In re A.U. v. Sonia U.
| Decision Date | 12 July 2006 |
| Docket Number | No. D047847.,D047847. |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re A.U., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Sonia U., Defendant and Appellant. |
Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant.
John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Carl Fabian, under appointment by the Court of Appeal, for Minor.
Sonia U. appeals from a judgment terminating parental rights to her daughter, A.U., under Welfare and Institutions Code section 366.26.1 She contends the court violated her constitutional right to due process of law when it appointed a guardian ad litem on her behalf without first providing her with notice and an opportunity to be heard. Sonia also maintains that neither the court nor the social services agency met its duty to inquire into A.U.'s American Indian heritage, and that they did not provide notice to the child's prospective tribes and the Bureau of Indian Affairs (BIA) in accordance with the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.; § 294; Cal. Rules of Court, rule 1439(f)).2
We hold that the court erred when it appointed a guardian ad litem to act on Sonia's behalf without first providing her with notice and an opportunity to be heard regarding the appointment. We reject respondent's argument that evidence of mental illness supports a finding that Sonia was incompetent. However, because there is no suggestion in the record that the error affected the dependency proceedings or that Sonia's counsel and guardian ad litem did not protect her rights, we conclude that the error was harmless beyond reasonable doubt. We also conclude that the ICWA notice was deficient. Accordingly, we reverse and remand with directions.
On January 20, 2005, the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), alleging that newborn A.U. was at risk of serious physical harm or illness due to her mother's inability to provide regular care. A.U.'s mother, Sonia, had a history of mental illness and drug abuse and was living in a residential care facility for mentally disabled adults. Over the previous 12 years, the Agency had removed five other children from her custody. Sonia was not aware of her pregnancy until she gave birth to A.U. at the care facility. The baby was detained in foster care after her release from the hospital. In March, A.U. was placed in the home of a maternal aunt (Aunt) who had been caring for three of A.U.'s siblings for more than 10 years.
In 1993, the Agency removed Sonia's two children from her care and initiated dependency proceedings. At that time, possibly due to methamphetamine use, Sonia was experiencing auditory hallucinations that told her to abuse her children. Another infant was detained at birth in 1994. After reunification services proved ineffective, the juvenile court placed all three of these children in long-term foster care with Aunt in 1995. Two other children, born in 1996 and 1998, were also the subjects of dependency proceedings. They were later adopted together by a nonrelative family.
The Agency was unable to identify A.U.'s father from the limited information Sonia provided.
At the detention hearing, the court appointed an attorney from the alternate public defender's office to represent Sonia, who was not present. The court advised Sonia's attorney to request a special hearing if, after meeting with Sonia, her attorney believed that the appointment of a guardian ad litem on Sonia's behalf would be appropriate. The court deferred findings on the applicability of the ICWA, detained A.U. in foster care, and ordered the Agency to provide Sonia with supervised visitation and appropriate reunification services.
Sonia was not present at the February 10, 2005 jurisdiction/disposition hearing. The court continued the hearing at the request of Sonia's attorney, who had not yet met with her. On March 1, Sonia's attorney asked the court to appoint a guardian ad litem for Sonia. She reported that Sonia had made inconsistent statements about how she wished to proceed, and that she was unable to provide the name of her treating physician. Sonia's attorney did not believe that Sonia could assist her in determining how to proceed with the case. Pursuant to her attorney's request, the court appointed a guardian ad litem for Sonia and continued the hearing to April 4. Sonia was not served with the appointment order.
Sonia did not appear at the continued jurisdiction/disposition hearing. Her attorney requested a continuance because neither the attorney nor Sonia's guardian ad litem had been able to meet with Sonia before the hearing. The court denied the motion. Based on the evidence submitted in the detention and jurisdiction reports, the court found by clear and convincing evidence that the allegations of the section 300 petition were true. The court continued the disposition hearing to May 9.
