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A.W. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Feb 13, 2020
A159048 (Cal. Ct. App. Feb. 13, 2020)

Opinion

A159048

02-13-2020

A.W., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU et al., Real Parties in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1700913)

A.W. (mother), appearing in propria persona, has filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging the juvenile court's order terminating reunification services as to her now nine-year-old daughter (K.P), and setting a Welfare and Institutions Code section 366.26 hearing on March 4, 2020. Mother's petition fails to comply with the rules of court in numerous respects. While the matter could be disposed of on this ground, because of the significant interests of the mother and daughter in these proceedings, we have attempted to respond to mother's concerns insofar as we are able to understand them. Mother appears to argue that the court violated her right to due process by denying her request to represent herself, refusing to allow her to call witnesses and excluding her from the courtroom when her children were testifying. She also contends that the court erred in terminating reunification services and setting a section 366.26 hearing because the witnesses were not credible and the evidence established that she fulfilled all the requirements of her case plan. We find no error and shall deny mother's petition.

All statutory references are to the Welfare and Institutions Code unless otherwise noted.

Mother has three children who at one point were the subjects of these dependency proceedings. T.P., mother's older son, was returned home during the jurisdictional hearing and the petition as to him was later dismissed. The petition as to the middle son (H.P.) was reviewed at the same time as the petition as to K.P. and the court ultimately determined that setting a section 366.26 hearing as to him would not be in his best interest. Accordingly, H.P. is not a subject of these writ proceedings.

The motion to strike the extra-record attachments to mother's writ petition filed by the Contra Costa County Children & Family Services Bureau (the bureau) is granted.

Background

The daughter was initially removed from her home in August 2017. On March 8, 2018, the court sustained the allegations in daughter's dependency petition that mother had hit her and H.P. with a paddle, spoon or her hand and that mother has repeatedly left the children at home with caretakers for weeks at a time with no provisions for food or transportation and no working telephone. On August 14, 2018, the court issued a dispositional order removing daughter from mother's care and continuing her placement in foster care. The court ordered visitation and reunification services for mother. In a prior opinion, we affirmed the court's jurisdiction and disposition orders. (In re K.P. (Jan. 21, 2020, A155450) [nonpub. opn.].)

A contested six-month review hearing was set for December 14, 2018. In November 2018, the bureau filed a request to change the disposition order to eliminate visitation between mother and daughter. The hearing on the bureau's request was set for January 2019 and the contested review hearing was continued to the same date.

Although the matter was set for a six-month review, by the time of the hearing daughter would have been out of her mother's care for over a year. As set forth post, the review hearing ultimately was not concluded until almost a year later in November 2019, at which point the child had been out of the home for more than two years.

On January 25, 2019, mother filed a substitution of counsel purporting to represent herself. The court denied the substitution, finding that her request to represent herself was "untimely, not in the best interest of the case and would be a huge disruption."

The hearings commenced on January 29, 2019, with mother's testimony and was continued until March 5, 2019, for further proceedings. The hearings were continued again, however, for a period of almost three months while the court resolved an issue regarding the identification of a new presumed father.

Due to the recusal of the judge that commenced the review hearing in January, a mistrial was declared. The hearing was commenced anew before a new judge in July. In the meantime, the court received further briefing on mother's request for self-representation and ultimately denied the request. However, the court granted counsel's request to be relieved for medical hardship and a new attorney was appointed after mother failed to retain counsel.

Mother's suggestion that "the courts" erred by refusing to set aside "an adverse biased ruling" by the judge who later recused herself is too vague to be understood. In any event, the record establishes that the review hearing was conducted de novo before a different judge. Any potential bias of the recused judge would not have affected the outcome at the review hearing.

