In re A.U.

Filed 7/12/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired Judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.

Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.

Carl Fabian, under appointment by the Court of Appeal, for Minor.

Sonia U. appeals from a judgment terminating parental rights to her daughter, A.U., under Welfare and Institutions Code section 366.26.^[1] She contends the court violated her constitutional right to due process of law when it appointed a guardian ad litem on her behalf without first providing her with notice and an opportunity to be heard. Sonia also maintains that neither the court nor the social services agency met its duty to inquire into A.U.'s American Indian heritage, and that they did not provide notice to the child's prospective tribes and the Bureau of Indian Affairs (BIA) in accordance with the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.; § 294; Cal. Rules of Court, rule 1439(f)).^[2]

We hold that the court erred when it appointed a guardian ad litem to act on Sonia's behalf without first providing her with notice and an opportunity to be heard regarding the appointment. We reject respondent's argument that evidence of mental illness supports a finding that Sonia was incompetent. However, because there is no suggestion in the record that the error affected the dependency proceedings or that Sonia's counsel and guardian ad litem did not protect her rights, we conclude that the error was harmless beyond reasonable doubt. We also conclude that the ICWA notice was deficient. Accordingly, we reverse and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND

On January 20, 2005, the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), alleging that newborn A.U. was at risk of serious physical harm or illness due to her mother's inability to provide regular care. A.U.'s mother, Sonia, had a history of mental illness and drug abuse and was living in a residential care facility for mentally disabled adults. Over the previous 12 years, the Agency had removed five other children from her custody. Sonia was not aware of her pregnancy until she gave birth to A.U. at the care facility. The baby was detained in foster care after her release from the hospital. In March, A.U. was placed in the home of a maternal aunt (Aunt) who had been caring for three of A.U.'s siblings for more than 10 years.

In 1993, the Agency removed Sonia's two children from her care and initiated dependency proceedings. At that time, possibly due to methamphetamine use, Sonia was experiencing auditory hallucinations that told her to abuse her children. Another infant was detained at birth in 1994. After reunification services proved ineffective, the juvenile court placed all three of these children in long-term foster care with Aunt in 1995. Two other children, born in 1996 and 1998, were also the subjects of dependency proceedings. They were later adopted together by a nonrelative family.

The Agency was unable to identify A.U.'s father from the limited information Sonia provided.

At the detention hearing, the court appointed an attorney from the alternate public defender's office to represent Sonia, who was not present. The court advised Sonia's attorney to request a special hearing if, after meeting with Sonia, her attorney believed that the appointment of a guardian ad litem on Sonia's behalf would be appropriate. The court deferred findings on the applicability of the ICWA, detained A.U. in foster care, and ordered the Agency to provide Sonia with supervised visitation and appropriate reunification services.

Sonia was not present at the February 10, 2005 jurisdiction/disposition hearing. The court continued the hearing at the request of Sonia's attorney, who had not yet met with her. On March 1, Sonia's attorney asked the court to appoint a guardian ad litem for Sonia. She reported that Sonia had made inconsistent statements about how she wished to proceed, and that she was unable to provide the name of her treating physician. Sonia's attorney did not believe that Sonia could assist her in determining how to proceed with the case. Pursuant to her attorney's request, the court appointed a guardian ad litem for Sonia and continued the hearing to April 4. Sonia was not served with the appointment order.

Sonia did not appear at the continued jurisdiction/disposition hearing. Her attorney requested a continuance because neither the attorney nor Sonia's guardian ad litem had been able to meet with Sonia before the hearing. The court denied the motion. Based on the evidence submitted in the detention and jurisdiction reports, the court found by clear and convincing evidence that the allegations of the section 300 petition were true. The court continued the disposition hearing to May 9.

At the disposition hearing, the Agency requested that the court bypass reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11).^[3] The court took judicial notice of the findings of facts and conclusions of law made in the dependency cases of A.U.'s siblings and found that Sonia had not made a reasonable effort to treat the problems that led to the removal of A.U.'s siblings from her care. The court denied Sonia reunification services and set a permanency plan hearing under section 326.66.

On May 11, Sonia's guardian ad litem filed a notice of intent to file a writ petition under rule 38.1. The alternate public defender's office contracted with outside associate counsel to assist with the writ. On June 13, associate counsel filed a letter with this court stating that, based on his review of the record, there were no viable issues for an extraordinary writ and that no writ petition would be filed.

