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In Re G. P. et al., Persons Coming Under the Juvenile Court v. G. P

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


December 8, 2010

IN RE G. P. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
G. P., DEFENDANT AND APPELLANT.

G. P., father of the minors, appeals from the judgment of disposition. (Welf. & Inst. Code,*fn1 §§ 360, 395.) Appellant contends reversal is required because the juvenile court failed to inform him of his rights and take a personal waiver prior to the jurisdiction hearing, thereby denying him due process. We affirm.(Super. Ct. No. J02301)

The opinion of the court was delivered by: Robie J.

In re G.P. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

FACTS

In 2001, K. B., age nine, was removed from the custody of the mother and appellant, who was her boyfriend at the time, due to domestic violence in the home, inappropriate punishment, and injuries inflicted on the minor. The petition was dismissed.

In 2003, K. B., age 11, and Ge. P., age 17 months, were removed from appellant and the mother due to neglect and domestic violence. That dependency was terminated in 2005.

In June 2009, K. B., age 17, Ge. P., age 7, and J. P., age 4, were removed from the custody of mother and appellant due to appellant's arrest on violence-related warrants, the mother's hospitalization with severe injuries inflicted by appellant, parental substance abuse, and chronic neglect of the minors. Appellant was present at the detention hearing and waived reading of the advisement of rights and the possible consequences of any plea.

At the jurisdiction hearing on July 8, 2009, only the mother was present. She was advised of her rights and entered a plea of no contest. The juvenile court sustained the petition. At the next hearing appellant was not present and his counsel requested a contested jurisdiction hearing. Appellant remained in custody; however, the social worker did make service referrals for treatment for him.

Appellant appeared at the October 14, 2009, hearing, having been released from custody. Appellant was in residential treatment and counsel requested additional time to confer with appellant regarding subpoenaing witnesses. The court granted the continuance and admonished appellant to meet with counsel and go over the case so witnesses could be subpoenaed.

At the next hearing, appellant expressed a wish to continue the case to hire counsel. The court denied the request as untimely. Appellant asked the court to explain what the current and prior hearings were about. The court described the jurisdiction and disposition process and clarified that the present hearing was for jurisdiction. The court also confirmed that appellant could, at a later date have counsel relieved and either hire counsel or proceed on his own behalf, but that he would not be permitted to proceed on his own behalf in the current contested jurisdiction hearing. The hearing proceeded without objection to admission of the report in evidence and without witnesses or other evidence. The court asked if the matter was submitted or if the parties wished to argue. Counsel for appellant stated appellant's position was that he objected to the court taking jurisdiction. The court, recognizing the difficulties faced by appellant in actively contesting the case due to his pending criminal case, sustained the petition and set a disposition hearing.

Appellant did not appear at the disposition hearing in January 2010. Counsel expressed concerns about the inclusion of a domestic violence program in the case plan because the program would probably require admissions which appellant could not make with the criminal case pending. The court acknowledged the concern and adopted the recommended findings and orders.

DISCUSSION

Appellant contends reversal is required because the juvenile court did not advise him of his rights including the right to counsel; the right not to incriminate himself; the right to confront and cross-examine the preparer of the reports; the right to subpoena witnesses and present evidence to the court; the right to receive reports, discovery, and documents filed with the court; the right to a hearing on the petition; and the right to have the minors returned to his custody within two days if the court did not sustain the petition. (Cal. Rules of Court, rules 5.534(k), 5.682(b).) Appellant argues the failure to inform him of these rights and to take a personal waiver of the rights prior to the jurisdiction hearing was a denial of due process.

Although civil in nature and designed to protect the child rather than to prosecute the parent, dependency proceedings implicate fundamental rights of parents and those rights may not be abridged without due process of law. (In re Patricia T. (2001) 91 Cal.App.4th 400, 404; In re Monique T. (1992) 2 Cal.App.4th 1372, 1376-1377.) To provide due process, California Rules of Court, rules 5.534 and 5.682 provide that the court must advise parents of their rights. If the parent admits the allegations of the petition or enters a submission on the question of jurisdiction, the court must find the parent knowingly and intelligently waived those rights. (In re Monique T., at pp. 1376-1377; Cal. Rules of Court, rule 5.682(f)(3), (4), (5).)

Here, appellant waived advisement of his rights at the detention hearing. The court did not readvise appellant at the jurisdiction hearing or take a waiver either of the advisement or of the rights. We conclude the error, if any, was harmless for several reasons. (In re Monique T., supra, 2 Cal.App.4th at pp. 1376-1377.)

First, the juvenile court had taken jurisdiction over the minors when the mother admitted the allegations of the petition establishing her lack of parenting skills and could have proceeded to disposition even if appellant were blameless. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1554.)

Second, it is unclear whether appellant actually submitted on the petition within the meaning of California Rules of Court, rule 5.682(f), which would have required a waiver of rights. (See In re Richard K. (1994) 25 Cal.App.4th 580, 588-589; In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.) Appellant waived advisement of his rights at the detention hearing, but counsel set a contested jurisdiction hearing which was continued to permit appellant and counsel to consult on potential witnesses and have a chance to subpoena them. Appellant was also dealing with criminal charges which arose from the events that triggered the minors' removal. As a result, testifying on his own behalf would not be in his best interests because it could implicate his Fifth Amendment rights. Nothing in the discussion between the court and counsel suggests appellant was submitting on the report and counsel specifically stated appellant opposed jurisdiction. If appellant did not merely agree to the court's consideration of the report, thereby making the finding of jurisdiction the only foreseeable outcome, then the hearing was contested and no waiver of rights was required.

Third, even if the hearing is considered a submission within the meaning of California Rules of Court, rule 5.682(f) and the court erred in failing to advise appellant of his rights and take a waiver of those rights before finding jurisdiction, the record shows under the totality of the circumstances that the submission was a voluntary and intelligent choice among the alternative courses of action. (In re Patricia T., supra, 91 Cal.App.4th at pp. 404-405.) Appellant waived advisement of his rights at the detention hearing. He was represented by counsel at all times and demonstrated an understanding of the parameters of the right to counsel. He was fully informed by the court of the nature of the proceedings. He had an opportunity to consult with counsel about possible witnesses on his behalf and subpoena those witnesses. Counsel's strategy at the hearing was clearly a product of such consultation and the recognition of the impact of appellant's pending criminal case. The evidence supporting the allegations against appellant, particularly the allegations of domestic violence which resulted in the mother's hospitalization, was strong and exercising his right to a contested hearing would have been of little help if appellant did not testify to counter that evidence. In light of the circumstances, failure to obtain an express waiver of appellant's rights did not invalidate appellant's submission of the jurisdictional issues on the evidence presented by the San Joaquin County Human Services Agency.

DISPOSITION

The judgment is affirmed.

We concur:

RAYE , Acting P. J.

BUTZ , J.


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