In re T.P.

Filed 5/10/07 In re T.P. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Kern County. Robert Anspach, Judge.

Marin Williamson, under appointment by the Court of Appeal, for Defendant and Appellant.

B. C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant P.P.s daughter, T.P., was 19 months old when she was adjudged a dependent child in 1998, based upon appellants inability to care for her and physical abuse inflicted by her maternal grandmother. The juvenile court appointed a guardian ad litem to represent appellant because of her chronic mental illness. After a lengthy reunification period, the court terminated the mothers reunification services in 2002, and approved a case plan for T.P.s long-term foster care. The instant case involves appellants challenge to the courts orders after an August 2006 post-permanency review hearing, where the court ordered T.P. to remain in long-term foster care. Appellant asserts that neither her appointed counsel nor her guardian ad litem represented her interests, her guardian ad litem improperly appeared on behalf of her attorney at that hearing, and her attorney was prejudicially ineffective for failing to appear and seek visitation and/or custody. We will affirm.

FACTS

Appellants daughter, T.P., was born in 1997.^[1] T.P. lived with appellant and appellants mother, M.P. Appellants older son, I.L. (T.P.s half-brother) also lived with the family. M.P. was I.L.s legal guardian.

On September 22, 1998, 19-month old T.P. and 13-year-old I.L. were taken into protective custody by social workers from respondent, the Kern County Department of Human Services (respondent).

On September 24, 1998, respondent filed a dependency petition in the Superior Court of Kern County, alleging T.P. was within the provisions of Welfare and Institutions Code^[2]section 300, subdivisions (b) and (g), based on the following circumstances: that appellant had been diagnosed with schizophrenia which impaired her ability to provide adequate and appropriate care for T.P.; appellant failed to protect T.P. from physical abuse inflicted by M.P.; M.P. inflicted physical abuse by taping the minors hands and fingers so she could not grasp for items; M.P. also placed socks over the minors arms and secured them with rubberbands on the minors upper arms, which left two distinct circular brownish-red marks on the minors upper arms; when the rubber bands were removed, there was noticeable swelling along the minors upper arm, indicting that circulation had been cut off or restricted.

The instant detention occurred as a result of referrals respondent received in July, August, and September 1998. During that time, social workers repeatedly visited the residence where appellants family lived and observed appellant experience a psychotic episode and unable to engage in a coherent conversation; M.P. was yelling and irrational; marks and scabs on T.P.s arms, and bruises on her arms and shoulders; appellant said M.P. used tape or rubberbands on the childs arms to keep her from getting into things, but denied that M.P. hit the minor; and appellant was disheveled, dressed in babydoll pajamas, and her face was made up in a garish manner. In September 1998, T.P. was admitted to a hospital for lethargy, inability to stand up, and an altered mental state. The hospital staff reported that M.P. displayed odd conduct and said the childs medical condition was caused by demons, and the child needed prayer and fasting to break the demons apart.

Appellants mental health case manager advised respondent that appellant was diagnosed as a paranoid schizophrenic, and she had a history of not taking her medication. Respondents investigation revealed appellant had a long history with child protective services, beginning in 1986, which involved disturbing behavior by appellant and M.P. Appellant previously whipped her older child with a belt, and went to the older childs school and slugged him in the arm after accusing him of stealing money from her. In 1986, M.P. became convinced appellants older child had been sexually assaulted, and persisted in that belief despite a medical examination which revealed the child only suffered from a diaper rash. In 1994, appellant was arrested after she chased a 12-year-old with a knife and kicked the arresting officer.

Respondents investigation further revealed that appellant and M.P. had a difficult relationship, that M.P. appeared to control appellant, and appellant told a social worker that M.P. was evil. In 1993, appellant was arrested after she repeatedly hit M.P. with a wooden broom handle; when the handle broke, appellant grabbed a metal tube and continued to strike M.P. M.P. denied appellant was violent but admitted appellant suffered auditory hallucinations and was not capable of caring for T.P. M.P. stated appellant suffered a breakdown in 1990.

A social worker interviewed appellants older son, 13-year-old I.L., who stated he frequently stayed home from school to take care of T.P. because appellant and M.P. were not home. I.L. demonstrated affection and concern for his half-sister. I.L. was the person who realized T.P. was lethargic and needed to go the hospital. Before they called an ambulance, however, I.L. threw appellants pills in the trash. I.L. stated appellant and M.P. argued a lot, and appellant took medication for a chemical imbalance. When appellant failed to take her medication, she talked to her herself and said things that were not true. I.L. said appellant did not take street drugs. I.L. confirmed that M.P. put tape, socks, and rubberbands on T.P.s hands when the child tried to pull things down from tables and shelves, but they pulled them off. I.L. said he was not scared to be at home, he always had food to eat, and he appeared to be a well-adjusted child.

On September 25, 1998, the juvenile court ordered T.P. detained and she was placed in a foster home.^[3] I.L. was released to the custody of M.P., his legal guardian, after it was determined that he was well-adjusted and not at risk.^[4]

On October 26, 1998, the court convened the contested jurisdictional hearing. Appellants attorney informed the court:

Based upon my evaluation of this case in speaking with my client, I feel its imperative that I ask for Guardian Ad Litem for the mother based upon her mental state at this time, in order to assist me in preparing a proper representation of her at this time.

