In re Sara D.
| Decision Date | 14 March 2001 |
| Docket Number | No. F034964.,F034964. |
| Citation | 104 Cal.Rptr.2d 909,87 Cal.App.4th 661 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re SARA D., a Person Coming Under the Juvenile Court Law. Kern County Department of Human Services, Plaintiff and Respondent, v. Taylor D., Defendant and Appellant. |
Colin J. Heran, under appointment by the Court of Appeal, Sacramento, for Defendant and Appellant.
B.C. Barmann, Sr., County Counsel, and Mark L. Nations, Chief Deputy County Counsel, for Plaintiff and Respondent.
In this case of first impression, we conclude that before appointment of a guardian ad litem for a parent in a Welfare and Institutions Code section 3001 proceeding, the parent's right to due process requires an informal hearing and an opportunity for the parent to be heard. The failure to provide the parent with an opportunity to be heard in this case requires reversal of the jurisdictional and dispositional orders.
A petition was filed on September 17, 1999, alleging that Sara D., born in September 1993, came within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) and (c). Count I alleged Sara's mother, appellant Taylor D., was unable to control Sara's extreme behavior, placing Sara at risk of serious harm or illness. It also alleged Taylor's home was considered a health and safety hazard as a result of a visit on September 16, 1999, and Taylor allegedly suffered from a bipolar disorder and personality disorder requiring various prescription medications rendering her unable to care for Sara. Sara's father, Louis D., allegedly failed to maintain a relationship with Sara and failed to protect the child from the neglect of Taylor.
Count II alleged Sara has suffered or is likely to suffer serious emotional damage as a result of Taylor's conduct as evidenced by Sara's out-of-control behavior and arguments between Sara and Taylor.
A contested jurisdictional hearing was scheduled for November 1, 1999. On that date, the court relieved Taylor's appointed counsel and continued the hearing to November 19. On November 19, Taylor appeared with new counsel and testimony was received from Jenee Morris, the social worker assigned to the case by respondent Kern County Department of Human Services (Department). On December 13, the contested jurisdictional hearing resumed, and testimony was received from Taylor's therapist, Terrance Willey. The matter was then continued to December 16.
On December 16, the court appointed a guardian ad litem for Taylor. The events preceding the appointment form the basis for this appeal. Before presenting any testimony on the 16th, the attorneys requested a conference with the judge in chambers. Taylor did not attend the conference. Bruce N. Meier, Taylor's appointed attorney, told the court he was having difficulty communicating with Taylor. He felt she either did not appreciate or understand the concepts or issues which were being presented to the court, and she was confused about the proceedings. Mr. Meier requested that he be relieved as counsel for Taylor or that the court appoint a guardian ad litem for her.
The court stated Taylor's conduct appeared to be consistent with the features of the borderline personality defect diagnosed by her therapist. The court concluded a guardian ad litem should be appointed because (1) it had already relieved one attorney as counsel for Taylor, (2) they were in the middle of a contested hearing on jurisdiction, and (3) it would probably be more beneficial to Taylor to have a guardian ad litem appointed to assist Mr. Meier in preparation for the hearing and assist her in understanding the proceedings.
The court then reconvened in the courtroom and chose a continued date for the jurisdictional hearing. After the date of January 12, 2000, was selected, the following occurred:
On January 12, Taylor, Mr. Meier and Taylor's guardian ad litem were present in court. Without presenting any further evidence, Mr. Meier informed the court that, after consulting with Taylor's guardian ad litem and therapist, he had reached an agreement with the other attorneys on a resolution of the jurisdiction issue. Under the agreement, the allegation that the home was a health and safety hazard was stricken, the allegation that Taylor suffered from a bipolar disorder was amended to reflect that she suffered from a borderline personality disorder as testified by her therapist, and count II was dismissed. With these amendments, Mr. Meier and the other attorneys submitted the jurisdiction issue to the court based on the recommendations contained in the social study. The court found it had jurisdiction and set a dispositional hearing for January 27.
