In re Daniel S.

• Decision Date: 11 February 2004
• Docket Number: No. D042710.,D042710.
• Citation: 9 Cal.Rptr.3d 646,115 Cal.App.4th 903
• Court: California Court of Appeals
• Parties: In re DANIEL S., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Leticia S., Defendant and Appellant.

9 Cal.Rptr.3d 646

115 Cal.App.4th 903

In re DANIEL S., a Person Coming Under the Juvenile Court LawSan Diego County Health and Human Services Agency, Plaintiff and Respondent, v.Leticia S., Defendant and Appellant.

No. D042710.

Court of Appeal, Fourth District, Division 1.

February 11, 2004.

Pierce M. Kavanagh, under appointment by the Court of Appeal, for Defendant and Appellant.

John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Gina A. Rippel, Deputy County Counsel, for Plaintiff and Respondent.

Mary Elizabeth Handy, under appointment by the Court of Appeal, for Minor.

HUFFMAN, J.

Leticia S. appeals the order removing her son, Daniel S., from her custody under Welfare and Institutions Code section 361.¹Leticia asserts the order must be reversed because she was not properly noticed.She also asserts her due process rights were violated when the court appointed a guardian ad litem for her without proper notice.Although we conclude Leticia was improperly served and the court should not have appointed a guardian ad litem without affording Leticia the opportunity to be heard on the issue of the appointment, both errors are harmless beyond a reasonable doubt.Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Leticia is a chronic paranoid schizophrenic.She was supposed to treat her schizophrenia by taking a daily oral medication and a monthly injection.

By June 2003, Leticia had not refilled the prescription for her oral medication since December 2002 and had not received her injection since April 2003.Later in June, she refused to allow family members into her home to see Daniel, who was then nine months old.Although it is not clear from the record, her refusal to let anyone see Daniel for more than one week apparently caused family members to seek assistance from the San Diego County Health and Human Services Agency(the Agency) or the police.Leticia was placed on a section 5150² hold because she was considered a danger to herself and others, and Daniel was placed in protective custody.

A social worker attempted to speak to Leticia at the hospital about Daniel's removal, but Leticia's doctor would not let her do so because he believed it would be detrimental to Leticia's mental health.The doctor also would not allow Leticia to appear at the detention hearing.

In mid-July, the social worker was allowed to speak with Leticia.However, she was cautioned that Leticia was not "processing anything," and was "very angry, very agitated[,] and aggressive."Three days later, when the social worker attempted to see Leticia in person, hospital personnel said Leticia's mental health remained unstable and she was still not "processing anything."Consequently, the social worker contacted Leticia by telephone and advised her of the upcoming jurisdictional and dispositional hearing.Leticia wrote down the place, date, and time of the upcoming hearing, but was very incoherent and agitated.As a result, the social worker terminated the telephone call because she believed Leticia did not comprehend its purpose.Hospital personnel also told the social worker that Leticia would not be allowed to attend the jurisdictional and dispositional hearing if she remained in the intensive care unit, because she was "too much of a risk."

In late July, the court appointed a guardian ad litem for Leticia and continued the jurisdictional and dispositional hearing to allow him an opportunity to speak with her at the hospital.At the August jurisdictional and dispositional hearing, the guardian ad litem and counsel³ appeared on Leticia's behalf.Counsel presented no evidence on Leticia's behalf and submitted at the hearing.The court made a true finding on the petition and ordered reunification services.

DISCUSSION

I.NOTICE

Leticia contends the jurisdictional and dispositional order must be reversed because she was not properly noticed and consequently, the court never obtained jurisdiction over her.She also asserts the court erred when it appointed a guardian ad litem without notice to her.

Because the interest of a parent in the companionship, care, custody, and management of his or her children is a compelling one, before depriving a parent of this interest, the state must afford him or her adequate notice and an opportunity to be heard.(In re Emily R.(2000)80 Cal.App.4th 1344, 1351, 96 Cal.Rptr.2d 285.)Notice must be reasonably calculated to apprise the parent of the pendency of the action and afford him or her an opportunity to present any objections.(Ibid.)

A.Notice of the Detention Hearing

Leticia argues she did not receive proper notice of the detention hearing.Under section 290.1, once a social worker determines a child shall be "retained in custody,"he or she must file a dependency petition and serve notice of the hearing to, among others, the mother of the child.(§ 290.1 subd. (a)(1).)Notice may be written or oral, but must be given as soon as possible after the filing of the petition.(§ 290.1, subds.(c), (e).)

