In re Jaclyn S.
| Decision Date | 25 April 2007 |
| Docket Number | No. A114754.,A114754. |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re JACLYN S., a Person Coming Under the Juvenile Court Law. Sonoma County Human Services Department, Plaintiff and Respondent, v. Lisa S., Defendant and Appellant. |
Steven M. Woodside, Sonoma County Counsel, Phyllis Gallagher, Deputy Sonoma County Counsel, Counsel for Plaintiff and Respondent.
Elena E. Matsis, by Appointment of the First District, Appellate Program, Counsel for Defendant and Appellant.
This is an appeal by a mother from an order terminating her parental rights. (Welf. & Inst.Code, § 366.26.)1 We affirm.
Appellant's child was born on December 17, 2005. According to hospital records, the mother came in off the street in labor. She was dirty and disoriented and uncooperative, but the child was delivered without problem. The child was premature and had a cleft palate, inhibiting the ability to nurse. After the delivery, the mother was noted to be very anxious and paranoid and suffering from hallucinations. Both the mother and child tested positive for methamphetamine and amphetamine, with ratings indicating very recent use. The child was placed in the intensive care nursery. According to hospital records, the mother's condition and behavior caused the hospital to call a mental health facility, which was familiar with the mother and responded she was not schizophrenic, but did suffer from psychosis secondary to polysubstance abuse. The hospital mental health staff determined the mother was not a threat to herself or others, but reported she was uncooperative and would not follow any recommendations for treatment. A friend of the family told nursing staff the mother had been homeless for four years, and had a history of psychiatric disorders and alcohol abuse.
A petition was filed on December 29, 2005, alleging a failure to protect and a lack of provision for support. The petition was supported by the report of a social worker for the county human services agency (the agency). The mother had told the hospital social worker she had handled her own prenatal care. She also said she had had regular prenatal care, but she refused to sign a release that would allow the social worker to confirm that claim. She stated she had a place to live, but gave several different stories about where she was living. She did not know who the child's father was, explaining she had had a sexual encounter with a man but did not know his name. She refused to sign a medical release for the child. The social worker also reported the mother had another child, who had been detained in 2001 after the mother had been arrested for being under the influence of methamphetamine. The mother's parental rights in that child were terminated in 2003, and the child has been adopted.
The mother and her attorney appeared at a hearing held on January 17, 2006. The juvenile court, at the request of the mother's attorney, and after discussing the matter with the mother, appointed a guardian ad litem for the mother, and set the matter over to February 2, 2006, for the jurisdictional hearing. The mother appeared with the guardian ad litem and her attorney on February 2. Her attorney informed the court the guardian ad litem had explained to the mother her right to contest the jurisdictional report and the consequences of submitting the matter on the report, and the mother had agreed to submit the matter on the report. The court discussed the matter with the mother, who, while complaining that the report was inaccurate and stating a concern that the child was being put up for adoption, confirmed she had spoken with the guardian ad litem and had agreed that the matter should be submitted on the report.2 The court found the allegations of the petition to be true, and exercised jurisdiction over the child. The mother had told the social worker she had no Indian ancestry, but at the hearing the mother asserted her mother's father "is full, almost full-blooded Indian." The court therefore ruled the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) might apply. The mother provided the court with a permanent mailing address, which the court ruled would be used for purposes of notice unless or until the mother provided written notice of a new permanent mailing address.
The matter was put over to February 22. The mother had been notified of the hearing, but failed to appear. The mother's attorney and the guardian ad litem were present, as were the attorneys for the child and for the agency. The mother's attorney requested a contested hearing, which was set for March 20, 2006.
The mother did not appear at the March 20, 2006 dispositional hearing. By this time, the mother's visitation with the child had been suspended, as it had been determined her behavior during scheduled visits posed a high risk of safety to the child and to the social worker monitoring the visits.3 The social worker reported she had spoken to the mother by telephone, informing her of the date of the hearing. The guardian ad litem reported she had been attempting to reach the mother by telephone, using three different numbers that had been provided to her. Three weeks previously, she had reached a man named Ron who said he wasn't going to have anything to do with the mother. The guardian ad litem also reached the maternal grandmother, who stated she had no idea where the mother was, but said her home was always a resource for the mother. The mother had never contacted the guardian ad litem, but the friend, Ron, had delivered an envelope of handwritten notes from the mother that morning. The guardian ad litem had urged him to have the mother show up for the hearing. The guardian ad litem and the mother's attorney then submitted the matter on the agency's report and recommendations. The guardian ad litem signed a waiver of rights on the mother's behalf.
The court found reunification services had been terminated in connection with the mother's older child because the parents had failed to reunify with that child and the mother had not made reasonable efforts to treat the problems that had caused the child to be removed from her care and custody. The court also found the mother had a history of extensive abusive and chronic use of drugs or alcohol, and had resisted prior court-ordered treatment for the problem during the three-year period immediately prior to the filing of the petition in this case. It found the mother had received actual and constructive notice of the proceedings, but had voluntarily absented herself from them. It found the mother had made no progress toward alleviating or mitigating the causes necessitating removal of the child from her custody. The court ruled reunification efforts would not benefit the child or be in the child's best interests. It set the matter over for a section 366.26 selection and implementation hearing.
The selection and implementation hearing was held on July 24, 2006. The mother was present, as were her attorney and the guardian ad litem. The child had been living with a foster family for several months, had adjusted well and was responding positively to all the family members. The foster parents wished to adopt her. The mother's attorney reported the guardian ad litem had informed her the mother had requested a new attorney, a new guardian ad litem and a new judicial officer. The guardian ad litem had instructed the attorney to submit the matter to the court with the mother's comments. The court discussed the situation with the mother, telling her it was not going to step down, was going to deny the mother's requests and would be accepting the direction of the guardian ad litem to submit the matter on the agency's report. The court found it likely the child would be adopted and that termination of parental rights would not be detrimental to the child. It therefore terminated the mother's parental rights and ordered a permanent plan of adoption.
The mother claims error in the appointment of the guardian ad litem.
As a threshold matter, we agree with the parties that the mother did not forfeit her right to make this claim by failing to attack the appointment by writ. (See In re Joann E. (2002) 104 Cal. App.4th 347, 353-354, 128 Cal.Rptr.2d 189 (Joann E.) and In re Jessica G. (2001) 93 Cal.App.4th 1180, 1190, 113 Cal.Rptr.2d 714 (Jessica G.).)4
As applied to dependency cases, section 372 of the Code of Civil Procedure requires the appointment of a guardian ad litem if a parent is incompetent. (In re Sara D. (2001) 87 Cal.App.4th 661, 667, 104 Cal.Rptr.2d 909 (Sara D.) A parent is incompetent if the parent is unable to understand the proceedings or cannot assist the attorney in protecting the parent's interests in the companionship, custody, control and maintenance of the child. (In re Enrique G. (2006) 140 Cal.App.4th 676, 684, 44 Cal.Rptr.3d 724 (Enrique G.); Jessica G., supra, 93 Cal.App.4th at p. 1186, 113 Cal.Rptr.2d 714; Sara D., supra, 87 Cal.App.4th at p. 667, 104 Cal.Rptr.2d 909.) When the court has knowledge of the parent's incompetency, its failure to appoint a guardian ad litem is error. (In re Lisa M. (1986) 177 Cal.App.3d 915, 919 225 Cal.Rptr. 7.) But case law also has established it is error, and a denial of due process, to appoint a guardian ad litem if the parent has not agreed to the appointment or is not truly incompetent, because the effect of the appointment is to remove the control of litigation from the parent. (In re C.G. (2005) 129 Cal.App.4th 27, 32-35, 27 Cal.Rptr.3d 872 (C.G.); In re Daniel S. (2004) 115 Cal.App.4th 903, 912, 9 Cal. Rptr.3d 646 (Daniel S.); Joann E., supra, 104 Cal.App.4th at pp. 354-359, 128 Cal. Rptr.2d 189; Jessica G., supra, at pp. 1186-1189, 113 Cal.Rptr.2d 714; Sara D., supra, at pp. 667-674, 104 Cal.Rptr.2d 909.) There is a split in authority...
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