On September 6, the Agency requested a 60-day continuance of the section 366.26 hearing to investigate A.U.'s Indian heritage and to provide proper notice of the permanency plan hearing to the Bureau of Indian Affairs (BIA) and to any tribes. The court continued the hearing to November 8. The Agency reported that A.U.'s great-great-great grandfather was a member of the "Huiechol" tribe of Mexico. A form attached to the report, Judicial Council form JV-135, stated that the great-great-great grandmother's tribe was located in "Rio Colorado – Fort Yuma, Santa Ysabel" and that she had attended an Indian school in Banning, California, in 1917. The Agency mailed notice of the November 8, 2005 permanency plan hearing to the BIA on November 4.

On November 8, on behalf of the Agency, county counsel requested a second 60-day continuance in order to provide notice to the tribes located in the areas mentioned in the Judicial Council form. The court denied the motion and went on to find that the ICWA did not apply because the only tribe that was specifically identified was located in Mexico. On Sonia's behalf, her attorney requested a trial on the Agency's recommendation to terminate her parental rights.

In its report prepared for the permanency plan hearing pursuant to section 366.26, the Agency reported that A.U. was in good health, and that she was meeting developmental milestones. She showed signs of bonding with Aunt. A.U. was attached to her three siblings who also lived with Aunt. Aunt loved A.U. She wanted to adopt her in the event parental rights were terminated. Aunt planned to allow Sonia to continue to have supervised visits with A.U. and her other children. In addition to being specifically adoptable, the social worker opined that A.U. was generally adoptable due to her age, good health and appropriate development.

The social worker believed that Sonia was seriously mentally ill and unable to care for A.U. Sonia had been hospitalized periodically due to her mental health condition. She suffered from extreme mood swings and resisted psychiatric treatment. Sonia did not take her medication consistently. She was unable to manage her own affairs and was dependent upon a representative payee to ensure that she had appropriate food, shelter and clothing.

Based on Sonia's past history of services, the social worker concluded that Sonia was unable or unwilling to improve her circumstances. Sonia loved her children but lacked basic parenting skills. For example, she had to be shown how to give A.U. a bottle. On another visit, Sonia laid A.U. on a couch and then became distracted. The social worker intervened to show Sonia how to keep the baby from falling.

Sonia did not attend the permanency plan hearing. The parties submitted on the report. Counsel did not present any affirmative evidence on Sonia's behalf. The court made the findings required under section 366.26 and terminated parental rights. On Sonia's behalf, the guardian ad litem filed notice of this appeal.

MOTIONS ON APPEAL

On April 11, 2006, Sonia filed a motion requesting that this court take judicial notice of the United States Department of the Interior's lists of federally recognized Indian tribes and designated tribal agents for service of notice, and an article about the history of federally funded Indian schools. On April 28 and May 24, the Agency filed motions to augment the record^[4] with a social worker's report dated May 24, 2005, and a declaration of a superior court clerk.^[5]

" '. . . "Making the appellate court the trier of fact is not the solution.". . .' " (In re I.G. (2005) 133 Cal.App.4th 1246, 1253; see In re Zeth S. (2003) 31 Cal.4th 396.) Because we remand for compliance with ICWA, the Agency's motions to augment the record and Sonia's request for judicial notice are denied as moot. (See Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1225, fn. 1.)

DISCUSSION

I

The Challenge To The Appointment Of A Guardian Ad Litem Is Timely

The Agency argues that Sonia's request for appellate review of the appointment of the guardian ad litem is untimely and that the issue should have been raised in a rule 38.1 writ petition. The guardian ad litem filed a notice of intent to file a writ petition on May 11, 2005. (See rule 38.) However, after reviewing the record, associate counsel did not file a writ petition. The Agency contends that the issue is waived on appeal.

The appellate courts have recognized the inherent conflict of interest between a parent who did not consent to the appointment of a guardian ad litem and his or her attorney who recommended the appointment, and have held that a failure to timely file a writ petition challenging the appointment does not preclude later review. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1188 (Jessica G.); In re Joann E. (2002) 104 Cal.App.4th 347, 353 (Joann E.).) This court recently recognized this principle in In re Enrique G. (June 19, 2006, D047692) __ Cal.App.4th __ [2006 Cal.App. Lexis 901] (Enrique G.).