In advance of the hearing the social worker submitted a status review report recommending termination of reunification services and setting of a section 366.26 hearing. The report indicated that mother had repeatedly violated the court's instructions not to talk negatively to daughter about daughter's foster home and detailed the contentious relationship between mother and the bureau. Mother's case plan included four components: parenting class, psychological assessment, individual counseling, and anger management, all with approved providers. According to the status report, mother had not completed any of the requirements of her case plan. The report explains that mother reported completion of a psychological assessment but that the bureau had been unable to approve the provider because mother was refusing to sign a release allowing the bureau to speak with him. Similarly, mother reported engaging in individual therapy with a provider of her choice, but again refused to sign a release, thereby precluding the bureau from determining her progress. According to mother, the same provider concluded that she did not need to attend anger management. Finally, although mother had submitted an unsigned copy of a certificate of completion of a parenting class, she again refused to sign the release necessary for the bureau to confirm her participation and completion.

The continued hearing lasted for several days during which mother provided additional testimony and the social worker and the three children all testified. Mother was removed from the courtroom during the testimony by the two younger children pursuant to section 350, subdivision (b). The children's testimony was transcribed and read to mother immediately following their live testimony.

Section 350, subdivision (b) reads in relevant part: "The testimony of a minor may be taken in chambers and outside the presence of the minor's parent or parents, if the minor's parent or parents are represented by counsel, the counsel is present and any of the following circumstances exist: [¶] (1) The court determines that testimony in chambers is necessary to ensure truthful testimony. [¶] (2) The minor is likely to be intimidated by a formal courtroom setting. [¶] (3) The minor is afraid to testify in front of his or her parent or parents. [¶] After testimony in chambers, the parent or parents of the minor may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents."

On November 20, 2019, the court issued an order terminating reunification services and setting the section 366.26 hearing. The court detailed the history of the lengthy proceedings and emphasized that the purpose of the present hearing was not to reconsider the prior detention or jurisdiction findings, but to determine "whether it's safe to return the kids to their mom's care at this point." Ultimately, the court found that mother had "elected not to engage herself entirely in this process" and that because of her lack of substantial compliance with the case plan, "return of the children to the custody of their mother would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the children." While the court concluded that setting a section 366.26 hearing would not be in H.P.'s best interest, the court set a section 366.26 hearing for K.P. based on its belief that "there should be an attempt to have a . . . more permanent plan than foster care."

Discussion

1. Mother's due process rights were not violated.

Mother contends her right to due process was violated when the court denied her request to represent herself, refused to allow her to call witnesses and excluded her from the courtroom during her children's and the social worker's testimony.

Mother also suggests incorrectly that she was "blocked" from seeing some pages of the reporter's transcript. The section of transcript to which she refers clarifies, however, that the missing pages were "blocked" apparently for formatting reasons and expressly states that "Nothing is omitted" from the transcript. Mother also suggests that she was denied all medical and educational records for her children. The record reflects the court's agreement that she was entitled to that information and to discovery of responsive information. Her petition fails to explain, much less demonstrate, the respects in which the materials that were provided were inadequate.

As explained in our prior opinion, a parent's right to self-representation " 'is not absolute.' " (In re V.V. (2010) 188 Cal.App.4th 392, 399.) The court must " '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.' " (Ibid.; In re A.M. (2008) 164 Cal.App.4th 914, 925 [In dependency proceedings, a parent's right to self-representation "must always be weighed against the child's right to a prompt resolution of the dependency proceeding."].) Here, the court made specific findings that mother had been "very disruptive in hearings in which she was providing testimony" and "moderately disruptive in the remaining hearings;" mother lacks "the ability to display proper courtroom demeanor when the evidence is not to her liking or when other attorneys present arguments contrary to her point of view;" mother's "preoccupation with refuting the previous rulings will most likely prevent the children from having a prompt resolution" and mother's "uncontrollable courtroom behavior would act to the detriment of the children by unduly extending the length of these proceedings." Substantial evidence supports the court's findings, which in turn fully justifies the refusal to permit mother to represent herself.

