In re Chelsea P.

Filed 9/29/06 In re Chelsea P. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

This is an appeal following a six-month review hearing in juvenile dependency proceedings. Appellant’s sole claim on appeal, however, relates to the appointment of a guardian ad litem in a prior hearing. Appellant mother waived her right to appeal the guardianship ruling by failing to timely challenge that ruling; she may not now raise that challenge on the appeal of a subsequent order. Moreover, even if we were to reach the merits of appellant’s claim, we would find that a guardian was properly appointed to represent appellant. Thus, we affirm.

FACTS

Appellant Judith P. (Mother) is the mother of Chelsea P. This case began when Chelsea made a 911 call claiming that her mother was hitting her. Shortly thereafter, the Alameda County Social Services Agency (Agency) became involved. Chelsea was interviewed at her school, the California School for the Deaf in Fremont. Chelsea explained to the Agency the general situation at home with her mother. The Agency determined that Chelsea has been profoundly deaf since early childhood and according to the Agency case plan assessment, caring for Chelsea “would be a difficult task for anyone.”

Based on the school interview, the Agency determined that Chelsea should be placed in protective custody. The Agency brought a petition on December 21, 2004, seeking jurisdiction over Chelsea P. (Welf. & Inst. Code § 300 [all further section references are to this code].) The petition alleged three specific problems: (1) failure to protect, (2) serious emotional damage, and (3) no provision for support. The Agency petition referenced previous referrals from social services in Los Angeles County, including statements that Mother suffered from schizophrenia and that Chelsea was removed due to a concern about Mother’s mental illness. A detention hearing was held, and the court found insufficient evidence to detain Chelsea but maintained a hearing date for dependency. During subsequent hearings, the court sustained the section 300 petition and removed Chelsea from Mother’s care. The Agency created a case plan which required, among other things, that Mother undergo a mental health evaluation and a medication evaluation, and enroll in a parenting education program.

A contested disposition hearing was held on February 16, 2005. The Agency’s case plan for Mother and Chelsea included recommendations for out-of-home placement and reunification services. The Agency’s social study said that Mother presented consistent paranoid behavior and had difficulty in relating to others. During the disposition hearing, the court conducted a direct examination of Mother where the judge asked her about her mental state. Mother explained that she had never been diagnosed with a serious mental issue, depression, or bipolar disorder. At times during the hearing, Mother appeared confused by the proceedings and made contradictory statements. The judge determined that it was in Chelsea’s best interest that she be removed from Mother’s care, that reunification services be ordered, and that Mother undergo a complete psychological evaluation. A date was set for the six-month status review hearing.

Before the six-month status review hearing, Mother filed a Marsden[1] motion requesting that her court-appointed attorney be replaced due to a breakdown of communication. Mother’s court-appointed attorney stated that there was a lack of communication due to Mother’s mental and emotional state. After both Mother and her attorney made statements, the judge said that he believed the problem was that Mother was “unable to adequately understand” what was occurring during the court proceedings and this was affecting her communication with her attorney. The judge did not see the need to replace her attorney. Mother’s attorney stated that in similar cases a guardian ad litem had been appointed for the mother. The judge continued the matter for two weeks to hold a hearing to determine whether Mother would need a guardian ad litem appointed for her.

On June 1, 2005, a hearing was held to determine whether a guardian ad litem should be appointed for Mother. The judge stated that based on a careful review of the record, detention report, and his own notes of previous proceedings, that he had reached a tentative conclusion to appoint a guardian ad litem for Mother. The judge explained to Mother the function and powers of a guardian ad litem. Mother was provided the opportunity to speak against the appointment of a guardian ad litem. Mother asked for a continuance to obtain a new attorney and asked the judge for an accounting of the specific facts that resulted in the judge’s tentative conclusion to appoint a guardian. Mother later argued that the judge’s determination was based on hearsay, that she was not provided effective counsel throughout the juvenile dependency process, and that the court did not have the requisite training to make a determination as to her mental health. Ultimately, the judge decided to appoint a guardian ad litem. However, the judge stated that if Mother underwent a full psychological evaluation and the results indicated that she did not need a guardian ad litem, he would reverse his decision.

A six-month status review hearing was held on August 15, 2005. Mother had not cooperated with a full psychological evaluation or complied with the court-ordered case plan. The judge determined that returning Chelsea to Mother’s care would create a risk of detriment to Chelsea’s well being, thus he continued the matter for another six months for a twelve-month status review hearing and again ordered Mother to submit to a full psychological evaluation. This appeal followed.