On January 27, the court granted the request of Taylor's guardian ad litem to be relieved and appointed a new guardian ad litem. The dispositional hearing was continued to January 31. Evidence, including the testimony of Taylor and Louis, was received on January 31 and February 1. At the conclusion of the testimony, the court awarded Louis legal and physical custody of Sara, with Taylor granted only supervised visitation rights. The court then dismissed the petition.
Taylor raises two challenges to the appointment of the guardian ad litem. First, she challenges the sufficiency of the evidence to support the appointment. Second, she argues that the procedure used in this case violated her rights to due process.
Code of Civil Procedure section 372 provides that in any proceeding in which an incompetent person is a party, that person shall appear by a guardian ad litem appointed by the court in which the action is pending. As a preliminary matter, the parties disagree on what standard a trial court should use in determining whether an adult is incompetent and requires the appointment of a guardian ad litem. Appellant, citing Sarracino v. Superior Court,2 argues that the correct standard is to be found in Probate Code section 1801,3 while respondent, citing In re Christina B.,4 argues the correct standard is found in Penal Code section 1367.5
In Sarracino, a mother was appointed the guardian ad litem for her 24-year-old daughter in support proceedings against the father. The petition to appoint a guardian ad litem alleged the daughter was not competent to manage her own financial affairs or to protect her own property. The application included a declaration which set out facts to support these grounds and a consent to the appointment signed by the daughter.6
On appeal, the father contended the appointment of the guardian ad litem was improper because the petition did not set forth facts to bring the daughter within the provisions of Code of Civil Procedure section 372. The Supreme Court held the allegations in the petition sufficiently described a person for whom a conservator could be appointed,7 and that such allegations also described a person who was incompetent within the meaning of Code of Civil Procedure section 372.8
In Christina B., the court held the proper standard to determine competency was whether the preponderance of the evidence established the mother lacked the capacity to understand the nature or consequences of the juvenile court proceeding, or that she was unable to assist her attorney in the preparation of her case.9 The court rejected the test found in Probate Code section 1801 because it addressed an individual's ability to provide for material needs and did not speak to the court's primary concern, the ability of a person to take part meaningfully in the proceedings.
In re R.S.10 impliedly adopted the test for incompetency found in Penal Code section 1367. A mother appealed to this court from a judgment which terminated her parental rights pursuant to former Civil Code section 232 (now Fam.Code, § 7800 et seq.). The mother had mild developmental disabilities as well as a dependent personality disorder. She argued that she received inadequate assistance of counsel because her attorney did not request the court to inquire into her competency. This court rejected the mother's argument, concluding that despite her conditions, the record established that "[N]either the trial court nor [the mother's] trial counsel ignored evidence that [the mother's] abilities were so limited that she was effectively rendered incompetent to understand the nature of the proceedings or to assist her counsel in representing her interest so as to require appointment of a guardian ad litem."11
In In re Lisa, M.12 the court found error in the trial court's failure to appoint a guardian ad litem for the mother after the trial court made express findings that the mother was not able to understand the dependency proceedings in which she was a participant.
We do not read the language of Code of Civil Procedure section 372 providing that an incompetent person includes "`a person for whom a conservator may be appointed,'" as indicating that Probate Code section 1801 is the exclusive standard for determining when an adult is incompetent. Christina B. correctly observed that the primary concern in section 300 cases is whether the parent understands the proceedings and can assist the attorney in protecting the parent's interests in the companionship, custody, control and maintenance of the child.13 We follow that standard here and conclude a guardian ad litem should be appointed if the requirements...
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Guardians Ad Litem— Part 1 Serving Adults With Diminished Capacity in Domestic Relations Matters
...[43] Though it must be noted that CRS § 15-10-201 specifically excludes GALs from the definition of guardian. [44] In re Sara D., 104 Cal.Rptr.2d 909, 913, and 911 (Cal.App. 2001). [45] M.M., 726 P.2d at 1117 (referring to "[a] guardian ad litem or other like fiduciary representing the mino......