In re Joann E.

• Decision Date: 15 November 2002
• Docket Number: (Contra Costa County Super. Ct. No. J0100615).,No. A097606.,A097606.
• Citation: In re Joann E., 128 Cal.Rptr.2d 189, 104 Cal.App.4th 347 (Cal. App. 2002)
• Parties: In re JOANN E., a Person Coming Under the Juvenile Court Law. Contra Costa County Department of Children and Family Services, Plaintiff and Respondent, v. Kim S., Defendant and Appellant.
• Court: California Court of Appeals

128 Cal.Rptr.2d 189

104 Cal.App.4th 347

In re JOANN E., a Person Coming Under the Juvenile Court LawContra Costa County Department of Children and Family Services, Plaintiff and Respondent, v.Kim S., Defendant and Appellant.

No. A097606.

(Contra Costa County Super. Ct. No. J0100615).

Court of Appeal, First District, Division 3.

November 15, 2002.

Janet L. Holmes, County Counsel, for plaintiff and respondent.

Janet Hite Saalfield, Sausalito, under appointment by the Court of Appeal for defendant and appellant.

POLLAK, J.

Kim S. is Joann E.'s grandmother, and was Joann's guardian ad litem when a dependency petition was filed with respect to Joann.A short time after the petition was filed, the juvenile court appointed a guardian ad litem for Kim.On the record before us, it appears that there was no notice and no hearing when the guardian was appointed for Kim, and therefore that Kim's right to due process was violated.We reverse the jurisdictional and dispositional orders and remand for further proceedings.

Background

The record reflects that from her birth in March 1997, Joann was cared for in part by her grandmother, Kim.Kim's husband helped take care of Joann for the first two years of her life.For a short time when Kim was evicted from her apartment, Joann stayed with the Prices, a couple who were long-time friends of Kim's, and whom Kim described as Joann's godparents.Kim was diagnosed with hepatitis in 1978 and with HIV in 1994.She was on medication for HIV until 1999, when she decided to discontinue the medications because of the side effects.At the subsequent jurisdictional hearing, she testified, however, that she felt better and that her blood work showed that she was healthier since she stopped taking the medications.On March 12, 2001, Kim was vomiting and asked Carla Price to take her to the hospital.While at the hospital, Kim was detained for approximately seven hours pursuant to Welfare and Institutions Code section 5150.¹At the time of the jurisdictional hearing, she had not again been detained pursuant to section 5150.

On March 15, 2001, the Department of Children and Family Services for Contra Costa County(the Department) filed a juvenile dependency petition under section 300 in regards to Joann.The petition alleged that Joann was within the jurisdiction of the juvenile court under section 300, subdivisions (b) and (g).²Specifically, as amended by the juvenile court, the petition alleges: "b-1 On March 13, 2001 the child's guardian, Kim S[.], was exhibiting signs of mental instability, which necessitated her to be hospitalized and placed on a 5150 hold.She was exhibiting symptoms including, but not limited, to paranoid delusions, grasping at imaginary objects, talking about `demons,' refusing to eat, unable to sleep, and being incoherent and forgetful, [¶] b-2 The child's guardian states she has a life threatening illness.At times she exhibits bizarre and erratic behavior.[¶] b-3 The child's guardian's mental stability has recently rapidly deteriorated and her ability to provide care for the child is significantly compromised."

At the continued jurisdictional hearing on March 22, 2001, Commissioner Silber continued the matter for appointment of a guardian ad litem for Kim, although there is no evidence in the record indicating what prompted this to be done.The minute order from March 22 indicates only a single appearance by "Woods," apparently a deputy from the county counsel's office.On April 12, 2001, the matter was again before Commissioner Silber and the record reflects that Kim was represented by a guardian ad litem,³ although the record does not reflect any proceedings between the March 15 hearing and the March 22 hearing, nor does it indicate when the guardian ad litem was appointed, or that any factual inquiry preceded his appointment.From the record before us, it appears that Kim was not present at this hearing.The jurisdictional hearing was continued to May 14, 2001, from which point Judge Haight replaced Commissioner Silber as the presiding judicial officer.On that date, Kim indicated her dissatisfaction with both her attorney and her guardian, which the court treated as motions pursuant to People v. Marsden(1970)2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 to have both removed from the case.The court heard argument outside the presence of the other parties and denied both motions.