The court granted the request and appointed Bruce N. Meier, an attorney, as appellants guardian ad litem, and continued the jurisdictional hearing.^[5]

On November 9, 1998, the court conducted the continued jurisdictional hearing, and found the petitions allegations to be true.

On December 14, 1998, the court conducted the dispositional hearing, adjudged T.P. a dependent child, removed her from appellants custody, provided appellant with family reunification services, and ordered appellant to complete child neglect counseling, parent training, and mental health counseling. T.P. was placed in a licensed foster home.

Reunification Services

In 1999, appellant and M.P. regularly attended supervised visitations with T.P., but the quality of the visits gradually deteriorated. Appellant used profanity, often left the visitations to smoke cigarettes, failed to interact with T.P., and often argued with M.P. M.P. regularly inspected T.P.s body and accused the foster parents of abuse, and claimed the social worker and foster parents conspired to take T.P. away. M.P. claimed there were bugs all over T.P.s face, but the social worker was present and noted the claim was not true. Appellant exhibited extremely unusual behavior during the visits, such as wearing pasty white makeup on her face with dark circles painted around her eyes, rubbing her underarms with folded paper towels, and pulling a string off T.P.s clothing and using it to floss her teeth. Appellant was disoriented as to time and space, and would mumble or speak to someone not present in the room. Her speech was usually exaggerated, loud, profane, and sexual, and not related to the situation at hand.

Appellant initially participated in all aspects of the case plan, completed parent training and child neglect counseling, and attending mental health counseling. M.P. attended all of appellants counseling sessions and interfered with her mental health treatment. M.P. adamantly opposed changes in appellants medication, and impaired appellants ability to put into practice the techniques she learned in counseling. M.P. was in charge of appellants medication and withheld it because she believed it was making appellant fat. M.P. also accused the counseling staff of tampering with the medication.

Appellants psychiatric evaluation confirmed the diagnosis of chronic paranoid schizophrenia. She suffered from mood swings, depressions, delusions, and auditory and visual hallucinations. Appellant admitted previous use of marijuana and crank. Appellants counselor reported her main problem was staying on her medication, and M.P. was very controlling: As long as she is complying with the medication the child is in no danger, but her mental illness would hinder her if she was not taking the medication. Appellants case manager reported that appellant did not acknowledge she suffered from a mental illness, she did not take responsibility for her own medication, and if given the opportunity [appellant] would not take her medication or seek out counseling.

As of June 1999, T.P. was two years old, living in a licensed foster home, and her placement was stable. The foster parents reported she was well-behaved and appropriately mannered for her age. She was developmentally on target and socialized with other children. The foster parents were willing to provide a permanent home as legal guardians, but were not interested in adoption. An adoption assessment determined T.P. was likely to be adopted.

In August 1999, appellants mental health clinician from the Kern County Mental Health System reported appellant suffered from a major, chronic mental illness, she needed assistance with her daily living and care, and efforts were being made to place her in a supervised board and care facility to ensure the appropriate treatment.

... [D]ue to [appellants] chronic and disorganized lifestyle, she is not yet ready to care for her daughter .... [Appellants] mental illness requires management and stabilization before she should be considered as a full time parent; she is currently symptomatic, which includes delusional beliefs and disorganized thinking at times. It is also believed that such symptoms can be better controlled with medication, however, medication must be consistent and well managed.

Appellants mental health treatment was inconsistent because she had moved between at least three different mental health agencies. Appellant reported she was applying to the housing authority for separate housing to move out of M.P.s residence. Appellant refused to consider a board and care facility and wanted to raise T.P.

First Termination of Reunification Services

On September 3, 1999, the juvenile court conducted the six-month review pursuant to section 366.21, subdivision (e) and considered the social study reports. Appellants mental health counselor testified appellant needed to enter a board and care facility to address her mental health needs, and there may not have been appropriate follow-ups or referrals in appellants mental health services. The counselor did not think appellant had received a fair chance to become more independent and it was not in appellants best interests to live with M.P., and M.P. did not understand appellants mental illness.

The court found appellant made moderate compliance with the case plan, she made acceptable efforts, and she had cooperated, but she made only minimal progress and there was not a substantial probability that T.P. would be returned to appellants care within six months. The court terminated reunification services and scheduled a section 366.26 hearing for January 2000.

The First Appellate Review

On September 7, 1999, appellant, through her attorney, filed a petition with the superior court for writ review of the juvenile courts order which terminated reunification services and set the section 366.26 hearing. The superior court denied relief and appellant filed a petition with this court for extraordinary writ review (case No. F033972).

As of December 1999, T.P.s foster parents expressed their desire to adopt T.P., even though they were aware of her family history of schizophrenia in two of T.P.s first-degree relatives, which placed T.P. at risk of developing the disorder at a rate of more than 10 times the normal population. T.P. was in good health, friendly toward other people, and had good social skills. The social study report prepared for the scheduled section 366.26 hearing stated that appellant continued to have supervised visits with T.P. T.P. called appellant by her first name, resisted appellants affections, screamed in protest when appellant picked her up, and struggled to get away. Appellant continued to display bizarre behavior and auditory hallucinations during visitations. Appellant seemed restless and agitated, and used inappropriate and profane language in front of T.P. During the visits, T.P. displayed extreme negative and anxious behaviors. After the visits, T.P. displayed negative behavior, threw herself on the floor, and had nightmares for two days.

