Filed 4/16/18 In re A.P. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re A.P. et al., Persons Coming Under the Juvenile Court Law. H043400
(Santa Clara County
Super. Ct. Nos. 1-14-JD-022997,
1-14-JD-022998, 1-14-JD-022999)

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES,

Plaintiff and Respondent,

v.

T.P.,

Defendant and Appellant.

In this juvenile dependency proceeding, three children were removed from their mother’s custody and placed with their father in India. The mother appeals, contending there was insufficient evidence for the juvenile court to assert jurisdiction over the children. She also challenges the juvenile court’s order appointing a guardian ad litem for her before the dispositional phase, and asserts that the guardian ad litem improperly waived her right to a contested disposition hearing. We will affirm.
I. BACKGROUND
In late 2014, the Santa Clara County Department of Family and Children’s Services filed juvenile dependency petitions regarding appellant T.P.’s three children (a 10-year-old boy, a five-year-old boy, and a six-month-old girl). The petitions alleged that T.P. had a history of mental health problems and as a result had failed to protect the children from physical harm (Welf. & Inst. Code, § 300, subd. (b)) and caused them emotional damage (Welf. & Inst. Code, § 300, subd. (c); unspecified statutory references are to this code). T.P. was experiencing ongoing delusions. She believed the children’s father was poisoning her and that he put transmitters in her car. She also believed the father was romantically involved with another woman and that he and the woman were physically abusing the two older children. T.P. was admitted to a hospital for mental health issues in October 2013, and after discharge refused any follow up care or medication.
Though he and T.P were still married, the children’s father had moved to India before the youngest child was born. According to him, T.P.’s strange behavior started around July 2013, when she began to believe there were people in their home and backyard. T.P. also reported to the police that the father was bringing a woman to the house when the children were left with a babysitter. She said the woman physically abused the two older children, hitting them in the back of their heads. The oldest child recounted to a social worker that his father and a woman would come to the house and hit and kick each other, but his demeanor suggested he had been coached to report that. He also told police he had been sexually abused by his father’s companion, but was unable to provide meaningful details and the officer who took the report did not believe the abuse occurred. A social worker interviewed the oldest child and likewise deemed the accounts of abuse not credible.
The dependency petitions were resolved by settlement. T.P. agreed to accept informal services for the two younger children, and the petitions related to them were dismissed. The petition regarding the oldest child was sustained. T.P. retained custody of him but was required to participate in family maintenance services. The juvenile court ordered her to attend a parenting class, complete a psychological evaluation, and participate in counseling. She was also ordered to start therapy for the oldest child within 14 days.
New dependency petitions were filed in July 2015, and the children were removed from T.P.’s custody. The petitions again alleged that because of her mental health issues T.P. had failed to protect the children and caused them serious emotional harm. T.P had not complied with the order to obtain therapy for the oldest child and the children were showing signs of escalating emotional distress. They continued to be exposed to T.P.’s delusions––she often called police about nonexistent intruders at the house, and also began reporting noises coming from the attic. She told the children that the noises were being made by their father.
A clinical psychologist evaluated T.P. and found her mental functioning to be “seriously impaired.” She diagnosed T.P. with several mental illnesses, including borderline personality disorder, paranoid personality disorder, and delusional disorder. (As described by the psychologist’s report, borderline personality disorder is characterized by a pattern of instability in interpersonal relationships due to sudden and dramatic shifts in the person’s view of others. Paranoid personality disorder is characterized by pervasive suspiciousness and mistrust of others, and delusional disorder is marked by the presence of one or more delusions where the criteria for schizophrenia are otherwise not met.) The psychologist reported that T.P.’s mental illness inhibited her ability to safely care for the children and that they were modeling their behavior after their mother’s and adopting her hallucinations as their own.
The juvenile court conducted a contested jurisdictional hearing. The psychologist who concluded T.P. was mentally ill testified to her findings. A social worker described behavior by the two older children, such as hiding under furniture and acting physically aggressive, which indicated increasing fear and anxiety. The social worker believed the youngest child (by then 17 months old) was at risk of developing similar emotional problems since she was being raised in the same environment. Another social worker testified that she observed T.P.’s unusual behavior on multiple occasions and saw that it made the children very fearful.
T.P. denied having mental health problems. She accused her husband of physically abusing her, though she denied ever saying he made the noises in the attic. She said she continued to believe that both her husband and a woman with whom he was romantically involved physically and sexually abused the children, because that is what the two older children told her.
T.P. retained her own psychologist who evaluated her and testified that she did not have borderline personality disorder or paranoid personality disorder, nor did he find any evidence of delusional disorder. He criticized the methodology and conclusions of the psychologist who diagnosed T.P. with those disorders, opining that the diagnoses were based on invalid test results. He attributed any unusual behavior by T.P. to hypervigilance caused by a history of abuse by her husband, not mental illness. A child psychologist who had several sessions with T.P. and the children testified that behaviors exhibited by the middle child were consistent with Post Traumatic Stress Disorder, which can be caused by physical or sexual abuse, or by witnessing violence.
The juvenile court sustained the petitions. It found that the two younger children came within the jurisdiction of the juvenile court under section 300, subdivisions (b) [failure to protect from physical harm] and (c) [serious emotional damage], and that the disposition in the previous dependency proceeding had not been effective in protecting the oldest child (§ 387). The matter was set for a contested disposition hearing before a different judge. Before the date for the disposition hearing, that judge conducted a hearing to determine whether a guardian ad litem should be appointed for T.P. based on an inability to understand the proceedings or assist her counsel in litigating the case.
After questioning T.P. and her attorney, the juvenile court found that T.P. was not competent to understand the proceedings and was unable to adequately assist counsel. The court then appointed a guardian ad litem for her. Several months later, counsel for T.P.––with the consent of the guardian ad litem––submitted the issue of disposition for decision without a contested hearing. The juvenile court found that the children’s emotional health could not be protected unless they were removed from their mother’s care, and that reasonable efforts had been made to avoid removal. The children were ordered removed from T.P.’s custody and placed with their father in India.
II. DISCUSSION
A. SUBSTANTIAL EVIDENCE SUPPORTS THE JURISDICTIONAL FINDINGS
T.P. contends there is insufficient evidence to support the juvenile court’s jurisdictional findings. The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the juvenile court’s jurisdiction. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) We review the juvenile court’s findings for substantial evidence. (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 646.) That standard of review is deferential: the only question is whether substantial evidence in the record, even if contradicted, supports the decision. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378–1379.) We resolve conflicts in the evidence in favor of the decision. We do not reweigh the evidence, nor do we independently evaluate it. (Ibid.)
One of the statutory bases for jurisdiction here is Welfare and Institutions Code section 300, subdivision (c): “The child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.” The juvenile court found that the children came within that description, and there is substantial evidence in the record to support that finding. There was evidence that T.P. was having delusions about intruders coming into the house and about the children being physically and sexually abused, and as a result of being exposed to those delusions the two older children began to believe they had been abused and became afraid of their father. A psychologist who evaluated T.P. found her to be seriously impaired by several mental disorders which inhibited her ability to safely care for her children. Two social workers voiced concern for the children’s wellbeing were they to be left in T.P.’s care. And both older children were showing escalating symptoms of fear and anxiety, making it likely the youngest child would begin experiencing similar issues as she emotionally matured. On this record, the juvenile court could reasonably conclude that the children were suffering serious emotional damage because of their mother’s conduct, or at least were at a substantial risk of such damage if left in her care. (See In re D.P. (2015) 237 Cal.App.4th 911, 919 [jurisdiction under section 300, subdivision (c) does not require a showing of actual emotional suffering by the child; a substantial risk the child will experience emotional suffering as a result of parental conduct will suffice].)
We acknowledge the ample conflicting evidence before the juvenile court: T.P. testified she was a victim of spousal abuse and there was evidence that the symptoms of emotional harm displayed by the children were caused by trauma from their father’s abusive behavior. T.P.’s psychologist reported that she was not mentally ill, and another psychologist indicated that the children were affected by PTSD, possibly from witnessing violence. But in our review for substantial evidence, we do not reweigh the evidence or resolve conflicts in it. (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 927.) Our role is limited to determining whether sufficient evidence supports the juvenile court’s decision, even if other evidence points to a contrary conclusion.