DISCUSSION

Mother’s main contention is that the juvenile court erred in appointing a guardian ad litem to make decisions in her stead during juvenile dependency proceedings. However, Mother waived any error in the guardian ad litem order by failing to timely appeal that order; she may not dispute that order on appeal of a subsequent order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150; In re Janee J. (1999) 74 Cal.App.4th 198, 206.) The “ ‘waiver rule’ “ states that “an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order.” (In re Meranda P., supra, 56 Cal.App.4th at p. 1151.) As a general rule, an appeal from a juvenile court order must be filed within 60 days after the pronouncement of the order in open court. (In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1252-1254.)

During the June 1, 2005 hearing, the juvenile-court-appointed a guardian ad litem for Mother. Mother did not appeal the appointment of the guardian ad litem until after the six-month status review hearing held on August 15, 2005. In fact, this appeal was not filed until September 16, 2005, more than three months after the appointment of the guardian. Thus, Mother waived any error by failing to file a timely appeal. “[T]he waiver rule will be enforced unless due process forbids it.” (In re Janee J., supra, 74 Cal.App.4th at 208.) Due process generally requires notice, a hearing, and an opportunity for the party opposing the appointment of a guardian ad litem to explain why a guardian is not required. (In re Sara D. (2001) 87 Cal.App.4th 661, 667-672.) During the Marsden hearing, Mother was provided notice of the subsequent hearing regarding the guardian ad litem appointment. Also, during the June 1, 2005 hearing, Mother was provided ample opportunity to explain why a guardian ad litem was not necessary. Therefore, application of the waiver rule in this case does not offend due process.

Nonetheless, if we were to review the issue of the appointment of a guardian ad litem on the merits, we would find that appellant failed to demonstrate error. When determining whether the appointment of a guardian ad litem is proper, “[t]he 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 Jessica G. (2001) 93 Cal.App.4th 1180, 1186.) The juvenile court reviewed the record, reports, and filings associated with the case predating the June 1, 2005 hearing before appointing the guardian ad litem. Substantial evidence supports the juvenile court’s conclusion that Mother needed a guardian ad litem.

Mother contends that there was insufficient evidence to support the guardian ad litem’s appointment. In particular, Mother claims that the court was not qualified to make a determination as to her mental competency. However, it was Mother who obstructed professional psychological determinations by refusing to comply with court-ordered evaluations. Hagit Glickman, Ph.D., attempted to conduct a psychological evaluation, but due to Mother’s unwillingness to cooperate, he was unable to complete the testing. Dr. Glickman determined that Mother’s “mental health issues in conjunction with her resistance will interfere with the completion of an assessment by this evaluator [Dr. Glickman] or any other evaluator.” Again, the court agreed to lift the guardianship if a favorable evaluation was submitted, but Mother was unwilling to take the necessary steps to give the court a psychological evaluation.

Also, the record before the trial court includes many references to Mother’s mental health. For instance, a child welfare investigation in 2003 said that Mother had been diagnosed as schizophrenic. The investigation report from the 2003 incident included information that a prior child welfare worker had accompanied Mother to a psychiatric session where Mother was placed on medication for her mental illness. Another investigation by the Los Angeles County Social Services Agency included a call to Mother’s doctor where he indicated that Mother needed to be on medication.

The court also made its own observations of Mother’s behavior during the proceedings. During the jurisdiction hearing, Mother appeared to have difficulty in understanding what the proceedings were about. Mother seemed confused by issues that she had previously discussed with her attorney.

In the continued disposition hearing, Mother seemed confused and contradicted herself on seemingly simple matters. For example, Mother stated to the court that she wanted to return to Los Angeles; however, she also stated that she left a deposit on an apartment in Fremont. Mother then explained to the court that she did not want to live in Fremont. Subsequently, Mother stated that she wants her daughter to attend a school in Hayward. During the same hearing, Mother stated that she wanted her daughter to attend school in San Francisco. At the end of the disposition hearing, Mother stated that her daughter could “assemble a television set in less than ten minutes perfectly.” Based on the foregoing evidence, and Mother’s unwillingness to submit to the court-ordered psychological evaluation to present evidence to the contrary, substantial evidence supports the juvenile court’s decision appointing a guardian ad litem for Mother.

DISPOSITION

The order is affirmed.

_________________________

Sepulveda, J.

We concur:

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Reardon, Acting P.J.

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Rivera, J.

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[1] People v. Marsden (1970) 2 Cal.3d 118.