The social study report stated T.P. had a troubled and shallow relationship with appellant and M.P., she never asked for either of them, and she displayed negative behavior after her visits with them.

It would be beneficial to sever [T.P.s] relationship with them as her behavior has improved steadily with reduced contact with them. She demonstrates a behavior indicating an attachment and bond with the prospective adoptive parents and shows a definite preference for them. She has ability to form positive attachments. The present caretakers have expressed their desire to adopt [T.P.]. If for some reason they could not adopt her, it may be difficult to find another prospective adoptive family given her history of mental illness.

On December 3, 1999, this court filed a nonpublished opinion in case No. F033972, which granted appellants writ petition and reversed the termination of appellants reunification services. This court cited the testimony and findings at the review hearing, and found the juvenile court lacked statutory authority to terminate reunification services because it did not find appellant failed to participate in services, pursuant to section 366.21, subdivision (e). This court ordered the juvenile court to vacate the section 366.26 hearing and provide appellant with at least seven months of additional reunification services designed to facilitate the return of T.P. to appellants custody, including but not limited to services to help [appellant] address her mental health problems and achieve a level of independence from her mother.

Proceedings on Remand

On January 3, 2000, the juvenile court vacated the scheduled section 366.26 hearing. On January 13, 2000, the court ordered for appellant to receive family reunification services for an additional seven months, and noted that five months of services had already been provided to appellant. The modified case plan required appellant to maintain a relationship with T.P., participate in appropriate mental health counseling, obtain independent housing from M.P., and achieve a level of independence from M.P.

On January 28, 2000, respondent filed a petition for modification for the court to eliminate M.P.s visits and issue a no-contact order with T.P., and that M.P.s visits with T.P. were not in the childs best interests because M.P. interfered during appellants visits with T.P., M.P. displayed inappropriate behavior during her own visits with T.P., and T.P. engaged in violent outbursts after M.P.s visits. M.P. filed opposition.

On February 22, 2000, the court granted the petition for modification and issued a no-contact order between T.P. and her maternal grandmother, M.P. That order has never been reversed.^[6]

Second Termination of Reunification Services

Respondents August 2000 report stated that appellant continued to demonstrate poor parenting abilities, complete lack of disciplinary skills, bizarre behavior, and delusional and hallucinatory conduct during her supervised visits with T.P. Her symptoms and conduct indicated she was not taking the prescribed psychotropic medications, and she failed to attend or complete the requisite counseling programs. Appellants mental health counselor stated she was unstable, failed to take her medication, suffered auditory hallucinations, and refused to accept a higher level of care.

Appellant had moved into her own apartment, but it was in the same complex as M.P.s apartment, and M.P. continued to undermine and interfere with appellants treatment and case plan. When the social worker informed appellant about these issues, appellant threatened to steal my damned kid, thatll fuck you up! It was determined that appellant posed a danger to T.P. During subsequent mental health evaluations, appellant refused to cooperate or take her medication.

Appellant continued to attend supervised visitations with T.P., but displayed her lack of parenting skills and concern for T.P.s well-being. Appellant regularly allowed T.P. to be violent toward her, she yelled at T.P., and she threw a lit cigarette on the ground near T.P.s bare feet. At the beginning of a visit, T.P. would be receptive to appellant but only called her by her first name. As the visit continued, appellant was regularly unresponsive to T.P., and T.P. would start acting out. After a few minutes in appellants presence, T.P. separated from appellant, started screaming, or became violent toward appellant. After about 20 minutes, T.P. usually asked for her foster mother and to go home.

In contrast to her behavior during appellants visits, T.P.s foster parents reported she was not violent or aggressive at home. T.P. could instantly switch from being violent toward appellant, to being loving and cooperative with her foster mother. Her foster parents continued to express their desire to adopt her.

The social study report concluded that appellant failed to address her mental illness, she resisted receiving mental health services, she refused to take her psychotropic medications, and she had been noncompliant with any of the service providers involved in her case.

... [Appellant] has demonstrated a complete lack of ability to parent [T.P.]. [Appellant], herself, is at risk. She is mentally unstable and has obviously decompensated throughout this period under review. [Appellant] has done little to stabilize her own situation or utilized the services offered by [respondent], let alone prepare herself for caring for her three-year-old daughter. Returning [T.P.] to [appellants] care would place [T.P.] at great risk of abuse or neglect.

Respondent recommended termination of reunification services and scheduling a permanency planning hearing.

On September 25, 2000, the court terminated appellants reunification services and set a section 366.26 hearing.

Termination of Parental Rights

According to respondents January 2001 report, prepared in anticipation of the section 366.26 hearing, appellant continued to have weekly supervised visits with T.P., who was almost four years old, but the sessions were consistently problematic. Appellant continued to display bizarre behavior and auditory hallucations. Appellant spent the visits checking T.P. for any bruises or injuries instead of playing or interacting with her. At the end of the visits, T.P. eagerly left and searched for her foster mother. The social worker believed the visits had become slightly better in quality but that was because of the childs security in her present placement than with any improvement the mother has made in regard to either her mental condition or parenting abilities. T.P. easily departed from appellant after each visit and she was able to tolerate the visits because she realized the visits will end and she will return to the care of her foster parents where she feels safe. T.P. has now developed enough security about permanency with the caretakers that the negative behaviors are now occasional instead of consistent after the visits. T.P.s foster parents were still interested in adopting her. T.P. was previously evaluated with mild developmental delays, but her developmental skills had increased over the past year. She was in good health and there were no significant behavior or developmental problems.

The report recommended termination of appellants parental rights, T.P. was an excellent candidate for a successful adoption, and an adoption was likely to take place.

[T.P.] is currently attached to her current caretaker and does not have a significant bond to either birth parent. She is doing very well with the family with whom she is placed, and these caretakers wish to raise her to adulthood. [T.P.] is receiving the love, stability and continuity of care that she needs. Severing the legal ties of her parents will not be detrimental to [T.P.s] well-being and is in her best interest.

On March 14, 2001, this court filed the opinion in the unrelated case of In re Sara D. (2001) 87 Cal.App.4th 661 (Sara D.), and held that in a dependency proceeding, the juvenile court must conduct an informal hearing and afford a parent the opportunity to be heard prior to the appointment of a guardian ad litem, and appointment of the guardian ad litem without such a hearing violates the parents constitutional right to due process. (Id. at pp. 671-674.)

On April 3, 2001, the juvenile court conducted a hearing as to the possible application of Sara D. to this case. Ms. Smith, appellants attorney, stated appellant no longer required a guardian ad litem. Appellant addressed the court, said she understood the proceedings, and that she did not need a guardian. The court relieved Mr. Meier as appellants guardian. Appellant then moved for another attorney because she did not want T.P. adopted, and engaged in a rambling statement about the social worker, a chili dog, and her missing belt. Appellant complained Ms. Smith never talked to her, but Ms. Smith clarified she communicated with appellants guardian. The court denied appellants motion for a new attorney, and continued the matter so Ms. Smith could directly consult with appellant.

On April 24, 2001, the juvenile court conducted the section 366.26 hearing. Ms. Smith, appellants attorney, stated appellant opposed adoption, appellant had grave concerns about T.P.s health in foster care, and appellant wanted to reunify with T.P. Ms. Smith also argued appellants due process rights were violated because of the improper appointment of the guardian, based on Sara D., and such rights could not be waived. The court replied it addressed the Sara D. issues when it discharged the guardian at the prior hearing. The court terminated appellants parental rights to four-year-old T.P.

The Second Appellate Review

On April 27, 2001, appellant, through her attorney, filed a notice of appeal of the juvenile courts termination of reunification services and parental rights (case No. F038088).

On October 24, 2001, the juvenile court conducted a status hearing pursuant to section 366.3. According to respondents report, the foster parents had seen much improvement in T.P.s developmental abilities and they still intended to adopt her. T.P. had lived with them since March 1999, she displayed strong trust and attention toward her foster family, and she said that she wanted to live with them forever. There had been no visits with appellant since the termination order.

On October 30, 2001, this court filed a nonpublished opinion in case No. F038088, and reversed the juvenile courts termination of appellants parental rights and reunification services. This court found that under Sara D., the juvenile court violated appellants due process rights when it appointed a guardian ad litem without conducting the appropriate hearing and providing appellant with an opportunity to be heard, and the error was not harmless given the significant legal and constitutional rights at stake. This court remanded the matter for the juvenile court to conduct the appropriate evidentiary hearing under the following circumstances:

At the evidentiary hearing, the court shall determine whether, in the absence of a guardian ad litem for the mother, it would have entered any order more favorable to the mother at the September 2000 review hearing. In making this determination, the court may wish to consider questions including but not necessarily limited to: (1) what position, in the absence of the guardian ad litem appointment, the mother would have taken?; (2) as a result what, if any, different position the mothers trial counsel would have advanced to the juvenile court?; (3) what, if any, evidence the mothers trial counsel would have consequently introduced or countered?; (4) what would the Departments response have been?; and (5) would the juvenile court consequently have entered any order more favorable to the mother?

At the conclusion of the evidentiary hearing, if the juvenile court determines it would have entered a more favorable order and declined to terminate reunification services, the court shall reinstate reunification services for an additional period not to exceed six months and make other orders as appropriate. If, on the other hand, the juvenile court determines it nevertheless would have terminated reunification services, the court may make the necessary findings and the appropriate orders, including an order setting a new section 366.26 hearing.

The Third Termination of Reunification Services

On April 18, 2002, the juvenile court conducted the hearing on remand. The court denied appellants oral motion for appointment of another attorney. The court conducted the appropriate hearing pursuant to Sara D., again appointed Mr. Meier as appellants guardian ad litem, and ordered the transcript sealed.

Appellant never filed an appeal or writ petition to challenge the courts second appointment of Mr. Meier as her guardian, and he continued to act as her guardian throughout the pendency of this matter.

On May 13, 2002, the juvenile court conducted the review hearing. Ms. Smith, appellants attorney, stated that appellant wanted T.P. returned to her custody. Appellant testified that she did not learn much at the parenting classes, she already knew how to raise a baby, she was capable of caring for T.P. at the time of the detention, and her visits with T.P. went well. Appellant testified she only had mild depression and its got a lot to do with T.P., and T.P. is a bad little girl. Appellant testified the foster parents abused T.P., and T.P. became upset during the visits because the social workers tricked her into thinking she could go home with appellant. Appellant testified she became schizophrenic because T.P. was taken away from her. During appellants testimony, the court admonished M.P. not to signal or mouth answers to appellant.

The court found that even if appellant had testified at the previous hearings, her testimony would not have changed its ruling, it would have still terminated reunification services, and appellant still displayed mental health issues. The court again terminated appellants reunification services and set a section 366.26 hearing.

The Third Appellate Review

On May 13, 2002, appellant, on her own behalf, filed a notice of intent to file a petition for extraordinary relief (case No. F040570), as to the juvenile courts decision to conduct a section 366.26 hearing.

On August 14, 2002, this court filed a nonpublished opinion in case No. F040570, and denied appellants petition for relief as facially inadequate, pursuant to In re Sade C. (1996) 13 Cal.4th 952, 994.

According to respondents September 2002 report, prepared in anticipation of the section 366.26 hearing, T.P. was now five years old but there had been some drastic changes in her life and placement. She had lived with the same foster parents since March 1999, and they had intended to adopt her. On July 29, 2002, however, the foster parents requested respondent to remove T.P. because she made violent threats and been aggressive against other children in the house. The foster parents told the social worker that T.P. displayed aggressive behavior over the previous year, and they tried to work with T.P. about the problems without informing respondent. The social worker tried to persuade them to work through the problems with respondents help, but the foster parents were adamant about removing T.P. from the home. T.P. had attended preschool, but she was mean to the other children and showed an attitude to the teacher; this behavior was not reported to respondent until after T.P. was removed from the foster home. T.P. had seen a counselor the prior year, but the counselor decided there was no need for any counseling services.

As a result of these issues, T.P. was removed from the foster parents in August 2002. The social worker noted that T.P. did not seem upset when she was moved to another foster home, and it was almost as though there was no attachment to the previous foster parents. There were no families that were interested in adopting her because of her behavior problems and family history of mental illness. The social study report recommended a permanent plan of long-term foster care.

On September 10, 2002, appellant, on her own behalf, filed a petition for modification with the juvenile court, and requested M.P. to receive custody of T.P. On the same day, the court conducted the section 366.26 hearing. Mr. Meier, appellants guardian, made a special appearance for Ms. Smith, appellants attorney. The court did not terminate parental rights but instead ordered a case plan of long-term foster care.

Review Hearings

Thereafter, the court conducted a series of post-permanency review hearings pursuant to section 388.3, to review T.P.s placement in long-term foster care. On August 26, 2003, the court continued the plan for long-term foster care. T.P. was six years old, and had been moved to another foster home in February 2003. The new foster parents observed some unusual behavior. When she initially arrived in the foster home, T.P. displayed negative behaviors such as hitting, grabbing, and making inappropriate remarks. On one occasion, T.P. confronted a foster sibling in the middle of the night and forced a plastic object up the siblings nose. T.P. received individual and group counseling, and she was being monitored for early signs of a major mental illness. The social worker visited with T.P., who said she liked her foster home but also said her mother was ill and that was why she had not visited her.

Appellant had three visits with T.P. in 2002 and 2003. Appellant again displayed disturbing behavior, delusions and hallucinations, and she was agitated and used profanity. She was not being treated for her mental illness. Appellant was unable to control her behavior, T.P. was visibly uncomfortable, and T.P. frequently asked her, momma, why are you talkin to yourself? T.P. asked the social worker to remind appellant to take her medication so she would not talk to herself. The social worker cancelled a visit in March 2003 because appellant was hallucinating, having paranoid delusions, insisted she was being followed, and was out of control. Appellant cancelled a visit in June 2003. In August 2003, appellant contacted the social worker and asked about T.P.s well-being; the social worker encouraged her to schedule a visit, but appellant said she would let the court and the police take care of it.

On August 24, 2004, the court conducted another status hearing and again continued the plan for long-term foster care.^[7] T.P. was seven years old, and had been removed from two foster homes in the prior months because of difficult behavioral issues. T.P. used profanity and threatened to call the police to get the caretaker in trouble. The caretaker started to videotape activity in the house because of T.P.s threats. T.P. was receiving psychotropic medications and counseling. Appellant had two visits with T.P. and brought her gifts.

On November 30, 2004, T.P.s attorney filed a petition for modification with the juvenile court, on T.P.s behalf, and requested the court to order that T.P.s visits with appellant could only occur at T.P.s discretion. The petition was based on the social workers descriptions of appellants prior visits with T.P., as set forth in the social study reports. The petition asserted appellants erratic behavior frightened T.P. The matter was set for a hearing.

Respondent filed a social study report in January 2005, recommended granting T.P.s petition to restrict visitation with appellant, and recounted the history of this case and appellants conduct at the visitations, as set forth ante. T.P., who was seven years old, continued to have weekly supervised visits with appellant, but she stated very clearly to her attorney, her therapist, and the social worker that she did not want to have visits with appellant. T.P. had become increasingly fearful of appellant, refused to sit near her, and was generally unresponsive toward her. Appellant used profanity, dressed inappropriately, talked to herself, and was agitated, unfocused, and unpredictable during these visits. When a scheduled visit approached, T.P. became increasingly moody; after the visits, T.P. takes her anger and frustrations out on the whole family. Appellant had brought gifts on some of her visits, including clothes and money. T.P. continued to receive intensive therapy for her behavior and emotional problems.

On January 31, 2005, the court conducted a hearing on T.P.s petition for modification. Appellant did not appear; both her attorney and guardian were present, and they did not contest the petition. The court granted the petition and ordered that appellant would have monthly supervised visits with T.P., supervised by respondent, and the visits would be at the childs discretion.

On August 24, 2005, the court conducted another status hearing.^[8] T.P. was eight years old. She had been moved to another foster home in July 2005 because of behavior problems, and she had just been moved to Jamison Center. T.P.s attorney was very concerned about the child because she did not look well and seemed to have deteriorated. T.P.s attorney stated that based upon her own contacts with appellant and M.P., she believed they both suffered from severe mental illness, and there was now the great concern that T.P. was starting to show similar signs. T.P. was moved from the foster home because she hit younger children, lied, screamed, and used foul language. She told the caretakers that she would tell the social worker that they hit her. She had been expelled from the Boys and Girls Club because she hit and scratched the staff. The caretakers reported T.P. could be calm one minute and then explode the next. T.P. had been diagnosed with attention deficit hyperactivity disorder, depression, oppositional deficit disorder, posttraumatic stress disorder, and reactive attachment disorder. She was receiving mental health counseling and medication.

According to the social study report, appellant maintained telephone contact with the social worker, the contacts were mostly non-coherent, and she asked to visit T.P. During T.P.s monthly meetings with the social worker, the child repeatedly said she did not want to visit appellant. The court continued the long-term foster care plan.

On September 21, 2005, the court appointed a Court Appointed Special Advocate (CASA) for T.P. In December 2005, the CASA reported that she already had many visits with T.P. and found her a bright and aware child. She had not observed any unreasonable behavior or communication problems.

[T.P.] is however fearful of people leaving and has expressed anxiety over anything happening to me. She has also told me of her strong feeling about not having any contact with her biologic[al] family. She appears uncomfortable when talking about her mother or grandmother.

T.P. had been placed in a group home in Modesto, which was a stable environment but represented another change in her life. M.P. had apparently filed another petition for visitation, the CASA believed visits with M.P. would not be in T.P.s best interests because of M.P.s prior abuse and neglect, and there was nothing that could be gained from such contacts. I strongly believe that at this time it is not in her best interest to have reminders of a past that causes anxiety.^[9]

In January 2006, M.P. sent a long and rambling letter to the juvenile court, in which she accused the court of keeping T.P. from her without any good reason; that T.P. was fine while she was under the care of appellant and M.P.; appellant did a good job taking care of T.P.; T.P. was never physically harmed in M.P.s house; T.P.s problems began when she was placed in foster homes; T.P. had been physically abused in the foster homes; a foster parent burned T.P.s skin, fingers, face, and hair; T.P. was sexually assaulted by another foster child; T.P. never had any problems during the visits with M.P. and appellant; T.P. was upset during and after the visits because she wanted to go home with appellant and M.P.; M.P. discovered T.P. has been abused when she saw the child at visitations; appellant controlled M.P. rather than the opposite situation; M.P. was shocked to learn appellant had mental problems; M.P. was the victim in this case, rather than appellant or T.P.; and social workers lied about M.P. to keep T.P. away and prevent M.P. from reporting T.P.s abuse in foster homes. M.P. subsequently sent additional letters to the court expressing similar opinions, and filed a petition for visitation and/or custody based upon similar grounds. The court denied M.P.s petition.

On February 22, 2006, the court conducted another status review hearing and continued the long-term foster care plan. Appellant no longer called the social worker to inquire about T.P.; appellants last telephone call was in September 2005. T.P. was now eight years old. In August 2005, her prior foster parents took her to Jamison Center and reported they could not control her behavior. At Jamison Center, she displayed extremely difficult behavior, including hitting, biting, and kicking the staff. In October 2005, she was placed in a group home in Modesto which specialized in children with behavioral and emotional problems. The group home manager reported T.P. displayed an explosive temper while other residents were receiving attention by the staff. T.P. used foul language, she was extremely sexualized for her age, and she made serious lies and sexual accusations against the staff. She ran away from the home for several hours, along with a boy and a girl; when she returned, she claimed the girls had sex with the boy. She was being seen on a regular basis by the CASA.

T.P. was diagnosed with attention deficit hyperactivity disorder, depressive disorder, social phobia, borderline intellectual functioning, psychosocial and environmental problems, physical abuse, and parental incapacity. She told her psychologist that she heard voices at night that kept her from sleeping, but they were nice voices. T.P. was not receiving counseling because her behavior has been so unstable that counseling would not be effective at this time.

In August 2006, another social study report was filed, which revealed that nine-year-old T.P. had been moved to the Center for Children, a residential treatment level 14 group home in San Diego. This was T.P.s 13th placement since being taken into protective custody in 1998. T.P. continued to display serious behavior problems, she had been placed in restraints and a safety room on a daily basis, and she had been hospitalized twice in the acute psychiatric unit at the University of California San Diego. She repeatedly attempted to harm herself and others. Since the hospitalization, however, she showed some improvement. Her mood changed rapidly throughout the day, and she was impulsive and had difficulty bonding and trusting others. She received individual therapy two to four times a week, but had not been able to complete any group sessions because of her aggressive and impulsive behavior toward others. T.P. had improved in her willingness to participate in groups and interact with peers, and her assaults on her peers had decreased in the past month.

T.P.s psychiatrist diagnosed her with major depressive disorder with psychotic features, posttraumatic stress disorder, and reactive attachment disorder. Her medication had been adjusted based upon her diagnosis and condition. She had done well in the classroom, and her behavior was better in school than in the residential unit. The staff recommended that T.P. not be moved to a lower level of care until she showed signs of improvement in her impulsive behavior for no less than three months.

The social worker visited T.P. in San Diego in August 2006, and asked the child about M.P.:

When asked, [T.P.] stated that she remembers her grandmother [M.P.]. When asked, she stated that she would like to visit her grandmother. [T.P.] stated that her grandmother buys her things. When asked if she would like to visit her grandmother if her grandmother did not buy her things, [T.P.] stated that she would not.

During another visit, the social worker asked T.P. if she wanted to see appellant:

[T.P.] stated that she did want a visit with her mother. [T.P.] stated that her mother buys her things. At that time, [T.P.] was asked by her CASA if she would like to visit her mother if her mother did not buy her any thing and [T.P.] stated that she would not.

T.P. requested to have contact with a previous foster mother, whom she called mom, and the foster mother agreed to receiving telephone calls from her. The report concluded that long-term foster care was the only alternative for T.P. because there was no one willing or able to adopt or assume legal guardianship.

T.P.s CASA, also filed a report on T.P.s status, and agreed with the August 2006 social study report. The CASA had maintained regular contact with T.P. by telephone, mail, and visits, and continued to visit her in San Diego. The CASA and the social worker attended T.P.s promotion from third to fourth grade in San Diego. Her current therapist reported that T.P. beams when she talks about the CASA, she keeps the cards her CASA sends her and takes them to bed with her.

The CASA noted that when T.P. was still in Modesto, she acted fearful of the world around her. When the CASA took T.P. on an outing, the child held her hand and stayed close to her, and was afraid of being run over. Since T.P.s last hospitalization and medication change, her conduct had stabilized and improved, and her previous extreme behaviors had stopped. She no longer voiced fears about sharks or car accidents, and let the staff help her when she felt unsafe. The staff worked closely with her on how to handle situations without losing control or becoming violent toward others. T.P. told the CASA that she is afraid that her mother would try to get her back. She stated that made her feel scared.

On August 22, 2006, the court conducted another status review hearing.^[10] Mr. Meier, appellants guardian ad litem, stated he was appearing for Ms. Smith, appellants attorney, and Mr. Walbaum, the fathers attorney. The county counsel stated there were funding problems with T.P.s current placement in San Diego, which was a for-profit group home, but various officials were meeting to address the issue. Mr. Meier stated he had talked to appellant, and she asked that I inform the Court that she is ready when the Court chooses for her to either visit or have placement. [] And after that comment, I submit it. The court reviewed the evidentiary reports and again continued the plan for long-term foster care.

The Instant Appeal

On August 31, 2006, appellant, on her own behalf, filed a notice of appeal, which is the matter currently before this court. In the notice of appeal, appellant wrote that the foster homes caused T.P.s psychological problems, and her family could have taken care of her and avoided these issues. Appellant challenged the courts orders at the August 22, 2006, hearing and also the courts ruling in 2004 which vested T.P. with discretion to visit appellant.

On November 7, 2006, appellant, through her appointed appellate counsel, filed with this court a Motion to Declare Notice of Appeal Properly Filed. This court deferred ruling upon this procedural motion pending the resolution of the instant case.

On appeal, appellant contends she retained the ability to file the instant notice of appeal in propria persona, even though she was still represented by the guardian ad litem. Appellant also contends that her guardian ad litem failed to properly represent her interests at the August 22, 2006, status review hearing because he appeared on behalf of her attorney and failed to aggressively pursue her desire for renewed visitation and custody of T.P.

Appellant separately contends her attorney was prejudicially ineffective for failing to appear at the August 22, 2006, hearing and the attorney should have raised a myriad of issues in support of her desire to resume visits with T.P., and reunite T.P. with her maternal family. Appellant contends that all of T.P.s emotional problems were the result of the instant dependency proceeding and her multiple foster home placements, and that T.P.s emotional condition deteriorated because the court limited appellants visits with her.

DISCUSSION

I.

THE GUARDIAN AD LITEM

Appellant contends that even though the juvenile court appointed a guardian ad litem to represent her, and that appointment still exists, she retained the ability to file the notice of appeal in this case in propria persona because she is challenging whether the guardians appointment was appropriate. Appellant also contends her guardian ad litem failed to represent her interests when he appeared on behalf of her attorney at the August 22, 2006, status review hearing.

A. The Duties and Powers of guardian ad litem

We begin with the well-settled principles as to a guardian ad litems duties and powers. 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 a rational manner in the preparation of the case. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.) Where the party has been afforded a fair hearing, the standard for review is whether there is substantial evidence in the record to support a finding of incompetence. (Sara D., supra, 87 Cal.App.4th at pp. 673-674.)

The appointment of a guardian ad litem for a parent in a dependency proceeding is significant because such an appointment removes the control of litigation from the parent, whose vital rights are at issue, and transfer it to the guardian. (In re Jessica G., supra, 93 Cal.App.4th at pp. 1186-1187.) Consequently, the parents due process rights must be protected before a guardian ad litem is appointed. (Sara D., supra, 87 Cal.App.4th at pp. 671-672.) Those rights are satisfied if the parent consents to the appointment of a guardian ad litem or, if the parent does not consent, the court holds an informal hearing in which the parent has an opportunity to explain why a guardian ad litem is not required. (Id. at pp. 668, 671-672; In re Daniel S. (2004) 115 Cal.App.4th 903, 912 (Daniel S.).)

[A] guardian ad litem represents the interests of a person in legal proceedings who lacks capacity to represent himself or herself in those proceedings. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965.) A guardian ad litem is not a party to the action, but merely a partys representative [citations], an officer of the court [citation]. He is like an agent with limited powers. [Citations.] The duties of a guardian ad litem are essentially ministerial. [Citation.] (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453 (Christina B.).)

An attorney has a duty to speak with his or her client. Once a guardian ad litem is appointed, however, the attorney communicates with the guardian ad litem and not the client. (Daniel S., supra, 115 Cal.App.4th at p. 915.) A guardian ad litem oversees the attorneys work to ensure the incompetents legal interests are protected. (Williams v. Superior Court (2007) 147 Cal.App.4th 36, 51.)

The function of a guardian ad litem for an incompetent party in an adversarial proceeding is well understood. In the adversarial context, the guardian ad litems function is to protect the rights of the incompetent person, control the litigation, compromise or settle the action, control procedural steps incident to the conduct of the litigation, and make stipulations or concessions in the incompetent persons interests. [Citation.] In such cases, the guardian ad litems role is more than an attorneys but less than a partys. [Citation.] (In re Charles T. (2002) 102 Cal.App.4th 869, 875-876.)

The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardians charge in mind. Specifically, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit. (Christina B., supra, 19 Cal.App.4th at p. 1453.)

The guardian ad litems powers are thus subject to the fiduciary duties owed to the incompetent, and the requirement that court approval be obtained for certain acts. (J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 965.) Like any other officer of the court (receiver, conservator, referee, etc.), a guardian ad litem is subject to court supervision. Should a guardian ad litem take an action inimical to the legitimate interests of the [incompetent], the court retains the supervisory authority to rescind or modify the action taken. (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1502.) Moreover, a party aggrieved by the order adjudging her incompetent and appointing a guardian, had the right to appeal therefrom if she so desired. [Citations.] The rule that a person under disability must appear by general guardian, or guardian ad litem, does not apply to a case where the very question involved is the validity of the order of guardianship itself and where the appeal is taken directly from that order. (Guardianship of Gilman (1944) 23 Cal.2d 862, 864.)

In Berry v. Chaplin (1946) 74 Cal.App.2d 652 (Berry), the guardian ad litem of an unborn child brought a paternity action against the defendant. (Id. at p. 653.) The guardian ad litem, the defendant, and the childs mother entered into a stipulation providing that if blood tests showed the defendant was not the father, the action would be dismissed with prejudice. (Id. at pp. 653-657.) Although blood tests subsequently showed the defendant was not the father, the guardian ad litem refused to dismiss the action and the trial court denied the defendants motion to dismiss. (Id. at p. 654.) Berry held the trial court had properly denied the dismissal motion because the guardian ad litems limited powers did not include the power to enter into the stipulation, and the trial court had no power to approve it. (Id. at p. 657.)

A minor, who must of necessity appear by his guardian, is not bound by the admissions of the guardian which mean the sacrifice or giving away of the wards property. [Citations.] The relationship between a guardian ad litem or the attorney whom he employs and the minor is not the same as that between an attorney and an adult client. It is the duty of the guardian and the attorney to protect the rights of the minor, and it is the duty of the court to see that such rights are protected. The court may set aside or disregard concessions of the guardian which have not already been judicially approved and which are shown to the court to have been improvidently made. Any acts or concessions that apparently waive or surrender any material right of the minor, such as the right to a trial, should be set aside unless they be shown to be beneficial or, in any event, not prejudicial to the rights and interests of the minor. [Citation.] The appointment of a guardian ad litem is not a bare technicality and the office of guardian involves more than perfunctory or shadowy duties. It is the duty of a guardian ad litem to protect or defend a suit, as the case may be. The guardian ad litem can neither admit anything against nor waive anything in favor of his ward, but the adversary of the infant must be required to prove his whole case. [Citations.] [][]

Neither the guardian ad litem nor the attorneys for the minor, nor both, had power to consent to a judgment depriving the minor of its right to claim support from defendant without the opportunity of a trial at which all available evidence could be introduced for consideration by the jury, not merely such evidence as the parties considered proper for the determination of the issue involved. (Berry, supra, 74 Cal.App.2d at pp. 657-658.)

In Cloud v. Market Street Ry. Co. (1946) 74 Cal.App.2d 92 (Cloud), a wrongful death case, the court held that while a guardian ad litem cannot prejudice the substantial rights of a minor by any admissions, waivers or stipulations. [Citations.] [T]his rule is not ... carried to the extent of depriving the guardian ad litem ... of the power to bind the minor in the merely procedural steps incident to the conduct of the litigation and does not prevent a guardian ad litem ... from assenting to such arrangements as will facilitate the determination of the case in which the rights of the infant are involved. (Id. at p. 101.) Cloud further noted: The question whether to demand a jury trial or waive one and try the case to the court is one of trial tactics and procedure only, and the waiving of a jury trial does not in any sense affect the substantial rights of a party. (Id. at p. 102.) Cloud thus held that a guardian ad litem may waive the right to a jury trial; not that such a guardian