appropriate monitors for the visits. Under the circumstances the juvenile court did not err in leaving these details to DCFS to be determined at such time as DCFS could work cooperatively with father.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST