In re Marissa S.

Filed 5/10/07 In re Marissa S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge (Pursuant to Cal. Const., art. VI,  21) and William A. Stone, Judge (Retired Associate Justice of the Court of Appeal, Fifth District).

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

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Diane S. appeals from an order terminating her parental rights (Welf. & Inst. Code,  366.26) to her young daughter and son.^[1] Appellant contends the court violated her due process rights at an earlier stage of the proceedings when it appointed a guardian ad litem on her behalf. On review, we will affirm. We conclude there was no due process error. Alternatively, assuming arguendo the court did err, the error was harmless beyond a reasonable doubt.

PROCEDURAL AND FACTUAL HISTORY

Appellant has a severe alcohol abuse problem, as well as significant mental health problems. She also suffers from mild mental retardation. Unfortunately, appellant also has had five children, each of whom have suffered neglect and harm as a result of her problems.

In 1998, appellants mental health problems so interfered with her ability to parent her two oldest children, born in 1990 and 1998, that they were adjudged juvenile dependents and were removed from her care. When she failed to benefit from reunification services, the juvenile court in 1999 placed the children in a legal guardianship in which they have remained since.

By January 2004, appellant had two more children, toddler Marissa and infant Ignacio, who are the subjects of this appeal. She repeatedly neglected them due to her alcoholism. When these children were born, both Marissa in early 2002 and Ignacio in late 2003, suffered from prenatal alcohol exposure. Appellants chronic intoxication so impaired her ability to care for her young children that in January 2004, she was arrested on child endangerment charges.

Respondent Fresno County Department of Children and Family Services (department) in turn detained the children and instituted the underlying proceedings. In April 2004, the Fresno County Superior Court exercised its dependency jurisdiction over the children under section 300, subdivision (b) due to the profound neglect they suffered.

By late June 2004, the court adjudged Marissa and Ignacio dependents and formally removed them from parental custody. Although appellant previously failed reunification services for her older children, those services had focused on her mental health problems, not her alcoholism. Also, despite her denial of any drinking problem, appellant made some effort to participate in voluntary services after Marissa and Ignacio were detained. Consequently, the court ordered reunification services for appellant. Those services included intensive inpatient treatment, random drug testing, psychological evaluation, and visitation. The court set a six-month review hearing for October 15, 2004.

In the intervening months, appellant refused to enter treatment and continued to deny any problem with alcohol. Although she tested negatively for alcohol in July and August, her physical appearance suggested she was continuing abuse alcohol. It also appeared, through her weight gain, that appellant was pregnant; however, she denied that as well. In early September 2004, police found appellant on a public street passed out drunk. Her blood-alcohol level was 0.138. Later that month, she gave birth to her fifth child who suffered from fetal alcohol syndrome. Based on appellants non-compliance and the fact that both Marissa and Ignacio were under the age of three when they were detained, the department recommended in its October 15, 2004, status review report that the court terminate reunification services and set a section 366.26 hearing for permanency planning.

On October 15, 2004, the court granted a brief continuance of its status review at the request of appellants trial counsel, Thomas Zynda. On the continued hearing date, October 19, 2004, Zynda advised the court he had requested the continuance for the purposes of seeking a guardian ad litem for appellant. He explained:

On October 15th I attempted to discuss the case with my client and I had some further [discussions] today. On the 15th [it] appeared very clear to me that she was unable to assist me because she did not -- was unable to grasp the nature of these proceedings. She is now in the [Comprehensive Alcohol Program (CAP)], and I think that because of that that may eventually change, but Im still making that request today.^[2]

The court in turn acknowledged the presence of another attorney in the courtroom, Peter Meux, and asked if he was on this case. Meux replied:

No, Your Honor, Im not on the case. Im available to be the guardian ad litem, Your Honor. And just for the record, its my understanding that mother consents that guardian ad litem be appointed for her. Mother is present. And, Your Honor, it might be wise if we ask the mother on the record if she does consent to that.

Although the court responded go ahead, Zynda interjected his belief that the court needed to hold a hearing and make an independent determination that a guardian ad litem was appropriate. In turn the following exchange occurred:

THE COURT: All right. Ms. Mrs. [S.], do you understand what weve been talking about here today --

THE MOTHER: Yeah.

THE COURT: -- in that what Mr. Zynda is suggesting is you have Mr. Meux sort of stand in for you as your guardian in this proceeding to represent or to speak for you. Do you understand what the hearing is today that were about to undertake for which it is originally set for today but only undertake it but that review to determine -- do you understand what the hearing is today? Were set for -- let me ask you that.

THE MOTHER: Yeah.

THE COURT: Do you understand?

THE MOTHER: Yes.

THE COURT: What is the hearing today?

THE MOTHER: To see where the children go.

THE COURT: Okay. And do you understand how long you have to reunify with your children?

THE MOTHER: Six months.

THE COURT: Okay. And have you been in court before on other cases, other kind of cases, criminal cases perhaps?

THE MOTHER: No.

THE COURT: All right. Im going to find that based on the fact the report does indicate that Ms. [S.] has been -- had criminal proceedings and had orders against her in the criminal orders for her in the criminal case that a guardian would be appropriate in this case. And I take it, Ms. [S.], you agree with that, that Mr. Meux can help you in this?

THE MOTHER: Yeah.

THE COURT: Thats not for the best record ever, but I think its sufficient.

Once it appointed Meux as appellants guardian ad litem (GAL), the court continued its status review yet again so that the GAL could review the departments status review report and obtain discovery. Later in October 2004, the court signed a formal order appointing Meux as GAL for appellant. Meux continued as GAL for appellant throughout the balance of these proceedings.

The court eventually conducted its first status review of the childrens dependency in February 2005. In the interim, appellants counsel and GAL disputed whether she had received reasonable services in light of either her mental retardation or her mental health history.

At the February 2005 review, county counsel informed the court that the attorneys, including appellants GAL, negotiated an agreement for a full 18 months of services for appellant. The 18 months for services would lapse in July 2005. The department would also refer appellant for a psychological risk assessment as well as a bonding study. The GAL actively participated in this hearing, clarifying the terms of the negotiated agreement. The court adopted the terms of the negotiated agreement as its orders and made the requisite findings to continue the childrens dependency and out-of-home placement.

In addition, at the February hearing, appellants GAL and trial counsel questioned at length what was happening regarding a maternal relatives request for placement of Marissa and Ignacio. In response to the questions appellants GAL and trial counsel raised, the court set a further hearing on the relative placement issue. Over time appellants GAL and trial counsel vigorously pursued the issue so that the department conducted what was apparently a second evaluation of the relative and her home. Although a relative placement was ultimately not possible, it was not for any lack of effort on the part of appellants GAL and trial counsel.

Appellant subsequently participated during the spring of 2005 in the psychological risk assessment and bonding study. According to the evaluating psychologists report, appellant suffered from alcohol dependency but continued to deny that alcohol was and had been a problem in her life. The chances of relapse and additional problems due to the effects of alcohol in her life were extremely high. She was also functioning in the borderline range of intellectual ability, impairing her ability to learn and apply new information. Although appellant was capable of utilizing reunification services, it was unlikely that the benefit of services would continue past the departments involvement in appellants life. As for the bonding study, the psychologist concluded the children and appellant did not have a parent/child relationship. Both children seemed confused about being with appellant and reacted to her mostly with indifference. There was no substantial, positive attachment to appellant.

Despite the fact that the statutory-maximum of the 18 months for reunification services ( 361.5, subd. (a)) elapsed for appellant in July 2005, she continued to receive services for more than 21 months. Notably, in October 2005, approximately one year after the court appointed Meux as appellants GAL, her trial counsel filed a declaration by appellant stating her consent to have a GAL and her voluntary desire for her GAL to continue assisting her. In particular, appellant declared the following under penalty of perjury:

4. I consent to the Guardian Ad Litem since I have mental issues that render it very difficult in understanding the dependency proceedings.

5. I have had numerous conversation[s] with my Guardian Ad Litem and have found that my Guardian Ad Litem has been helpful to me in understanding the Dependency proceeding.

6. I desire voluntarily for my guardian Ad Litem to continue to assist me in relation to the Dependency proceedings regarding my above-named children.

By late fall 2005, appellant had finally completed reunification services. However, the progress she made was minimal. Despite appellants continued challenge to the reasonableness of the services, the court, at a December 2005 status review hearing, determined there was clear and convincing evidence of reasonable services. The court found appellants progress was minimal to moderate. It cited in particular appellants refusal to participate in Central Valley Regional Center services, which could identify appellants own learning disabilities and help to define her needs and susceptibilities. The court also remarked on appellants lack of housing, her unemployment, her positive tests for alcohol use, and her arrival for visits smelling of alcohol. The court consequently terminated reunification services and set a section 366.26 hearing for April 2006.

In the interim, appellants GAL persuaded the court to order an updated bonding study for appellant and her children. The results of the second bonding study would prove to be essentially identical to the study conducted a year earlier. This second bonding study also focused on appellants significantly impaired parenting skills.

Meanwhile, the department prepared a 366.26 WIC Report in which it recommended the court select adoption as the permanent plan for the children, find them likely to be adopted and order parental rights terminated. According to the report, Marissa and Ignacio were not generally adoptable because they comprised a sibling group as well as the fact Ignacio was developmentally delayed and, based on genetic testing, had Fragile X Syndrome.^[3]Nonetheless, the children were considered adoptable. The children appeared comfortable, happy and healthy in their foster care placement. Moreover, their foster parents, who had cared for them since January 2004, were very willing and able to provide a stable and loving home for the children through adoption. The preliminary assessment of the foster parents eligibility and commitment to adopt was favorable as well. The departments report also noted that despite regular visitation, there was no parent/child relationship between the children and appellant or the childrens father.

Along the same lines, a Court Appointed Special Advocate (CASA) reported to the court that following visits with their parents, both children, but especially Ignacio, exhibited some acting out. In Ignacios case, it took the foster mother two or three days to calm him down. Marissa did not want to attend some visits and would become agitated.

The court ultimately conducted its section 366.26 hearing in September 2006. At the hearing, appellants trial counsel represented that the GAL had instructed him on how to proceed. He in turn challenged the childrens adoptability based on the departments evidence. He also argued that termination would be detrimental to the children based on appellants regular visitation with her children.

Following argument, the court found the children likely to be adopted and terminated parental rights. It also rejected appellants argument that termination would be detrimental.

DISCUSSION

On appeal from the order terminating her parental rights, appellant does not contest the courts underlying findings to support its decision to terminate. Rather, she takes aim at the October 2004 order appointing Meux as her GAL. In her opening brief, she claimed she was denied a hearing on the issue and that her declaration from a year later did not suffice because it did not include a knowing and intelligent waiver of her rights. At the time appellant had failed to augment the appellate record with a reporters transcript of the October 19, 2004, hearing at which the court made the GAL appointment. After this omission was brought to appellants attention and the record was so augmented, appellant filed a supplemental letter brief. In it, she amends her claim and contends instead the appointment was erroneous because: (a) she proved herself to be competent; and (b) her consent to the appointment was uninformed. She continues to argue her declaration from a year later did not suffice without a knowing and intelligent waiver of her rights. Having reviewed the record and the relevant caselaw, we disagree as discussed below.

In a case of first impression, this court in In re Sara D. (2001) 87 Cal.App.4th 661 (Sara D.) addressed the propriety of a decision to appoint a GAL for a parent which was made in chambers and outside the parents presence. Sara D. first held a trial court has statutory authority to make such an appointment for a parent who lacks the capacity to understand the nature or consequences of the proceeding and is unable to assist in the preparation of the case. (Id. at pp. 666, 667.) Next, Sara D. analyzed what due process is required before a court may appoint a GAL.

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.

If the parent does not consent, or the attorney forgoes consultation with the client and approaches the court directly, the court will find itself in a significantly different position. The court is being asked to dramatically change the parents role in the proceeding by transferring the direction and control of the litigation from the parent to the guardian ad litem. (Sara D., supra, 87 Cal.App.4th at p. 668.)

After further analysis, this court held: a parents due process rights are implicated by the appointment of a GAL and if the parent has not consented to a GAL appointment, due process entitles the parent to an informal hearing and an opportunity to be heard. With reference to what had occurred below in Sara D., we added:

A hearing would have provided [the parent] an opportunity to explain why a guardian ad litem was not required and would have allowed her to respond to [her attorneys] 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. (Sara D., supra, 87 Cal.App.4th at p. 671.)

Other appellate courts have agreed with our analysis and followed our approach. (See In re C.G. (2005) 129 Cal.App.4th 27; In re Daniel S. (2004) 115 Cal.App.4th 903; In re Jessica G. ( 2001) 93 Cal.App.4th 1180.)

Returning to the appeal at hand, we observe that appellant received the protections outlined in Sara D. First, the record establishes that appellant consented to the appointment. In light of appellants participation in the decision to request the appointment, her due process rights were protected. (Sara D., supra, 87 Cal.App.4th at p. 668.) To the extent she complains her consent was uninformed, appellant minimizes the fact that the court explained to her that Meux would stand in for her in the proceeding and speak on her behalf. Because a GAL appointment arises under circumstances where a party has difficulty understanding the nature or consequences of the proceedings and cannot assist counsel, it is difficult to imagine that a more detailed explanation would make such a partys consent anymore informed.

Second, notwithstanding appellants consent, the court also conducted an informal hearing at which trial counsel explained his reasoning, the court conducted its own inquiry and appellant had the opportunity to respond. Further, the record supports the courts decision. (Sara D., supra, 87 Cal.App.4th pp. 666, 667.) Counsel explained that appellant could not assist him because, despite multiple conversations over the past few days, she did not grasp the nature of the proceedings. Counsel also appeared to associate appellants lack of understanding with her profound alcohol abuse which is borne out by the record. Further, her answers to the courts questions confirmed that appellants lack of understanding. While she answered correctly the courts question about how long she had to reunify, she misunderstood the purpose of the hearing that day. She also denied having been in court before on other cases, when in fact she had been a party to her older childrens dependency and had a pending criminal case for child endangerment. Thus, contrary to appellants argument otherwise, she did not prove herself to be competent.

Third, even assuming there was some error associated with the appointment order, we would not reverse. We conclude instead that any error was harmless beyond a reasonable doubt. (Sara D., supra, 87 Cal.App.4th at p. 673.) Before we explain our reasoning, we acknowledge there is disagreement among the courts of appeal regarding what standard of prejudice to apply on the issue of GAL appointments, a Chapman^[4]standard of beyond a reasonable doubt or a per se reversal standard. This court in Sara D. applied a Chapman standard. The Second District Court of Appeal in In re C.G., supra, 129 Cal.App.4th 27 applied a per se standard. The issue is currently pending before the California Supreme Court, in In re James F., S150316.^[5]

The proceedings herein, once the court appointed the GAL, were remarkable for the opportunities appellant was afforded. Given her lack of effort during the first six-months of services, the court would have been well within its authority under section 361.5, subdivision (a) and section 366.21, subdivision (e) to terminate services for appellant in the fall of 2004. However, her GAL and trial counsel persuaded first the department and then the court to extend services. While the GAL and trial counsel disputed whether she had received reasonable services during those first six months, in fact the record establishes the problem was not the types of services she received but appellants unwillingness to participate. There was evidence in the record that appellant needed to become sober before mental health services would be effective. Also, as far as her cognitive disability was concerned, she was offered services, to assess how to best help her, which she refused. Even more remarkable, the GAL and trial counsel negotiated an extension of services to the statutory maximum of 18 months. Indeed, in the end appellant received 21 months of reasonable services. While she ultimately completed all the services, she could not reunify because she had made inadequate progress. Her inability to reunify had nothing to do with the appointment of a GAL on her behalf. The GAL also persuaded the court to order the psychological risk assessment and an early bonding study. Indeed, the GAL successfully advocated for a second bonding study. This was particularly notable in that not only had one already been performed with no positive evidence favoring appellant but the GAL requested the second bonding study on the date originally set for the section 366.26 hearing. Further, the GAL, along with appellants trial counsel, vigorously challenged on her behalf, the lack of a relative placement for the children as well as contested the departments recommendation that the children were adoptable and termination would not be detrimental. While the GAL and trial counsel did not prevail on these issues, it is unimaginable that without a GAL, the results would have been different. Under these circumstances, we conclude any error in the GAL appointment was harmless beyond a reasonable doubt.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Kane, J.

Judge Schwartzbart presided over the termination hearing and Judge Stone appointed the guardian ad litem.

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

^[2] According to the record, appellant entered CAP, a day earlier, on October 18, 2004.

^[3] The department did not define Fragile X Syndrome in this or prior reports. It is apparently the most common cause of inherited mental impairment, ranging from learning disabilities to more severe cognitive or intellectual disabilities. It is also apparently the most common known cause of autism or autistic-like behaviors. Symptoms can include characteristic physical and behavioral features and delays in speech and language development. (What is Fragile X? www.fragilex.org 4/30/07.) It is unclear from the record what Fragile X Syndrome symptoms Ignacio has. According to other portions of the record, Marissa is a carrier for the Fragile X Syndrome.

^[4]Chapman v. California (1967) 386 U.S. 18.

^[5] The case arises out of the Second District Court of Appeal; review was granted during the pendency of this appeal.