Here, the social worker attempted to speak with Leticia about Daniel's removal the same day she signed the petition, presumably to serve her with notice of the detention hearing.⁴However, Leticia's physician refused to let the social worker speak with Leticia or, we assume, to leave a copy of the petition, because it would be detrimental to Leticia's health.Because the social worker attempted to serve notice but was prevented from doing so by Leticia's physician, there was no due process violation when Leticia did not receive notice of the detention hearing.(See, e.g., McKenzie v. City of Thousand Oaks(1973)36 Cal.App.3d 426, 430, 111 Cal.Rptr. 584[compliance with procedural statute may be excused when it is "impracticable, impossible[,] or futile" to comply].)

B.Notice of the Jurisdictional and Dispositional Hearing

Leticia contends she did not receive proper notice of the jurisdictional and dispositional hearing because the notice was sent to her home, even though the court and the Agency knew she was in the hospital.

Under the Welfare and Institutions Code, Leticia must receive notice of the jurisdictional and dispositional hearing.(§ 291, subd. (a)(1).)Because Daniel was detained and Leticia was not present at the detention hearing, she had to be noticed either by personal service or by certified mail, return receipt requested.(§ 291, subd. (e)(1).)

Here, the social worker did not personally serve Leticia.Although she attempted to see Leticia, presumably to serve her, she was told that Leticia was not processing anything and was angry and agitated.⁵Although the record does not indicate hospital staff prevented the social worker from seeing Leticia, we infer the social worker did not believe doing so was useful or practical, thereby rendering personal service impossible.The only attempt to serve Leticia by mail was when the court sent her a copy of the minute order from the detention hearing by certified mail.However, this minute order was sent to Leticia at her home address, not at the hospital, even though the record clearly showed Leticia was at the hospital.Leticia, citing to In re Arlyne A.(2000)85 Cal.App.4th 591, 102 Cal.Rptr.2d 109andDavid B. v Superior Court(1994)21 Cal.App.4th 1010, 26 Cal.Rptr.2d 586, asserts this service was insufficient because the Agency and the court knew she was hospitalized and not at home.Neither case aids our analysis because neither addresses service to a person who has a mental illness that renders him or her incapable of comprehending notice.⁶

The issue presented here is whether Leticia's significant mental illness eliminated the duty to provide notice to Leticia at her actual location.We believe the court and the Agency did not have to serve Leticia with notice, given her mental state, but had to provide Leticia's temporary conservator⁷ with notice of the proceedings.⁸In drawing this conclusion, we are guided by Code of Civil Procedure section 416.70, which addresses service of summons on a conservatee.We recognize dependency proceedings are special proceedings governed by their own rules and statutes.(§ 300 et seq.;Cal. Rules of Court, rule 1440 et seq.)We also recognize rules applicable to civil cases are not applicable to dependency actions unless expressly made so (In re Angela R.(1989)212 Cal.App.3d 257, 273, 260 Cal.Rptr. 612;In re Jennifer R.(1993)14 Cal.App.4th 704, 711, 17 Cal.Rptr.2d 759), and there is no provision in the Welfare and Institutions CodeadoptingCode of Civil Procedure section 416.70.However, because that section is the only legislative provision we have located on the subject of service to an incompetent person for whom a conservator has been appointed, we appropriately look to it for guidance.(SeeWilliams v. Superior Court(1993)5 Cal.4th 337, 352, 19 Cal.Rptr.2d 882, 852 P.2d 377.)

Code of Civil Procedure section 416.70 provides: "A summons may be served on a person (other than a minor) for whom a guardian, conservator, or similar fiduciary has been appointed by delivering a copy of the summons and of the complaint to his guardian, conservator, or similar fiduciary and to such person, but, for good cause shown, the court in which the action is pending may dispense with delivery to such person."Here, Leticia's mental state constituted sufficient good cause to dispense with delivery to her.However, because she had a temporary conservator, service should have been made on that person.Accordingly, Leticia was not properly notified of the jurisdictional and dispositional hearing.

C.Notice To Appoint the Guardian Ad Litem

Leticia asserts the court violated her due process rights by appointing a guardian ad litem without notice to her.She also asserts the court could not properly appoint a guardian ad litem until she was properly served with notice of the dependency petition.

In any proceeding in which an incompetent person is a...