On June 15, 2001, Kim again made a Marsden motion against her attorney.The court granted this motion on the basis that there had been a breakdown in the relationship.During that Marsden hearing, although she did not ask that he be replaced, Kim again expressed her displeasure with her guardian ad litem, staling, "I'm sure he does a good job for somebody.I'm sure he's supposed to be here to help me, but it didn't seem that way."The proceedings were then continued for new counsel to be accepted by Kim.

At the continued jurisdictional hearing on September 6, 2001, Kim testified that her doctor told her that the hallucinations to which the petition refers were caused by dehydration.While at the hospital, she was evaluated by two hospital social workers.These social workers were never called to testify, but their observations are in the record as part of the "Malinda S." jurisdiction report submitted by the case social worker.⁴According to the jurisdiction report, one of the social workers would have testified that Kim was having trouble sleeping and eating, that "she reported seeing and hearing things that were not there," that she was "incoherent at times, was irrational, had difficulty understanding [the social worker] and other staff members and was very unstable."The other social worker would have testified that Kim "feared that eating would cause her harm," that she"would suddenly lean over, cry and then sit up as though nothing had just happened," that she"would grasp at unseen objects and ... said that she was seeing things `floating' before her," and that she tried to leave the room during the interview and "appeared fearful and confused."The court found the allegations of paragraph (b)(1) of the petition to be true—that on March 13, 2001 Kim exhibited signs of mental instability that required her to be hospitalized and held under section 5150, and that she exhibited "paranoid delusions, grasping at imaginary objects, talking about demons, refusing to eat, unable to sleep, and being incoherent and forgetful."The court also found that "the child's guardian [states she] has a life threatening illness" and that "[a]t times, ... she exhibits bizarre and erratic behavior."Finally, as relevant to this appeal, the court found that Kim's "mental stability has recently rapidly deteriorated and her ability to provide care for the child is significantly compromised."

At the dispositional hearing on December 4, 2001, the court found that returning Joann to Kim would create a substantial risk to Joann's well-being that there was clear and convincing evidence that Joann's welfare required her to be removed from Kim's care because there was a substantial danger to Joann's physical health, or would be if she were returned to Kim, and that there were no reasonable means to protect Joann without removing her from Kim's custody.⁵The court also signed an order finding that Joann required "extensive assessment, testing and I.E.P. meetings" and that Kim was not capable of making educational decisions for Joann.The court found that appointment of a surrogate parent to represent Joann's educational interests was appropriate and terminated Kim's educational rights.⁶The court also signed a reunification plan that provided for supervised visitation with Kim a minimum of one hour a month and no phone calls from Kim to Joann.The plan required Kim to take parenting classes, participate in a psychiatric evaluation and comply with all recommendations of the psychiatrist, submit to a medical evaluation, comply with all medical orders and take medication prescribed to her, submit to random drug testing to ensure abstinence, and participate in individual therapy.Based on a notice of intent to file a writ petition lodged by Kim with the Court of Appeal on July 11, 2002, we take judicial notice of a June 18, 2002 order setting the matter for a hearing to terminate Kim's parental rights pursuant to section 366.26 initially scheduled for October 16, 2002.⁷On October 9, 2002we issued an order staying that hearing pending further order of this court.

Kim appeals from the December 4, 2001 dispositional order and reunification plan.

DISCUSSION

Kim first challenges the appointment of a guardian ad litem to represent her interests in the dependency proceedings.Kim argues that the jurisdictional proceedings and everything that followed must be reversed because the guardian that represented her in those proceedings was appointed in violation of her right to due process.We agree, and although the result regrettably will prolong the jurisdiction of the juvenile court over Joann, we do not reach Kim's remaining contentions on appeal since this issue is dispositive.⁸

Timeliness

The Department first argues that Kim's challenge to the appointment of the guardian ad litem is untimely because "time for appeal or writ of these decisions expired long before the instant appeal was filed ..."At oral argument, the Department urged that the doctrine of laches should apply to prevent Kim from sitting on her rights through multiple contested hearings and then challenging the validity of the proceedings when displeased with their outcome.However, the Department cites no authority for the proposition that Kim was obligated to challenge the appointment of the guardian ad litem prior to the final resolution of the case.If there is no specific statutory requirement that a writ be taken before a final, appealable order or judgment is entered, review of intermediate rulings and orders may occur...