Mother argues that the court wrongly refused to allow her to call as witnesses Patricia Lowe, the deputy county counsel representing the bureau, and Judith Lawrence, counsel for H.P. However, the court merely ruled that only her attorney could call witnesses. At the conclusion of the hearing, mother's attorney was asked whether he would be calling any additional witnesses. Over mother's strenuous objection, counsel expressly stated that he would not be calling the attorneys as witnesses. In her petition, mother questions the competency of the attorney "forced-upon" her by the court based on his failure to call these witnesses. "Whether to call certain witnesses is generally a matter of trial tactics" vested in the sound discretion of the attorney. (People v. Williams (1970) 2 Cal.3d 894, 905; People v. Harris (1993) 14 Cal.App.4th 984, 990 ["It is well established that trial counsel has the right to control the proceedings and make tactical decisions which are contrary to the expressed wishes of his or her client."].) Moreover, mother fails to explain what material testimony these witnesses had to offer, and it seems highly unlikely that either could have contributed anything relevant. So far as appears, counsel's decision not to call opposing counsel was entirely reasonable and did not prejudice mother or deny her any constitutional rights.

Mother's argument that she was improperly excluded from the courtroom during her younger children's testimony is similarly without merit. In response to a motion by H.P.'s attorney, the court ruled, "I am finding, based upon Ms. Lawrence's representation, that he [H.P.] would be intimidated and incapable of providing truthful testimony because of that intimidation. It would be difficult for him. But this doesn't mean he gets to testify in a vacuum, and that you are not aware of what is being said. [¶] Ms. Wood, he's going to testify in chambers, I'm granting the motion; however, you are entitled to readback of the entirety of his testimony, and you are able to have questions asked—and this is before you even start your cross-examination via Mr. Stern." The court acknowledged mother's concerns that her son was being "coached by people," but explained that "for the purposes of whether or not he's going to be able to feel comfortable and not afraid to testify, I have to ensure that that—that I get as accurate testimony as possible, and it sounds like 350(b), in-chambers testimony, is the only way that I can ensure he feels comfortable enough to testify." The court also found that to ensure the accuracy of K.P.'s testimony, she too should testify in chambers. The court informed mother that the court would follow the same procedure used to take her brother's testimony. The court did not abuse its discretion in so ruling and the record reflects that mother was kept fully informed of her children's testimony.

Finally, mother argues she was improperly removed from the courtroom during a portion of the social worker's testimony. The record reflects otherwise. During the course of the social worker's testimony, mother interrupted her attorney's cross-examination several times. The court repeatedly advised mother that she would be removed from the courtroom if she continued her disruptive behavior. When mother refused to comply, the court ordered her to step outside for 15 minutes. After 15 minutes, the court asked the bailiff to find mother, but she was not waiting in the hallway so the morning session continued in her absence. According to mother, she had left the hallway to use the restroom. Mother returned to the courtroom for the afternoon session. The court denied her request for a readback of the testimony she missed. The court explained, "She was asked to leave the courtroom after multiple admonishments to not speak out of order. This isn't a situation like a [350(b)] motion. Her behavior is what caused me to have to ask her to leave." The court did not abuse its discretion under the circumstances.

2. Substantial evidence supports the termination of reunification services and setting of a section 366.26 hearing.

Mother contends that the court erred in terminating reunification services and setting a section 366.26 hearing because the witnesses were not credible and because the evidence establishes that she fulfilled all requirements of her case plan. Mother reasserts her claim that her children were coerced into lying throughout the proceedings. As explained in this court's prior opinion, "Mother cites sections of the reporter's transcript to support her claim that the children were pressured to lie, but the trial judge heard the testimony and had the opportunity to weigh the credibility of the witnesses. At the conclusion of the jurisdictional hearing, citing much the same testimony, mother asked the court to strike H.P.'s testimony on the ground that it had been coerced. The court denied mother's request, stating that it found H.P. 'to be very, very credible.' The court did not find 'that in any way he was coerced' or that 'his testimony was involuntary.' " (In re K.P. (Jan. 21, 2020, A155450) [nonpub. opn.].) Similarly, in the present proceedings, the court detailed the testimony of K.P. and H.P. and expressly found their testimony credible. In contrast, T.P. was "kind of shaking" and appeared "somewhat visibly uncomfortable" when he testified. The court noted that his use of the word narcissistic, which he could not define, in reference to his brother suggested he was being coached by mother.

