In re James F.

• Citation: 70 Cal.Rptr.3d 358,174 P.3d 180,42 Cal.4th 901
• Decision Date: 17 January 2008
• Docket Number: No. S150316.,S150316.
• Court: United States State Supreme Court (California)
• Parties: In re JAMES F., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Marcus M., Defendant and Appellant.

70 Cal.Rptr.3d 358

42 Cal.4th 901

174 P.3d 180

In re JAMES F., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Marcus M., Defendant and Appellant.

No. S150316.

Supreme Court of California.

January 17, 2008.

John L. Dodd, under appointment by the Supreme Court, Tustin, and Ellen Forman Obstler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory and James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer B. Henning; John J. Sansone, County Counsel (San Diego), John E. Philips, Chief Deputy County Counsel and Paula J. Roach, Deputy County Counsel, for California State Association of Counties as Amici Curiae oh behalf of Plaintiff and Respondent.

KENNARD, J.

In a dependency case (Welf. & Inst. Code, § 300 et seq.), the juvenile court may terminate a parent's interest in a child's companionship, care, and custody after the child has been removed from the parents' home, efforts to reunify the family have failed, and adoption has been identified as the permanent placement goal. (Id., § 366.26, subd. (b)(1); see In re Celine R. (2003) 31 Cal.4th 45, 52-53, 1 Cal. Rptr.3d 432, 71 P.3d 787.) Because a basic civil right of the parent is thus at stake (In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826), significant due process safeguards have been built into the dependency scheme (id. at p. 307, 19 Cal.Rptr.2d 544, 851 P.2d 826), including a right to court-appointed counsel for a parent who cannot afford to retain counsel (Welf. & Inst.Code, § 317).

In a dependency case, a parent who is mentally incompetent must appear through a guardian ad litem, to whom the parent yields management and control of the litigation. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912, 9 Cal.Rptr.3d 646; In re Sara D. (2001) 87 Cal.App.4th 661, 665-667, 104 Cal.Rptr.2d 909.) Before appointing a guardian ad litem for a parent in a dependency proceeding, however, the juvenile court must hold an informal hearing at which the purpose and powers of a guardian ad litem and the reasons for believing the parent incompetent are explained to the parent and, if the parent does not consent to the guardian ad litem's appointment, the parent is given an opportunity to argue that a guardian ad litem is not required. (In re Sara D., supra, at pp. 663, 671-672,104 Cal.Rptr.2d 909.)

At issue here is whether, as the Court of Appeal concluded, a juvenile court's error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding requires automatic reversal of an order terminating the parent's parental rights, or whether instead the error is subject to harmless error review. We conclude that the error may be harmless and was so here. Accordingly, we reverse the Court of Appeal's judgment.

I

James F. was born on July 11, 2003. His mother is Cynthia F. and his father is Marcus M. On September 11, 2003, when James was two months old, the Los Angeles County Department of Children and Family Services (Department) removed him from his parents' custody and placed him with a foster family.

On September 16, 2003, the Department filed a petition alleging that James F. came within the juvenile court's dependency jurisdiction because he had suffered, or there was a substantial risk that he would suffer, serious physical harm or illness as a result of his mother's failure or inability to supervise or protect him and because, due to his mother's substance abuse, she was unable to provide regular care for him. (Welf. & Inst.Code, § 300, subd. (b).) On the same day, the juvenile court held a detention hearing (id., § 315). The court appointed attorneys to represent James, mother Cynthia F., and father Marcus M. The court found a prima facie case and ordered James detained in the Department's custody.

On October 9, 2003, the Department filed an amended petition containing additional allegations. Of relevance here, the Department alleged in the amended petition that Marcus M. had been diagnosed with bipolar disorder, that this disability "endangers the child's physical and emotional health and safety and places the child at risk of physical and emotional harm and damage," and that Marcus "has demonstrated numerous emotional and mental problems" rendering him "unable to regularly care for [James]." In a report filed the same day, the Department stated that Marcus had "an extensive criminal history" that included a felony conviction in June 1998 for aggravated assault on a police officer (Pen.Code, § 245, subd. (c)); that he had been admitted to Patton State Hospital in November 1998 and again in November 2000 after being found incompetent to stand trial (id., § 1370); that he "appeared agitated, unstable, and unpredictable" when a Department social worker attempted to interview him at his father's house on September 25, 2003; that he was "incoherent" during a telephone conversation with a social worker on September 26, 2003; that he "appeared anxious, edgy, and even scared" and "seemed to have difficulty just staying calm and focused" when interviewed at a Department office on September 29, 2003; and that his father reported that Marcus had been diagnosed with bipolar disorder.

At a hearing on October 9, 2003, parents Marcus M. and Cynthia F. denied the amended petition's allegations, and the juvenile court set the matter for a contested jurisdictional hearing on December 1, 2003. On October 23, 2003, the superior court, in a separate proceeding, appointed Marcus's parents conservators of his person. (See Prob.Code, § 1801, subd. (a).)

In a report prepared for the jurisdictional hearing, the Department stated that it had subpoened and reviewed Patton State Hospital's mental health records relating to Marcus M. According to the report, the hospital records indicated that Marcus "suffers from severe psychological problems, and his behavior has improved while prescribed a steady regimen of psychotropic medication." At the hearing on December 1, 2003, Marcus was not present, and the juvenile court received information that he was in custody on a charge of robbery (Pen.Code, § 211). The court put over the jurisdictional hearing to a later date.

On December 16, 2003, Marcus M. appeared in juvenile court for the jurisdictional hearing with appointed attorney Linda Nakamura. Attorney Claudette Boehm told the court she was "available for appointment" as a guardian ad litem for Marcus, and the court replied, "You will be appointed." The court announced that all parties had agreed to submit the matter on the Department's reports. The court then addressed Marcus, showing him a document that would waive his rights to a trial, to cross-examine witnesses, to compel witnesses to come to court, and to testify on his own behalf, and also waiving the privilege against self-incrimination. When the court asked whether Marcus agreed "to give up all of those rights," he replied: "Yes. Yes. Why, no, I don't think that's right, your Honor, because I want a trial, because I want to get my baby back." The court assured Marcus that "[t]hey are going to give you services to try to help you get the child back" and that "[b]y entering a plea, we are going to take jurisdiction over your case, and I am going to be ordering the Department to provide services for you to try to help you get the child back." Marcus agreed he wanted that to happen. His attorney joined in the plea, concurred in the waivers, and stipulated to a factual basis for jurisdiction. The court accepted Marcus's plea to the amended petition, found the allegations of that petition true, and declared James F. to be a dependent of the court.

The attorney representing James F. expressed concern over "whether or not the record is sufficient to warrant an appointment" of a guardian ad litem and whether Marcus M. was competent to waive his trial rights. Marcus's attorney volunteered to "make a record" and began to question him, as follows:

Ms. Nakamura: "Mr. [M.J, do you need help today working on your case? Do you need to have two attorneys instead of one?"

Marcus M.: "Yes."

Ms. Nakamura: "Does it help you to have another attorney help you with your case?"

Marcus M.: "I understand."

Ms. Nakamura: "Does it help you to have another attorney help you with your case? Did you like having another attorney help you understand?"

Marcus M.: "Yes. Yes."

James F.'s attorney objected that this was not the proper inquiry, and the juvenile court permitted him to question Marcus M., as follows:

James F.'s attorney: "Mr. [M.], do you know what you are here for today?"

Marcus M.: "For my children, to get my son back."

James F.'s attorney: "Do you know that today was set for a trial of the issues in this case that you are alleged, things that you have been alleged to have done?"

Marcus M.: "Oh."

The attorney for the Department commented that Marcus M. appeared to be looking to his relatives for cues. The juvenile court said it had decided to continue the matter to give Marcus's attorney and guardian ad litem more time "to confer and to discuss this proceeding further" with Marcus, who then asked the court, "What is the GAL [guardian ad litem]?" The court replied, "That's Ms. Boehm, your second lawyer." James F.'s attorney suggested a hearing in chambers to determine whether Marcus needed a guardian ad litem. The juvenile court replied: "I think I can fairly say that he's in a position or a condition where a [guardian ad litem] would be to his benefit" and "[t]hat finding I would make today." The court struck Marcus's plea to the allegations of the amended petition.

On December 19, 2003, the Department placed James F. in the home of his maternal grandparents. In a report filed on March 10, 2004, the Department...