In re Devon H.

Filed 3/16/07 In re Devon H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Janette F. Cochran, under appointment by the Court of Appeal, for Minor.

I

INTRODUCTION^[1]

Mother appeals from orders appointing a guardian ad litem (guardian) for her and terminating her parental rights. (In re Sara D. (2001) 87 Cal.App.4th 661; In re C.G. (2005) 129 Cal.App.4th 27; 366.26.) We reject mothers challenge because any error was harmless beyond a reasonable doubt.

II

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005, DPSS filed an original juvenile dependency petition, concerning Devon H., born in November 2004. The petition alleged failure to protect, including willful or negligent failure to supervise or protect the child from a custodian and the parents mental illness. Mothers male companion, Kevin, had allegedly subjected mother to domestic violence.^[2] Both mother and Kevin displayed symptoms of schizophrenia and other mental disturbances. Mother had been hospitalized and reportedly heard voices. Kevin experienced auditory and visual hallucinations and was not responsive to medications. During the social workers first contact with mother she was unfocused and disjointed in her responses and expected Devon, then three months old, to be able to feed herself from a bottle while propped against pillows.

On another home visit, mother appeared to be depressed, speaking monotone with a flat affect. She described how Kevin had shoved her violently into a wall. The social worker urged her to move to a shelter for victims of domestic violence. She refused. With the assistance of Hemet police officers, the social worker took custody of Devon.

At the detention hearing on March 23, 2005, the court described the maternal grandmother as the mothers legal guardian . . . for all purposes. The court ordered mother and Kevin to undergo psychological testing and ordered the child detained.

The April 2005 jurisdiction/disposition report described an interview with mother. Mother was occupying a disorganized, unkempt apartment. She repeated that Kevin had struck her causing her head to hit the wall. They had often argued in the past. She admitted being hospitalized in San Diego and having been homeless. She claimed to have suffered head injuries in car accidents. She had only recently learned about Kevins diagnosis of schizophrenia.

The social worker also interviewed Kevin. Mother was present and both appeared to be smoking marijuana. Kevin admitted he suffers from schizophrenia and there was conflict and violence between mother and him. He used marijuana and alcohol.

The report identified Judy S. as mothers foster mother/legal guardian. Judy S. became mothers foster mother when mother was 12 years old. Mother had been born with fetal alcohol syndrome. Judy S. said mother displayed paranoia and had acted violently in the past. The report withdrew the assertion that mother heard voices. Neither mother nor Kevin was employed. Kevin received disability benefits. Another man, Peter R., was identified as possibly being Devons father. Mother was having successful, regular visitation with Devon.

At the jurisdictional hearing on April 13, 2005, mothers counsel and mother requested that a guardian ad litem be appointed for mother, which the court did after inquiring of mother and finding a knowing and intelligent waiver. The court found true the allegations of the detention petition and approved reunification services for mother.

In April 2005, mother had a negative drug test. Kevin tested positive for methamphetamine.

In October 2005, DPSS filed an addendum report recommending termination of reunification services. Mother had not completed her parenting plan. Mother was homeless and unemployed. Mother and Kevin were acting violently toward one another. Mother was behaving bizarrely and was suspected of drug use. Mother had assaulted Kevin leaving him with a black eye and an injured ankle. In contacts with DPSS, mother appeared groggy, agitated, and unable to concentrate. Her psychological evaluation diagnosed her as having [m]ajor depression with psychotic features, and [m]ild mental retardation, making her an unsuitable parent and requiring ongoing treatment. Devon was healthy and happy but inclined to throw loud, agitated tantrums. Visitation was irregular.

In November 2005, the court terminated reunification services and set a section 366.26 hearing. Mother did not attend the hearing but her guardian ad litem appeared.

As of March 2006, mother had not seen Devon since August 2005. Kevins sister told the social worker that mother and Kevin had reunited and were living on the streets. A prospective adoptive family was considering Devon. DPSS recommended adoption.

At the section 366.26 hearing in May 2006, the child had been placed in the prospective adoptive home. Mother and the guardian ad litem appeared. The court ordered parental rights terminated and a permanent plan of adoption be set for Devon.

Mother appeals.

III

DISCUSSION

The governing principles are: A guardian ad litem may be appointed for a parent in a dependency proceeding if he or she is determined to be incompetent under either the standards of Probate Code section 1801 or Penal Code section 1367. (In re Christopher I. (2003) 106 Cal.App.4th 533, 568, citing In re Sara D. (2001) 87 Cal.App.4th 661, 667.) The primary concern is whether the parent understands the proceedings and can assist the attorney in protecting the parents interests in the companionship, custody, control and maintenance of the child. (In re Sara D., supra, at p. 667.)