In Enrique G., as here, the parent's guardian ad litem filed a notice of intent to file a writ petition challenging the referral order to a section 366.26 hearing. After review, counsel decided not to proceed with the petition for writ. (Enrique G., supra, __ Cal.App.4th at p. __ [2006 Cal.App. Lexis 901, 6].) Relying on Jessica G., supra, 93 Cal.App.4th 1180 and In re Joann G., supra, 104 Cal.App.4th 347, the Enrique G. court concluded that one could not expect the guardian ad litem to seek review of the order appointing him and, similarly, could not expect counsel to seek review of the very order he requested. (Enrique G., supra, __ Cal.App.4th at p. __ [2006 Cal.App. Lexis 901, 10‑11].) In view of these inherent conflicts of interest, to insist that a parent seek writ review when a guardian ad litem is appointed or "lose her right to later complain about a violation of constitutional rights would itself pose constitutional issues." (Jessica G., supra, 93 Cal.App.4th at p. 1190.)

The Agency's contention that Sonia has waived further review of the appointment of the guardian ad litem is untenable in view of the fact that Sonia did not receive notice of a hearing to appoint a guardian ad litem nor of the appointment order itself. In addition, the record shows that Sonia did not have adequate notice of the procedures required to challenge the appointment of the guardian ad litem. Associate counsel did not represent that he spoke with Sonia (or with the guardian ad litem) before deciding not to pursue the writ. There is no evidence that Sonia was informed of her right to object or to seek review of the appointment. (See Jessica G., supra, 93 Cal.App.4th at p. 1190, fn. 1 [even if the parent was adequately advised of the necessity of writ review, the due process exemption applies].) This issue is timely raised and Sonia has not waived appellate review.

II

The Court Erred By Appointing A Guardian Ad Litem

Without First Providing Sonia With Notice and Opportunity to be Heard

Sonia contends that the appointment of a guardian ad litem without affording her prior notice and an opportunity to be heard violated her constitutional right to due process of law. (In re Sara D. (2001) 87 Cal.App.4th 661, 667 (Sara D.); In re Joann E., supra, 104 Cal.App.4th at pp. 356-357; Jessica G., supra, 93 Cal.App.4th at pp. 1186-1887.) The Agency concedes that the record does not contain any evidence showing either that Sonia consented to the appointment of the guardian ad litem or that she was provided notice and an opportunity to be heard.

We review constitutional issues de novo. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433,)

In any proceeding in which an incompetent person is a party, that person shall appear by a guardian ad litem appointed by the court in which the action is pending. (Code Civ. Proc., § 372.) In the context of dependency proceedings, the test for incompetence is whether the party has the capacity to understand the nature or consequences of the proceeding and is able to assist counsel in the preparation of the case. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1450-1451 (Christina B.); Jessica G., supra, 93 Cal.App.4th at p. 1186; see Pen. Code, § 1367.)

The effect of the appointment of a guardian ad litem for a parent in a dependency proceeding is significant because it removes control over litigation from the parent and vests it with the guardian ad litem. (Christina B., supra, 19 Cal.App.4th at pp. 1453-1454; Jessica G., supra, 93 Cal.App.4th at pp. 1186-1187; In re Daniel S. (2004) 115 Cal.App.4th 903, 912 (Daniel S.).) A guardian ad litem is given broad powers to control trial tactics and the "procedural steps necessary to the conduct of the litigation." (Sara D., supra, 87 Cal.App.4th at p. 668.)

Courts have recognized that the appointment of a guardian ad litem in a dependency case deprives a parent of the right to control and participate in litigation affecting the fundamental parental interest in the companionship, care, custody and management of one's children. (Sara D., supra, 87 Cal.App.4th at p. 668; see In re Dakota H. (2005) 132 Cal.App.4th 212, 223.) Consequently, unless the parent consents to the appointment, the parent must be afforded due process before the court may appoint a guardian ad litem. (Jessica G., supra, 93 Cal.App.4th at p. 1187; Daniel S., supra, 115 Cal.App.4th at p. 912.) It is axiomatic that the court may not divest a parent of a fundamental interest without first providing the parent with notice and an opportunity to be heard. (C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 915; see, generally, Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314; Stanley v. Illinois (1972) 405 U.S. 645, 658; Santosky v. Kramer (1982) 455 U.S. 745, 753-754.)

