Christina B., In re

• Decision Date: 01 November 1993
• Docket Number: No. D019029,D019029
• Citation: 23 Cal.Rptr.2d 918,19 Cal.App.4th 1441
• Court: California Court of Appeals Court of Appeals
• Parties: In re CHRISTINA B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. AGATHA B., Defendant and Appellant.

Page 918

23 Cal.Rptr.2d 918

19 Cal.App.4th 1441

In re CHRISTINA B. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. AGATHA B., Defendant and Appellant.

No. D019029.

Court of Appeal, Fourth District, Division 1, California.

Nov. 1, 1993.

[19 Cal.App.4th 1443] Joseph T. Tavano, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel and Gary C. Seiser, Deputy County Counsel, for plaintiff and respondent.

Patricia L. Davis, La Mesa, under appointment by the Court of Appeal, for minors.

KREMER, Presiding Justice.

Agatha B. appeals the juvenile court's order declaring her children Christina and Daniel B. dependents (Welf. & Inst.Code, §§ 360, subd. (c)), removing them from her physical custody (§ 361, subd. (b)(1)), and placing them with their father Walter B. (§ 361.2, subd. (b).) She contends the court erred in appointing her a guardian ad litem and in accepting the guardian ad litem's waiver of her due process rights. We agree with the second contention.

BACKGROUND

Agatha and Walter married in 1979 but later separated. Christina was born July 14, 1982, and Daniel was born October 20, 1985. The family's history includes several Child Protective Service (CPS) referrals.

In 1988, Walter hit Christina with a belt but the investigating social worker determined it was an isolated incident. The case was closed after both parents were counseled. In 1989, there was a report of Agatha's homicidal ideation toward Walter and the children. This case was closed due to insufficient evidence of danger. In 1990, it was reported Agatha used a belt on Christina, Agatha had been diagnosed as On February 11, 1993, Christina reported the following abuse occurred on February 1. She was in the bathtub and grabbed a towel from the rack. The rack fell, chipping a soap dish. Christina called for her mother. When Christina reached for another towel some mouthwash fell from the edge of the sink and spilled. Agatha yelled and hit her with her fist. Christina hit her head on the tub and chipped her tooth.

paranoid schizophrenic, and she thought someone was going to kill the children. The case was closed due to lack of demonstrable danger. In 1991, there was a report Agatha hit Christina with a brush and wrote letters stating she wanted to beat up neighbors, her husband, and individuals from Rohr Industries. It was determined there was no evidence of danger. In 1992, Agatha sent threatening letters to former employers. The social worker believed she was homicidal and suicidal. The Department of Social Services (DSS) worked with the family under a voluntary contract and Agatha participated in parenting classes.

Christina also told social worker Dallas Flemister her mother slapped her in the face and punched her in the shoulder; the usual punishment was spanking with a belt; Agatha had a gun with a lock on it; and she yelled at "things." Christina said she got along well with her mother and her father, who she saw three to four times a week, and was not afraid to return to her mother.

On February 11, 1993, Daniel told Flemister he got along well with his mother and father who he saw often. He said he was disciplined by spanking with a belt but did not get many spankings, and Agatha had a gun with a lock on it and yelled sometimes.

On February 11, 1993, the children were detained at Hillcrest Receiving Home (Hillcrest).

On February 12, 1993, Flemister interviewed Agatha. Concerning the February 1 incident, Agatha said she went to the bathroom to wash Christina's back, Christina reached for the towel rack, and the towel knocked the soap dish and chipped it. Agatha told Christina to be more responsible and not to worry. Christina grabbed another towel and knocked over a bottle of mouthwash. Agatha cleaned up the mouthwash and tapped the back of Christina's head with three fingers. Agatha was remorseful and took Christina to the dentist the following day.

Agatha admitted to Flemister she had a gun but said it was always locked and she kept it by her side with the key pinned to her bra. She got the gun because Walter had threatened her; neighbors and county employees had also threatened her. When Walter punched her, she told him to get out or she would shoot. She said someone was pulling strings and she had called an FBI agent to have him check on the children at Hillcrest. She also mentioned the CIA, and said she had clearances from all agencies and could save Flemister the time it would take him to check her clearances and criminal record.

Flemister interviewed Walter on February 12, 1993. Walter said he wanted Agatha to get help and stabilize; she was a good mother when she was stable and took her medication. He had contact with the children three to five times a week. He wanted them to be safe and out of Hillcrest, and could provide them with a temporary home until he applied for Aid to Families of Dependent Children (AFDC) and got a bigger place. Agatha had pulled the gun on Walter, but he did not think she would harm him or the children with it.

On February 16, 1993, DSS filed petitions under section 300, subdivision (a) with respect to Christina and section 300, subdivision (j) with respect to Daniel. The petitions set forth the February 1 bathtub incident. On February 16, the court ordered the children detained with Walter and a psychological evaluation and supervised visits for Agatha.

Psychologist Victor Frazao evaluated Agatha on February 27, 1993. Agatha claimed Christina's tooth was decalcified and would have broken easily, sought to minimize her own actions, and said she had told the social worker that Christina had a habit of lying. She admitted hitting Christina with a racket but blamed the

children and others for her own problems with the children. Dr. Frazao concluded Agatha's intelligence quotient was in the bright normal range and her language development was strong, but she was suspicious and defensive, her thinking was distorted, and she suffered from paranoid schizophrenia. He recommended supervised visitation, parenting classes, counseling, and an evaluation for medication to help her deal with stress.

APPOINTMENT OF THE GUARDIAN AD LITEM

On March 30, 1993, Agatha's attorney requested a guardian ad litem be appointed for her. The court set a hearing for April 19.

At the outset of the April 19, 1993, hearing the court stated:

"[T]he court needs to find one of the following in order to appoint a guardian ad litem for the mother: the court needs to find either that the mother lacks the capacity to understand the nature or consequences of the juvenile court proceeding, or that she is unable to assist her attorney in the preparation of her case.

"The standard will be a preponderance of the evidence...."

Agatha submitted to the court her own self evaluation rebutting that of Dr. Frazao, letters, and a stipulated order from family court services. She testified concerning three newspaper clippings ¹ which she submitted to the court to show her "knowledge of reality versus reality." The first clipping, entitled "For Three Dollars, Barbie Tells Special Secrets," concerned a Barbie doll collector who could speak for all the Barbie dolls in the world and claimed she could tell special secrets through her dolls. Agatha noted this woman was "unique and eccentric" and commented: "And obviously, well, if an inanimate object can speak, extrinsically I would be interested." She concluded: "So we know that this is her reality. But under normal circumstances and in that average population or the normal population, this is bogus propaganda."

The second clipping, "They're Eyes, Ears for Cops in Beat 515," discussed a network of civilian criminologists with psychic abilities who report criminal activities in their neighborhoods to assist local authorities. Agatha said she was part of the network and had made contact on several occasions with the group's spokesperson. The spokesperson had tried to track her for several years as a test of the tracking system but she had evaded him.

The third article, "C.I.A. to Let Public in on Secrets of Learning a New Language Fast," was published to teach proper communication. Agatha explained: "And this is also reality. And this also affects everyone environmentally inner and outer space or intrinsically and extrinsically speaking." She concluded: "And what I wanted to point out here is that, and this is only documenting the proof of what I was trying to tell people who were trying to tell me I was crazy, and I suggested and urged them that I was not and that I can get proof from Washington, D.C., and I have."

Agatha told of a widespread conspiracy against her of which the dependency proceeding was a part. Among other things, her apartments had been broken into, her fashion designs had been stolen, and she had been spied upon. She suffered only from stress and physical difficulties. She had been given haloperidol as a tranquilizer but she did not have to take medication because it caused side effects; the doctors had okayed this.

Agatha testified she understood DSS had filed petitions as to both Christina and Daniel and there was going to be a trial. The following then occurred:

"THE COURT: And what do you think is going to happen at that trial?

"THE MOTHER: I think that we're going to have an equitable hearing, and both sides are going to be listened to, and I think that one consideration that-- "MR. TRAVIS [Agatha's counsel]: It's part of the conspiracy you told me about last week?

well, there were a lot of considerations that were not provided me that were provided my husband, which shows me that there has already been bias. It's part of what all this other inter-relational stuff is involving.

"THE MOTHER: Previously leading up to this whole thing."

Agatha said she understood the purpose of...