Mother also levels character attacks at the social worker who authored the review report and testified at the hearing. Mother's allegations, however, were aired before the court in connection with a motion to strike the social worker's testimony and the court rejected her claim of bias. The court noted that the witness was cross-examined about her 2007 conviction and explained that while the conviction may go to the weight of her testimony, it did not provide a valid basis to strike the entirety of her testimony. We find no error in the court's conclusion.

Finally, substantial evidence supports the court's finding that mother's progress "toward alleviating or mitigating the causes necessitating placement in foster care" had been minimal and demonstrated that returning daughter to mother's care would create a substantial risk of detriment. (§ 366.21, subd. (e)(1) ["The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental."].) Mother relies on unverified reports by her unapproved providers to support her claim that she completed the case plan as ordered by the court. However, when the court offered to permit one of the providers to testify by phone, mother agreed that the provider could confirm that he authored the report but she would not consent to any questions regarding the basis of his opinions. She concedes that she refused to sign a release permitting him to explain the basis for his opinions. The court warned mother that although the report would be admitted into evidence, absent a sufficient foundation that and other reports would not be afforded the weight she believed they were due.

With respect to the purported psychological evaluation submitted by mother, the court explained, "there is the report from Dr. Dahl which I've already indicated is not very lengthy. It does not go through what his specific qualifications are. There is really no CV attached. Nothing. It is what I will call somewhat of a cursory report. Number one, I am not entirely sure why this is called a non-confidential evaluation, but a number of the . . . impressions are conclusory. It doesn't give the information upon which the tests were actually administered. [¶] Usually there is a long list of not only what tests are administered but a number of other factors related to what the purpose of the test is, and really this is sort of this conclusory description all very positive to the mother, I'll concede that, but it's not necessarily supported by what I will call independent testing. So it's highly unusual, number one, to see an evaluation of this nature without more information. But when the Department really would like to have had further information or have him subject to cross-examination because he would purport to be the mother's expert witness, he was not—he did not come to give further credence to what was provided. [¶] Again, the section formulation, I am not even entirely sure what he's basing this on. But I will indicate there is nothing in this psychological evaluation that discusses any real understanding of all of the issues in this case, what was actually looked at, what—how many sessions actually occurred, the time that he spent with Ms. Wood, none of that is in this evaluation that I can see and it's truly one of the most what I would refer to as superficial evaluations. It does not get into the depth and that's what we need in a psychological evaluation."

With respect to the document purportedly from mother's individual therapy provider, the court stated, "The only comments I'll make about . . . Dr. Demanes, is that from the mother's own exhibit, he appears to be someone who was referred to on the referral list as an anger management treatment provider. It's fine that she chose to have him be her therapist. I am not sure entirely sure again what his qualifications would have been to be an actual psychotherapist, but the letters are almost repetitive in reading them, and again, I would indicate that they're somewhat conclusory, because it's not clear what he was basing his information on other than just speaking to Ms. Wood. And we all know that the benefit of letters from therapists really does have to in some ways shed what will provide some assurance that they are aware of the totality of what's going on, not just something that someone is telling them, because that means there is no independent way for them to truly evaluate the progress that they have made."

The trial court's finding that mother's evidence did not establish compliance with the case plan is entirely reasonable. Its contrary finding is supported by substantial evidence. There is no basis to set aside the order terminating reunification services and scheduling a section 366.26 hearing.

Mother's suggestion that the deputy county counsel violated the Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C.A. § 1320d et seq.), by subpoenaing the mental health care providers is without merit. As the trial court attempted to explain to mother, "[s]ubpoenas are merely orders to appear in court." --------

Disposition

A.W.'s petition for extraordinary writ is denied on the merits. (See Kowis v. Howard (1992) 3 Cal.4th 888, 894.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)

POLLAK, P. J. WE CONCUR: TUCHER, J.
BROWN, J.


Summaries of

A.W. v. Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Feb 13, 2020
A159048 (Cal. Ct. App. Feb. 13, 2020)
Case details for

A.W. v. Superior Court

Case Details

Full title:A.W., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Date published: Feb 13, 2020

Citations

A159048 (Cal. Ct. App. Feb. 13, 2020)