In order to " '. . . provide the court with the most accurate picture of the circumstances so it can make an informed decision,' " the parent must be afforded an opportunity to respond. (Jessica G., supra, 93 Cal.App.4th at p. 1187-1188, quoting Sara D., supra, 87 Cal.App.4th at p. 672.) A hearing to determine a parent's competence need not be formal. (Daniel S., supra, 115 Cal.App.4th at p. 912.) However, at the hearing, which may be closed to other parties, the court or counsel must explain to the parent the purpose of appointing a guardian ad litem, the parent's loss of authority over the litigation, the guardian ad litem's role, and why counsel believes the appointment is necessary. (Jessica G., supra, 93 Cal.App.4th at p. 1187-1188.) At minimum, the court should make an inquiry sufficient to determine whether the parent understands the nature of the proceedings and can assist the attorney in protecting his or her rights. (Ibid., citing Sara D., supra, 87 Cal.App.4th at p. 672, italics added.)

In this case, the court did not provide Sonia with any of the procedural safeguards necessary to protect her due process rights. On March 1, 2005, in Sonia's absence and without prior notice to her, the court appointed a guardian ad litem on her behalf after the following exchange with her attorney:

"THE COURT: [¶] . . . [¶] [Sonia's attorney], anything you want to pass on at this point? One of the things you were going to be alert to is whether we needed a guardian ad litem and so forth.

"[SONIA'S ATTORNEY]: Yes, Your Honor. I spoke with my client on the 10th of February. She made inconsistent statements about how she would like to proceed in this case. She was unable to provide me with the name of her -- the doctor that was treating her at the shelter where she resides. I do not feel that I can plan her case with the assistance of my client. I would be requesting the court appoint a [guardian ad litem] for my client.

"THE COURT [(to the independent contract office (ICO) attorney)]: [I]s this something you would be willing –

"[ICO ATTORNEY]: You know, Your Honor, I am kind of curious. CPO is not on the case.

"THE COURT: They could – off the record for a moment. [¶] . . . [¶] Back on the record. In response to [counsel's] comments I am appointing the ICO office . . . , to serve as guardian ad litem for the mother."

In appointing a guardian ad litem for Sonia, the court relied on the conclusory statements of her attorney, without determining the factual bases or foundation underlying the statements. The court did not know why or how Sonia was unable to assist her attorney in protecting her interests. (Sara D., supra, 87 Cal.App.4th at p. 674.) The court was informed that Sonia was conflicted regarding the desired outcome of the dependency proceedings, that she disliked court proceedings, and that she was unable to remember a doctor's name; however, those facts do not go to whether she understood the nature of the proceedings and could assist her attorney in protecting her rights.

There is no evidence that Sonia consented to the court's appointment of a guardian ad litem. She was not provided with notice of the proceeding, nor was she given an opportunity to respond. Her attorney did not represent to the court that she had advised Sonia of the purpose for the appointment of a guardian ad litem, the guardian's role in controlling litigation or that the appointment would result in the loss of Sonia's authority to make important decisions affecting her fundamental interest in parenting her child. The court thus had an obligation to ensure that Sonia was advised of the consequences of the appointment of a guardian ad litem before making the appointment. The record shows that the court did not make the requisite advisements, and did not inquire as to whether Sonia understood the nature of the proceedings and could assist counsel in protecting her rights. (Jessica G., supra, 93 Cal.App.4th at p. 1188 citing Sara D., supra, 87 Cal.App.4th at p. 672.).

Story continue in Part II………..

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Rule references are to the California Rules of Court.

^[3] If specific circumstances apply, reunification services need not be provided to a parent or guardian. Section 361.5, subdivision (b)(10), provides: "[T]he court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian." Section 361.5, subdivision (b)(11), provides: "[T]he parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent."

^[4] Respondent's motions were untimely filed under rule 37.4(d)(2).

^[5] The declaration of the superior court clerk was not filed or lodged in the trial court and is not a certified transcript or agreed or settled statement of oral proceedings not designated under rule 4. (See rules 12(a) and 37.1.)