In re Kaylah C.

Filed 2/28/07 In re Kaylah C. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Rose K. (appellant), mother of Kayla C.^[1](the minor), appeals from the juvenile courts order terminating her parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant contends the court violated her due process rights when it failed to hold a hearing to determine whether it should appoint a guardian ad litem for her. We disagree and shall affirm the orders.

Background

On December 25, 2004, appellant contacted the California Highway Patrol to report she had heard on the news the prior night that her ex-husband had killed four people. When contacted by a deputy from the Sacramento County Sheriffs Department, appellant told the deputy that she had heard her ex-husband talking through the walls; he told another person that he had killed the people because they had molested his children. Appellant appeared to be distressed and was whispering because the voices could be heard through the walls. The occupants of the neighboring apartment said appellant had some mental health issues and tended to exaggerate and make things up. With appellants permission, deputies contacted appellants sister, who stated appellant was bipolar and this was one of her periodic episodes triggered by stress.

The minor, who was nine years old at the time, was living with appellant. The deputies described the minor as mentally handicapped and unable to communicate. When they first noticed the minor, she was sitting approximately three inches from the television screen, drinking a bowl of cereal without a spoon. Appellant told the officers both she and the minor slept on the ground near the dining room table/kitchen bar top. She had been taking pills for a mental disorder but had not been taking them recently.

The deputies determined appellant could not take care of herself or the minor, so they took her to the Sacramento County Mental Health Treatment Center for evaluation. Appellant was examined by Dr. Goodwin, a physician for the center. Dr. Goodwin diagnosed appellant as having a [p]sychotic [d]isorder. She was not a danger to herself or others but the doctor had some concerns about [appellants] ability to care for the [minor] at this time.

On December 28, 2004, the Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition under Welfare and Institutions Code section 300, subdivision (b), failure to protect. The petition alleged that appellant neglected the minors educational needs, did not comply with family maintenance services, and her mental health problems kept appellant from taking care of the minor. The minor was detained at a December 29, 2004, detention hearing.

According to the assessment report prepared for the jurisdictional/dispositional hearing, appellant had a history of mental illness. Appellants sister told the social worker appellant began exhibiting signs of mental health concerns in her late 20s. As her sister explained, appellant presents as paranoid and accuses others of engaging in illegal activities with no validity surrounding the events when not taking her medication on a consistent basis.

The report noted appellant declined to participate in a phone interview with the social worker on January 10, 2005. Her reason for refusing was that drug dealers were tapping her phone line. On December 29, 2004, appellant told a social worker she had no knowledge of the detention hearing that had taken place earlier that day. After being told she had been given notice, appellant said this is all a conspiracy and . . . everyone is out to get [me].

Appellant admitted to being prescribed Stelazine (which DHHS states is for psychosis), but said she stopped taking it when her doctor discontinued the prescription. She denied that she had a prior diagnosis for a psychotic disorder and that she had been examined by Dr. Goodwin. Appellant stated she was never admitted to the hospital, and that the treatment staff only tried to shove pills down her throat, which she refused.

Appellant denied having a history of bipolar disorder. She said her sister made up the ailment because she was jealous, hateful, and evil. She also accused her sister of sleeping with her husband and smoking crack cocaine. Appellant also said she was going to sue her sister for slander.

According to the social worker who interviewed her, appellant vacillates between an ability to focus, engage in conversation, and provide pertinent information, to complete paranoia and a refusal to provide any information regarding herself or her child.

In 2002, the minor was diagnosed with mental retardation, severity unspecified, and Downs Syndrome. She has significant delays in cognitive, linguistic and adaptive functioning. A social worker who met with the minor on December 25, 2004, stated the child appeared to be non-verbal and made grunting sounds during the contact.

A contested jurisdictional/dispositional hearing was held on June 6, 2005. The juvenile court sustained the petition and adopted DHHSs recommendations. Appellant was not present at the hearing.

A prepermanency review report dated August 22, 2005, recommended termination of reunification services due to appellants failure to participate in the recommended services. The minor was in an Alta level 4-H home and making wonderful progress. The report noted appellant continues to harass the foster parent over the phone despite a court order to refrain from contact with the placement. The foster parent stated appellant continues to threaten to kill the social worker. Appellant managed to get the cell phone number of the foster parents biological daughter, and accused DHHS employees of stealing her Social Security check. A medical diagnosis from 2003 showed appellant had an organic psychotic disorder in addition to a bipolar condition.

In an opinion filed February 14, 2006, this court conditionally reversed the jurisdictional and dispositional orders and remanded for compliance with the notice provisions of the Indian Child Welfare Act of 1978 (ICWA).

The permanency report, dated February 3, 2006, stated that appellant had started harassing employees at the minors school. According to the school districts representative, appellant had been verbally abusive on the phone and aggressive. The report noted appellant was resistant to participating in mental health services. She does not identify herself as having any mental health issues and believes [DHHS] removed the [minor] due to allegations of substance abuse.

At the February 15, 2006, permanency hearing, the juvenile court terminated reunification services for appellant and set a selection and implementation hearing under Welfare and Institutions Code section 366.26. Appellant was not present at the hearing. DHHS requested a temporary restraining order against appellant to prevent her from having contact with the minors caretakers due to her escalating behavior. The order was granted by the court.

The temporary restraining order was continued on March 8, 2006. DHHS was unable to obtain a permanent restraining order because it was unable to personally serve notice to appellant, and the temporary restraining order expired.

On April 25, 2006, this court filed an opinion reversing the orders of the juvenile court at the six-month hearing for failure to comply with the notice provisions of ICWA.

The juvenile court held the Welfare and Institutions Code section 366.26 selection and implementation hearing on August 16, 2006. Appellant was not present at the hearing. The court terminated appellants parental rights and ordered adoption as the permanent plan for the minor.

Discussion

Appellant contends that the juvenile court should have sua sponte held a hearing to determine whether a guardian should be appointed for appellant, and that the courts failure to do so violated her due process rights.

The appointment of a guardian ad litem in a dependency proceeding is authorized by Code of Civil Procedure section 372. That statute does not explicitly discuss the grounds for appointment, beyond a requirement that it be expedient. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186 (Jessica G.).) Cases which have addressed the question of the basis for appointment have relied on both Probate Code section 1801 and Penal Code section 1367 to measure competency. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1449-1450; In re Sara D. (2001) 87 Cal.App.4th 661, 667.) The appointment can be made upon the request of a relative of the incompetent person, any party, or by the court on its own motion. (Code Civ. Proc., 373, subd. (c).)

The standard for appointing a guardian in a dependency hearing is whether the party has the capacity to understand the nature or consequences of the proceeding, and is able to assist counsel in preparation of the case. (Jessica G., supra, 93 Cal.App.4th at p. 1186.) A court with knowledge of a partys incompetence has an obligation to appoint a guardian ad litem sua sponte. (In re Lisa M. (1986) 177 Cal.App.3d 915, 919.)

Appellant claims the juvenile court had a duty to inquire into appointing a guardian for her because there was evidence before the court that she was not competent to participate [in] or understand the nature of the hearings. Appellant notes that in criminal cases applying Penal Code section 1367, the trial court is required to hold a hearing on defendants competency to stand trial when presented with substantial evidence that he is incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense. (People v. Pennington (1967) 66 Cal.2d 508, 518.) Appellant argues this standard applies to dependency cases by analogy, and the juvenile court was presented with sufficient evidence of her incompetency to trigger an inquiry under Pennington. Her claim is not supported by the record.

The record shows that appellant had mental health problems which kept her from providing adequate care for the minor. Nothing in the record supports defendants contention that these problems rendered her incapable of helping counsel or understanding the nature of the proceedings. The doctor, who examined appellant after the December 25, 2004, incident, determined that while there were questions about her ability to care for the minor, appellant was not a danger to herself or others. There was evidence before the court that appellants mental problems were intermittent. Appellants sister said that appellants paranoia arose when she did not take her medication consistently. According to a social worker who interviewed appellant, she vacillated between lucidity and paranoia.

The juvenile court did not have many opportunities to view appellant. Appellant appeared before the juvenile court on a few occasions. However, she was not present for the detention hearing, the dispositional hearing, the permanency hearing or the termination hearing. Lacking any indications from counsel that appellant did not understand the proceedings or could aid in her defense, the juvenile court was not presented with substantial evidence that appellant could not assist in her defense or understand the nature or consequences of the proceedings.^[2]

Disposition

The orders of the juvenile court are affirmed.

DAVIS, Acting P.J.

We concur:

HULL, J.

ROBIE , J.

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^[1] The spelling of the minors name appears two ways in the record (Kayla and Kaylah). Because appellant uses the latter spelling in correspondence located in the record, we will use Kaylah throughout the opinion.

^[2] Appellant contends the juvenile court should have inquired into appointing a guardian at the Welfare and Institutions Code section 366.26 hearing and at the hearing setting the section 366.26 hearing. Review of a referral order is barred unless the parent has sought timely review by extraordinary writ. (In re Rashad B. (1999) 76 Cal.App.4th 442, 447.) Appellant contends she is excused from this requirement because she was not provided with adequate notice of the writ requirement. Since we have determined that the juvenile court was not required to hold a hearing on guardianship, we do not need to determine in this appeal whether appellant can contest the referral order.