T.P. argues there is a lack of evidence of causation––that even if the evidence is sufficient to conclude she was delusional, there is no evidence that the children were exposed to her delusions. But T.P. lived with the children and was their primary caregiver during the relevant time period, so it is a reasonable inference that if she was delusional, the children were exposed to her behavior. And while T.P. testified that she came to believe the children were abused by their father because that is what they told her, it appears equally plausible from the record (if not more plausible) that the children reported abuse which had never occurred only because T.P. convinced them it had.
T.P. also argues the evidence is insufficient because of comments made by the juvenile court when announcing its decision, expressing a belief that the psychologist who diagnosed T.P. with multiple disorders was not a very good witness, which made the judge doubt the accuracy of the diagnosis. But the court went on to note that the way T.P. behaved “supported [the psychologist’s] diagnosis of some type of borderline personality disorder.” So the court did not wholly reject the psychologist’s testimony even if it was not impressed with her as a witness. The judge’s comments do reflect a lingering uncertainty about the nature and severity of T.P.’s mental illness. But even without a definitive psychological diagnosis, there is sufficient evidence to support the jurisdictional finding because there is evidence that T.P.’s conduct presented a risk of emotional damage to the children. (See In re Matthew S. (1996) 41 Cal.App.4th 1311, 1320 [dependency jurisdiction affirmed where children were not yet emotionally damaged, but were confused by their mother’s delusions and “forced to shoulder a tremendous burden”]; see also In re A.J. (2011) 197 Cal.App.4th 1095, 1104 [mother’s false reports of domestic violence upset child and supported finding of substantial risk of emotional damage].)
Because we have decided there is sufficient evidence to support the jurisdictional findings under section 300, subdivision (c)––and by extension, the jurisdictional findings for the oldest child under section 387––we need not decide whether there is sufficient evidence to support the additional findings the juvenile court made under section 300, subdivision (b). (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [“When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence.”].)
B. SUBSTANTIAL EVIDENCE SUPPORTS THE APPOINTMENT OF A GUARDIAN AD LITEM
T.P. also contends that the juvenile court erred by appointing a guardian ad litem without her consent before the dispositional phase of the proceedings. When a guardian ad litem is appointed to represent a parent in a dependency proceeding, the guardian is vested with the power to manage and control the litigation. (In re James F. (2008) 42 Cal.4th 901, 904.) A parent who is mentally incompetent must appear through a guardian ad litem. (Ibid.) But because child custody is “one of our most basic civil rights,” due process protections must be provided before a guardian is appointed for a parent without consent. (In re Sara D. (2001) 87 Cal.App.4th 661, 668.) The parent must be given notice of the intended appointment and an opportunity to be heard. (Ibid.) The juvenile court must then determine whether the parent has the capacity to (1) understand the nature and consequences of the proceeding, and (2) assist counsel in preparing the case. (In re James F., supra, 42 Cal.4th 901, 910.) If the parent is unable to do either of those things, appointment of a guardian ad litem is proper.
We review the juvenile court’s finding that a parent is not competent to proceed without a guardian ad litem for substantial evidence. (In re Esmeralda S. (2008) 165 Cal.App.4th 84, 92.) Here again, we defer to the juvenile court’s findings that are supported by sufficient evidence in the record and will not reweigh the evidence or exercise our own judgment in evaluating it.
T.P. does not challenge the process by which the guardian ad litem was appointed; she contends only that there was insufficient evidence to support the decision that a guardian was necessary. At a hearing on the subject, T.P.’s appointed counsel urged that T.P. should have a guardian ad litem because her behavior rendered her unable to assist counsel. The attorney informed the court that T.P. was hostile and refused to communicate. When T.P. did communicate by e-mail, she insisted on copying the message to third parties, eliminating the attorney-client privilege. T.P. addressed the court and voiced her objection to the appointment of a guardian ad litem. She said she had been able to effectively communicate with her previous, privately retained attorneys and wanted to retain a new private attorney (who appeared with her at the hearing). That attorney also addressed the court and stated her belief that T.P. was competent and could assist her counsel.
The juvenile court found T.P. not competent to understand the nature and consequences of the proceedings and unable to assist her counsel in preparing the case, and appointed a guardian ad litem. T.P. disputes those findings and argues that she demonstrated she was fully cognizant of the proceedings and understood their consequences. She maintains the juvenile court’s finding to the contrary stemmed from an erroneous belief that the judge at the jurisdictional hearing found the psychologist’s report diagnosing T.P. with several mental illnesses to be accurate, when in fact the previous judge did not make that finding. Even if T.P. is correct that the evidence is insufficient to conclude she was unable to understand the proceedings, we still must affirm the decision to appoint a guardian ad litem if sufficient evidence supports the alternative basis for the appointment: that T.P. was unable to assist her counsel in preparing the case.
The juvenile court found that, “[w]ith regard to the second prong, and that is her ability to assist counsel in the preparation of a defense, the information today is consistent with information presented on the record throughout this dependency case and that is [T.P.] is not able to take advice from her counsel regarding legal strategy. She is not able to confer rationally about the facts of the case with her counsel.” There is sufficient evidence in the record to support the findings that T.P. was unable to take advice from her counsel or rationally confer about the case. The court-appointed attorney representing her stated T.P. refused to communicate about the case and was hostile. And as the juvenile court noted when appointing the guardian ad litem, T.P. had changed attorneys over a dozen times during the litigation––the court listed on the record 14 different attorneys who had represented her since the proceedings began. While a party’s decision to retain a different attorney during litigation does not in and of itself evidence an inability to assist counsel, the fact that T.P. discharged so many attorneys, along with the juvenile court’s firsthand observations of her behavior during numerous court appearances, her history of questionable mental health, and her current attorney’s description of a refusal to communicate, is sufficient to support the finding that T.P. was unable to assist counsel in preparing the case. Though T.P. provided explanations for why she terminated each of her previous attorneys and assured the juvenile court things would be different with the next attorney, on this record the court was justified in concluding otherwise. Substantial evidence supports the appointment of a guardian ad litem based on T.P.’s inability to assist her counsel.
T.P. also contends that the appointment of a guardian ad litem denied her the constitutional right to counsel of her choice because after the guardian was appointed, the court denied T.P.’s request to substitute yet another attorney to replace her court-appointed attorney. But we have found no error in the appointment of the guardian ad litem, and once the guardian was duly appointed T.P. no longer had the authority to manage or control the litigation. (In re James F., supra, 42 Cal.4th 901, 904.) So she was not denied the right to counsel of her choice; rather, the choice of counsel was properly made by her guardian ad litem. We therefore find no error based on a denial of the right to choose counsel.
C. NO ERROR IN ACCEPTING THE WAIVER OF A CONTESTED DISPOSITION HEARING
Several months after the guardian ad litem appointment, T.P.’s counsel asked the juvenile court to vacate the date set for a disposition hearing. Counsel indicated that T.P. (who was not present in court) was refusing to communicate with her and as a result she was unable to effectively defend T.P.’s position at a contested hearing––indeed, given the refusal to communicate, she did not even know what T.P.’s position was. T.P. had also specifically instructed the guardian ad litem not to take any action on her behalf.
T.P. now contends that the juvenile court erred by accepting the waiver of a contested disposition hearing. She relies on In re Christina B. (1993) 19 Cal.App.4th 1441, 1454, for the proposition that a guardian ad litem “may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit.” T.P. argues that the guardian ad litem’s waiver of a contested jurisdictional hearing did not provide any countervailing benefit to her and was therefore improper.
We decline to follow In re Christina B.’s holding that a guardian ad litem may compromise the right to a contested hearing only in return for a significant benefit. Christina B.’s characterization of a guardian ad litem’s role as “ ‘essentially ministerial’ ” and “more than an attorney’s but less than a party’s,” (In re Christina B, supra, at pp. 1453, 1454) is at odds with the Supreme Court’s more recent pronouncement in In re James F., supra, 42 Cal.4th 901, 910 that “[t]he effect of the guardian ad litem’s appointment is to transfer direction and control of the litigation from the parent to the guardian ad litem, who may waive the party’s right to a contested hearing.” Further, the record shows it was T.P.’s own conduct that precipitated the waiver of the contested hearing: she refused to communicate with her counsel, did not attend the hearing where the waiver occurred, and had instructed her guardian ad litem to take no action on her behalf. Under those circumstances, it was not error for the juvenile court to accept the guardian’s waiver of a contested disposition hearing.
III. DISPOSITION
The jurisdiction and disposition orders are affirmed.

____________________________________
Grover, J.




WE CONCUR:




____________________________
Premo, Acting P. J.




____________________________
Bamattre-Manoukian, J.







H043400 - In re A.P., et al.; DFCS v. T.P.