San Mateo County Department of Social Services v. Kathy T.

Opinion

LOW, J.* In this appeal from a dispositional order removing the child from the mother’s custody, appellant challenges the jurisdictional finding of dependency (Welf. & Inst. Code, § 300, subd. (b)), contending that she did not constitutionally waive her rights to a contested jurisdictional hearing. We affirm and hold that in a jurisdictional proceeding, the court must advise the parents of their due process rights to a hearing and must obtain an express personal waiver of those rights if the hearing is to proceed without further evidence. Error in obtaining the waiver is subject to harmless error analysis.

Kathy T. gave birth to a daughter, Monique, on June 2, 1991. Both the mother and child tested positive for cocaine. The mother admitted to health care providers that she drank beer and smoked crack cocaine the day before the delivery. She also admitted she did not seek any prenatal care. The mother herself had been physically abused by her own mother, Jacqueline G., with whom she lives in a two-bedroom apartment, together with her [1375]sisters’ 5 children, ages 11 to 18. She was totally unprepared to care for the child. She did not have a crib for the baby and had made no definitive living arrangements. The mother was uncertain whether her mother would allow her to have one of the two bedrooms, since that would displace the children already living there. The only alternative was to move in with her current boyfriend, who is not the child’s father. Attempts to contact the boyfriend were unsuccessful since his telephone was disconnected. Kathy was evaluated by a hospital social worker as “intellectually limited.”

The child suffered severe medical problems from the drug use and was placed in a home for medically fragile children. She is underweight, has difficulty feeding, vomits frequently and has diarrhea. The baby requires frequent medical care and a rigid feeding schedule.

At the June 6 detention hearing, the mother, through her counsel, waived the reading of the petition, advice of rights and explanation of the proceedings. The child was detained and placed in foster care. Later, at the same hearing, the mother again, through counsel, submitted the matter for a jurisdictional determination based only on the petition and the detention memorandum. The court did not advise the mother of the rights she would be giving up upon the submission. The court sustained the dependency petition, finding tiie parent was unable to provide regular care to the minor because of her mental illness, developmental disability, or substance abuse (Welf. & Inst. Code, § 300, subd. (b)). In its disposition order, the court ordered the foster care placement to be continued, and ordered the mother to participate in individual therapy, parenting classes, drug rehabilitation and other programs. A 60-day interim review was scheduled for September 4, 1991.