Mother argues she did not receive due process when the juvenile court summarily appointed a guardian. Sara D. describes due process procedures:

If the parents attorney concludes that a guardian ad litem should be appointed, the attorney must either (a) approach the client and request consent to the appointment, or (b) not consult with the client and approach the court directly. If the attorney consults with the client and receives consent for the appointment of a guardian ad litem, the due process rights of the parent will be protected, since the parent participated in the decision to request the appointment. [] . . . []

[W]e conclude that due process required that [mother] was entitled to an informal hearing and an opportunity to be heard. A hearing would have provided [mother] an opportunity to explain why a guardian ad litem was not required and would have allowed her to respond to [her lawyers] belief the appointment was necessary. The court would have had the opportunity to inquire of both the parent and the attorney to gain a full understanding of the circumstances. Also, a record would have been established for appellate review. (In re Sara D., supra, 87 Cal.App.4th at pp. 668 and 671.)

Respondent contends mother was accorded due process. In the alternative, respondent argues the error is harmless.

At the jurisdictional hearing in April 2005, the court announced: I believe Mr. Seward [mothers counsel] would be asking that Ms. Wingate be appointed as guardian ad litem for the mother. The court then inquired: Are we appointing, on behalf of the mom, the guardian ad litem? The proposed guardian, Ms. Wingate, responded, Your Honor, at this time I will be available to accept appointment as mothers guardian ad litem. We did discuss the issue. My understanding is mother is requesting a guardian ad litem, but perhaps the Court could inquire. The following exchange occurred:

THE COURT: Okay. Mom, would you like me to appoint a guardian ad litem, this attorney here for you?

THE MOTHER: Thats fine.

THE COURT: Thank you. Ill do that.

Are you going to be part of the waiver process then?

MS. WINGATE: Yes, your Honor.

MR. SEWARD: We went over everything together.

THE COURT: Okay. Mom, youve gone over with your attorney and the guardian ad litem this form, and you signed this form, the waiver form [the Waiver of Rights form, JV-190], did you?

THE MOTHER: In regards to the court for today?

THE COURT: Yes.

THE MOTHER: Yeah.

THE COURT: Okay. Do you have any more questions about your guardian or the attorney or me regarding any of these things that you checked and the rights that you are waiving here today?

THE MOTHER: No.

THE COURT: Thank you. Ill find a knowing and intelligent waiver.

Both mothers counsel and the guardian ad litem joined in the finding. We reject mothers argument that she cannot consent to the appointment of a guardian because an appointment depends on a finding that she is incompetent and therefore incapable of consent. Sara D. clearly provides that, if the parents attorney approaches the client and receives consent for the appointment, the due process rights of the parent will be protected, since the parent participated in the decision to request the appointment. That is exactly what happened here. In view of mothers voluntary consent to the appointment, the court was not required to inquire any further on the issue than it did.

Furthermore, the court considered the concerns expressed in Sara D. about whether mother understood the proceedings and the rights she was waiving and whether she could assist her attorney in protecting her interests. (In re Sara D., supra, 87 Cal.App.4th at p. 667.) The subsequent psychological evaluation, identifying mothers mental problems and impairment, demonstrated the propriety in the appointment of a guardian.

Even if the appointment of a guardian for mother was error, it was harmless. Sara D. recognized: Reversal is not required if the violation of the appellant's due process rights was harmless beyond a reasonable doubt. (In re Sara D., supra, 87 Cal.App.4th at p. 673.) In Sara D., the error was not harmless because the record showed that, following the appointment, the guardian conferred with the lawyers and stipulated to submit the jurisdictional issue to the court. (Id. at pp. 664-665.) Because the appointment of the guardian affected the jurisdictional proceedings adversely to the parent, it could not be deemed harmless.

The same conclusion was reached in In re Jessica G. (2001) 93 Cal.App.4th 1180: As in Sara D., we cannot say that standard [beyond a reasonable doubt] is satisfied. We do not know what Mother might have done or suggested to her attorney if the guardian ad litem had not been interposed. She may have . . . been able to suggest other evidence or leads. Or she may not have been able to offer anything helpful. We simply do not know. (In re Jessica G., supra, at p. 1189.)

We recognize that In re C.G., supra, 129 Cal.App.4th at p. 34, described the appointment of a guardian without due process as being structural error. In this case, there is no reason to find the appointment of a guardian caused any prejudice to mothers rights. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912-915; In re Enrique G. (2006) 140 Cal.App.4th 676, 686.) Mother was present at the hearing in April 2005 when the guardian was first appointed and at the May 2006 section 366.26 hearing. Between those dates, she missed other court hearings and engaged only in sporadic contact with DCS. But the guardian contributed little in the way of direction or advice. Because the guardian did not play a significant role, mother was not deprived of her status as a party like the mother was in In re C.G. We do not find structural error in this case. Instead, we hold any error in appointing a guardian was harmless beyond a reasonable doubt.

IV

DISPOSITION

We affirm the judgment.

We also recognize the conflict on this issue among the appellate courts but reject the structural error argument for the reasons expressed in the dissent in In re James F. (2007) 146 Cal.App.4th 599, 617-620.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Richli

J.

We concur:

s/Ramirez

P. J.

s/King

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

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

^[2] Testing later established that Kevin was not Devons father.