At the disposition hearing, the Agency requested that the court bypass reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11).3 The court took judicial notice of the findings of facts and conclusions of law made in the dependency cases of A.U.'s siblings and found that Sonia had not made a reasonable effort to treat the problems that led to the removal of A.U.'s siblings from her care. The court denied Sonia reunification services and set a permanency plan hearing under section 326.66.
On May 11, Sonia's guardian ad litem filed a notice of intent to file a writ petition under rule 38.1. The alternate public defender's office contracted with outside associate counsel to assist with the writ. On June 13, associate counsel filed a letter with this court stating that, based on his review of the record, there were no viable issues for an extraordinary writ and that no writ petition would be filed.
On September 6, the Agency requested a 60-day continuance of the section 366.26 hearing to investigate A.U.'s Indian heritage and to provide proper notice of the permanency plan hearing to the Bureau of Indian Affairs (BIA) and to any tribes. The court continued the hearing to November 8. The Agency reported that A.U.'s great-great-great grandfather was a member of the "Huiechol" tribe of Mexico. A form attached to the report, Judicial Council form JV-135, stated that the great-great-great grandmother's tribe was located in "Rio Colorado — Fort Yuma, Santa Ysabel" and that she had attended an Indian school in Banning, California, in 1917. The Agency mailed notice of the November 8, 2005 permanency plan hearing to the BIA on November 4.
On November 8, on behalf of the Agency, county counsel requested a second 60-day continuance in order to provide notice to the tribes located in the areas mentioned in the Judicial Council form. The court denied the motion and went on to find that the ICWA did not apply because the only tribe that was specifically identified was located in Mexico. On Sonia's behalf, her attorney requested a trial on the Agency's recommendation to terminate her parental rights.
In its report prepared for the permanency plan hearing pursuant to section 366.26, the Agency reported that A.U. was in good health, and that she was meeting developmental milestones. She showed signs of bonding with Aunt. A.U. was attached to her three siblings who also lived with Aunt. Aunt loved A.U. She wanted to adopt her in the event parental rights were terminated. Aunt planned to allow Sonia to continue to have supervised visits with A.U. and her other children. In addition to being specifically adoptable, the social worker opined that A.U. was generally adoptable due to her age, good health and appropriate development.
The social worker believed that Sonia was seriously mentally ill and unable to care for A.U. Sonia had been hospitalized periodically due to her mental health condition. She suffered from extreme mood swings and resisted psychiatric treatment. Sonia did not take her medication consistently. She was unable to manage her own affairs and was dependent upon a representative payee to ensure that she had appropriate food, shelter and clothing.
Based on Sonia's past history of services, the social worker concluded that Sonia was unable or unwilling to improve her circumstances. Sonia loved her children but lacked basic parenting skills. For example, she had to be shown how to give A.U. a bottle. On another visit, Sonia laid A.U. on a couch and then became distracted. The social worker intervened to show Sonia how to keep the baby from falling.
Sonia did not attend the permanency plan hearing. The parties submitted on the report. Counsel did not present any affirmative evidence on Sonia's behalf. The court made the findings required under section 366.26 and terminated parental rights. On Sonia's behalf, the guardian ad litem filed notice of this appeal.
On April 11, 2006, Sonia filed a motion requesting that this court take judicial notice of the United States Department of the Interior's lists of federally recognized Indian tribes and designated tribal agents for service of notice, and an article about the history of federally funded Indian schools. On April 28 and May 24, the Agency filed motions to augment the record4 with a social worker's report dated May 24, 2005, and a declaration of a superior court clerk.5
"`. . . "Making the appellate court the trier of fact is not the solution." . . .'" (In re I.G. (2005) 133 Cal.App.4th 1246, 1253, 35 Cal.Rptr.3d 427; see In re Zeth S. (2003) 31 Cal.4th 396, 2 Cal.Rptr.3d 683, 73 P.3d 541.) Because we remand for compliance with ICWA, the Agency's motions to augment the record...
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